McNair v. Dwyer et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
BRANDON MCNAIR,
Plaintiff,
v.
JUDGE MICHAEL DWYER, Oneida County 	6:25-CV-0719
Court; OFFICER JOSEPH CIMPI, Utica Police 	(DNH/ML)
Department; DISTRICT ATTORNEY SCOTT
MCNAMARA, Oneida County District Attorney’s
Office; COUNTY OF ONEIDA, NEW YORK, as
a municipal entity liable under Monell v. Dep’t of
Soc. Servs.; SHERIFF ROBERT M. MACIOL,
Oneida County Sheriff Department; and
JOHN/JANE DOE, Police Officers,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
BRANDON MCNAIR
Plaintiff, Pro Se
1522 Oneida Street, Apartment #3
Utica, New York 13501
FOTI HENRY PLLC 	DANIEL CARTWRIGHT,
Counsel for Officer Joseph Cimpi 	ESQ.
403 Main Street, Suite 225 	DAVID H. WALSH, ESQ.
Buffalo, New York 14203
MIROSLAV LOVRIC, United States Magistrate Judge
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ORDER and REPORT-RECOMMENDATION
I. 	BACKGROUND
A. 	Procedural History
Plaintiff Brandon McNair (“Plaintiff”) commenced this civil rights action pro se by the
filing of a complaint together with an application to proceed in forma pauperis (“IFP”). (Dkt.
Nos. 1, 2.)
On July 11, 2025, Plaintiff filed an amended complaint as of right. (Dkt. No. 5.) On
August 20, 2025, Plaintiff filed a motion for leave to file a second amended complaint, which is
currently pending. (Dkt. No. 8.)
For the reasons set forth below, Plaintiff’s motion to file a second amended complaint is
granted (Dkt. No. 8), Plaintiff’s application for leave to proceed IFP (Dkt. No. 2) is denied
without prejudice, and it is recommended that the Second Amended Complaint (Dkt. No. 8,
Attach. 4) be dismissed.
B. 	Motion for Leave to File Second Amended Complaint
Under Federal Rule of Civil Procedure 15(a), absent certain circumstances not at play
here, a party may amend its pleading only with the opposing party’s written consent or the
court’s leave. See Fed. R. Civ. P. 15(a)(1)-(2). Rule 15(a)(2) requires that a court “freely give
leave when justice so requires.” See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200
(2d Cir. 2007). But a court may, in its discretion, deny leave to amend “for good reason,
including futility, bad faith, undue delay, or undue prejudice to the opposing party.” MSP
Recovery Claims, Series LLC v. Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023) (quoting
Bensch v. Est. of Umar, 2 F.4th 70, 81 (2d Cir. 2021). A request to amend is futile where the
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problem with the claim is “substantive” and “better pleading will not cure it.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Because Plaintiff’s Complaint (Dkt. No. 1) and Amended Complaint (Dkt. No. 5) have
not been reviewed by the Court pursuant to 28 U.S.C. § 1915 and the opposing parties have not
responded to this action, Plaintiff’s motion to file a second amended complaint is granted. The
Clerk of the Court is directed to file Dkt. No. 8, Attach. 4 on the docket of this action as
Plaintiff’s Second Amended Complaint, which is the operative pleading.1
C. 	Second Amended Complaint
Construed as liberally2 as possible, the Second Amended Complaint alleges that
Plaintiff’s civil rights were violated by Defendants Judge Michael Dwyer, Officer Joseph Cimpi,
District Attorney Scott McNamara, County of Oneida, Sheriff Robert M. Maciol, and John/Jane
Doe police officers (collectively “Defendants”). (See generally Dkt. No. 8, Attach. 4.)
The Second Amended Complaint alleges that on July 27, 2020, Plaintiff was arrested by
the Utica Police Department “following a vague radio description.” (Dkt. No. 8, Attach. 4 at 2.)
Plaintiff alleges that he was held without bail and on August 4, 2020, his attorney filed a motion
for bail in the amount of $5,000 cash or $10,000 bond. (Id.) The Second Amended Complaint
alleges that on August 6, 2020, Defendant Dwyer issued an order setting bail at $25,000 cash,
$50,000 bond, or $75,000 partially secured bond. (Id.) Plaintiff alleges that on August 12, 2020,
Defendant Dwyer held an off the record hearing without any parties present and modified bail to
1 	The Clerk of the Court shall add (1) Sheriff Robert M. Maciol, Oneida County Sheriff
Department, and (2) John/Jane Doe, police officers, to the docket as defendants in this matter.
2 	The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
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$25,000 cash, $50,000 bond, or $250,000 partially secured bond. (Dkt. No. 8, Attach. 4 at 3.)
Plaintiff alleges that he immediately filed grievances and complaints with the New York State
Commission on Judicial Conduct. (Id.)
Plaintiff alleges that on August 4, 2020, his attorney filed a verified petition for habeas
corpus in Oneida County Supreme Court alleging unconstitutional bail practices and unlawful
pretrial detention. (Id.) Plaintiff alleges that this motion was “functionally obstructed,
intercepted by [Defendant] Dwyer or his staff.” (Id.)
The Second Amended Complaint alleges that on October 26, 2020, Plaintiff was released
on recognizance based on “a 45-day ‘unindicted’ release motion,” but Plaintiff “believes this
release was not a legitimate act of judicial grace, but a fraudulent mooting tactic aimed at
evading judicial review of the habeas petition” because Executive Order 202.67 suspended the
statutory 45-day release period due to the COVID-19 pandemic. (Dkt. No. 8, Attach. 4 at 3.)
Plaintiff alleges that in May or June of 2021, Defendant Dwyer added a short-notice
calendar date and Plaintiff appeared the following day due to travel but Defendant Dwyer issued
a warrant and revoked bail, which trigged Plaintiff’s reincarceration. (Dkt. No. 8, Attach. 4 at 3.)
The Second Amended Complaint alleges that Plaintiff filed a motion for Defendant Dwyer to
recuse himself but the motion was denied. (Id.) Plaintiff alleges that a trial commenced that
included three Black jurors—“a statistical anomaly in Oneida County”—but before deliberations
began, Defendant Dwyer declared a mistrial on COVID grounds. (Id. at 4.) The Second
Amended Complaint alleges that the Appellate Division unanimously granted a writ of
prohibition ruling that Defendant Dwyer abused his discretion in declaring a mistrial. (Id.)
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Plaintiff alleges that Defendant McNamara, Maciol, “and other state actors took no
corrective action, despite receiving letters and complaints detailing these abuses.” (Dkt. No. 8,
Attach. 4 at 4.)
Based on these factual allegations, Plaintiff asserts the following ten causes of action: (1)
a claim that his due process rights were violated pursuant to the Fourteenth Amendment and 42
U.S.C. § 1983 based on (a) Defendant Dwyer’s bail modification on August 12, 2020, (b)
Defendant Dwyer’s interception of his habeas corpus petition on August 20, 2020, and (c)
Plaintiff’s release from custody on October 26, 2020, which was improper given the Executive
Orders suspending statutory deadlines and occurred merely to avoid judicial review of Defendant
Dwyer’s unconstitutional conduct; (2) a claim of malicious prosecution in violation of the Fourth
Amendment and 42 U.S.C. § 1983 based on the improper continued prosecution of Plaintiff after
the mistrial was declared; (3) a claim of unlawful search and seizure in violation of the Fourth
Amendment and 42 U.S.C. § 1983 based on the unlawful stop and frisk of Plaintiff without
reasonable suspicion on July 27, 2020; (4) a claim of Monell liability based on Defendant
Dwyer’s improper bail modification on August 12, 2020, Defendant Dwyer’s improper
interception of Plaintiff’s habeas corpus petition on August 20, 2020, and Defendant
McNamara’s complacency with Plaintiff’s release on October 26, 2020; (5) a claim of
conspiracy to obstruct justice based on Defendants Dwyer and Maciol not responding to
Plaintiff’s habeas corpus petition; (6) a claim of civil rights conspiracy in violation of 42 U.S.C.
§ 1985(3) based on Defendants Dwyer, Maciol, and McNamara participating in a coordinated
pattern of discriminatory acts designed to deprive Plaintiff of constitutional protections; (7) a
claim that Defendants McNamara and Maciol negligently failed to intervene despite having
knowledge of constitutional violations pursuant to 42 U.S.C. § 1986; (8) a claim of retaliation in
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violation of the First Amendment and 42 U.S.C. § 1983 based on Defendant Dwyer and
McNamara’s mistrial and attempted retrial after Plaintiff filed a judicial conduct complaint; (9) a
claim that Plaintiff’s right to equal protection of the law pursuant to the Fourteenth Amendment
and 42 U.S.C. § 1983 was violated because Defendants Dwyer and McNamara consistently have
violated the rights of Black and brown individuals accused of crimes; and (10) a claim that
Plaintiff’s rights pursuant to the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983 were
violated by Defendant Dwyer improperly declaring a mistrial which subjected Plaintiff to a
second prosecution. (Dkt. No. 8, Attach. 4 at 4-8.) As relief, Plaintiff seeks, among other things,
compensatory and punitive damages. (Id. at 9.)
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 grant IFP status if it determines that the plaintiff is unable to pay the required fee.
28 U.S.C. § 1915(a)(1).3 Pursuant to 28 U.S.C. § 1915, where a plaintiff seeks leave to proceed
IFP, the court must determine whether the plaintiff has demonstrated sufficient economic need to
proceed without prepaying the required filing fee. 28 U.S.C. § 1915(a)(1).
The decision of whether to grant an application to proceed IFP rests within the sound
discretion of the court. Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983). The Court must
be satisfied “that the person is unable to pay such fees or give security therefor” prior to granting
3 	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); see also Fridman
v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).
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IFP status. 28 U.S.C. § 1915(a)(1). To make this threshold showing, a plaintiff must
demonstrate “that paying such fees would constitute a serious hardship on the plaintiff, not that
such payment would render plaintiff destitute.” Fiebelkorn v. United States, 77 Fed. Cl. 59, 62
(Fed. Cl. 2007) (citing Adkins v. E.l. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)); see
also Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (“Section 1915[a] does not
require a litigant to demonstrate absolute destitution[.]”); accord, Lee v. McDonald’s Corp., 231
F.3d 456, 459 (8th Cir. 2000). As the Second Circuit has noted, “no party must be made to
choose between abandoning a potential meritorious claim or foregoing the necessities of life.”
Potnick, 701 F.2d at 244 (citing Adkins, 335 U.S. at 339).
Here, Plaintiff’s submission is incomplete. For example, in response to question number
2 on the IFP application—which states “If I am employed, my employers name and address
are:”—Plaintiff writes “N/A.” (Dkt. No. 2 at ¶ 2.) Notwithstanding, Plaintiff states that his
gross pay or wages are $1,200, and his take-home pay or wages are $800 but fails to specify the
pay period or regularity within which he earns that income. (Id.) In addition, under question
number 3, which solicits information regarding other income that Plaintiff has received in the
past 12 months, Plaintiff checks no to all options. (Id. at ¶ 3.)
Accordingly, Plaintiff’s IFP application is denied without prejudice and with leave to
renew.
If Plaintiff wishes to proceed with this action, he must comply with the filing fee
requirements within thirty (30) days of the filing date of this Decision and Order. Plaintiff is
advised that his failure to timely comply with this Decision and Order will result in the issuance
of a report and recommendation to the assigned district judge that the action be dismissed.
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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
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.
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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
After carefully considering the matter, I recommend that Plaintiff’s Second Amended
Complaint (Dkt. No. 8, Attach. 4) be dismissed in its entirety.
A. 	Timeliness
All of Plaintiff’s claims—except the malicious prosecution claim—are untimely.4
The Supreme Court has held that, “[b]ecause § 1983 claims are best characterized as
personal injury actions . . . a State’s personal injury statute of limitations should be applied in all
§ 1983 claims.” Owens v. Okure, 488 U.S. 235, 240-41 (1989). The Supreme Court found in
particular that New York’s general or residual statute related to personal injury actions should be
applied, which sets a three-year statute of limitations. Owens, 488 U.S. at 249-50; accord,
Phillips v. City of New York, 304 F. Supp. 3d 305, 311 (E.D.N.Y. 2018); see Ovalle v. Suffolk
Cnty., 21-CV-5371, 2024 WL 3986720, at *3 (E.D.N.Y. Aug. 29, 2024) (noting that the statute
4 	The statute of limitations for Plaintiff’s malicious prosecution claim did not begin to
accrue until the prosecution terminated in Plaintiff’s favor. Harris v. Tioga Cnty., 663 F. Supp.
3d 212, 234 (N.D.N.Y. 2023) (Hurd, J.) (citing Spak v. Phillips, 857 F.3d 458, 462 (2d Cir.
2017)). Although the Second Amended Complaint does not set forth when that occurred, the
Court may take judicial notice of McNair v. McNamara, 206 A.D.3d 1689 (N.Y. App. Div. 4th
Dep’t June 10, 2022), which prohibited Plaintiff’s criminal retrial. Hence, Plaintiff’s malicious
prosecution claim began to accrue on June 10, 2022, and appears timely given that this action
was commenced on June 9, 2025.
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of limitations for a claim pursuant to 42 U.S.C. § 1985 is three years); Ramirez v. County of
Nassau, 345 F.R.D. 397, 404 (2024) (“Federal courts apply the state law statute of limitations for
personal injury actions for claims under Sections 1983 and 1985, and in New York that statute of
limitations is three years.”). Further, claims pursuant to 42 U.S.C. § 1986 are subject to “a strict
one-year statute of limitations.” Doe 1 v. County of Rockland, 21-CV-6751, 2025 WL 945873,
at *11 (S.D.N.Y. Mar. 28, 2025); see Abadi v. Greyhound Lines, Inc., 23-CV-7645, 2024 WL
5155601, at *9 (S.D.N.Y. Dec. 18, 2024) (“Section 1986 claims have a one-year statute of
limitations.”).
The statute of limitations begins “when a plaintiff has a complete and present cause of
action, that is when the plaintiff can file suit and obtain relief,” or, in other words, “when the
wrongful act or omission results in damages, . . . and once the plaintiff knows or has reason to
know of the injury which is the basis of his action.” McDonough v. Smith, 898 F.3d 259, 265 (2d
Cir. 2018) rev’d on other grounds McDonough v. Smith, 139 S.Ct. 2149 (2019).
In this case, Plaintiff’s Second Amended Complaint is clear that the alleged constitutional
claims are premised on conduct that took place in 2020. (See generally Dkt. No. 8, Attach. 4.)
Plaintiff did not file his Complaint (Dkt. No. 1) in this action until June 9, 2025, well after the
three-year limitations period expired.5
5 	The failure to file an action within the limitations period is an affirmative defense, and
thus, a plaintiff is not required to plead that the case is timely filed. See Abbas v. Dixon, 480
F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence of an
affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See
Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011)
(“[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain
circumstances where the facts supporting the statute of limitations defense are set forth in the
papers plaintiff himself submitted.”) (internal quotation marks and citation omitted); Pino v.
Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on
statute of limitations grounds).
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I also find that tolling is not warranted under the circumstances alleged. “Although the
Second Circuit recognizes the continuing violation doctrine, it has qualified that the doctrine
applies only to claims ‘composed of a series of separate acts that collectively constitute one
unlawful practice,’ or ‘claims that by their nature accrue only after the plaintiff has been
subjected to some threshold amount of mistreatment.’” Hall v. Clinton Cnty., 18-CV-1405, 2020
WL 1923236, at *5 (N.D.N.Y. Apr. 21, 2020) (Suddaby, C.J.) (quoting Gonzalez v. Hasty, 802
F.3d 212, 220 (2d Cir. 2015)). Moreover, equitable tolling is available in “rare and exceptional”
cases where “extraordinary circumstances prevented a party from timely performing a required
act,” and “the party acted with reasonable diligence throughout the period” to be tolled. Walker
v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005); see also Gonzalez v. Hasty, 651 F.3d 318, 322
(2d Cir. 2011) (“Equitable tolling is an extraordinary measure that applies only when plaintiff is
prevented from filing despite exercising that level of diligence which could reasonably be
expected in the circumstances.”). I recommend that the Court decline to find the continuing
violation doctrine or equitable tolling applicable to Plaintiff’s claims and find that there is no
other apparent basis for tolling the statute of limitations.
As a result, I recommend that Plaintiff’s claims (except his malicious prosecution claim)
be dismissed as time-barred.
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B. 	Claims Against Defendant Dwyer6
Judges are absolutely immune from suit for claims seeking damages for any actions taken
within the scope of their judicial responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991).
Generally, “acts arising out of, or related to, individual cases before [a] judge are considered
judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad
faith or malice cannot overcome judicial immunity.” Bliven, 579 F.3d at 209. Judicial immunity
does not apply when a judge takes action outside his or her judicial capacity, or when a judge
takes action that, although judicial in nature, is taken “in the complete absence of all
jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991); see also Bliven, 579 F.3d at 209-10
(describing actions that are judicial in nature). However, “the scope of [a] judge’s jurisdiction
must be construed broadly where the issue is the immunity of the judge.” Stump v. Sparkman,
435 U.S. 349, 356 (1978).
In contrast, “a judge is not absolutely immune . . . from a suit for prospective injunctive
relief.” Mireles v. Waco, 502 U.S. 9, 10 n.1 (1991) (citing Pulliam v. Allen, 466 U.S. 522, 536-
6 	On June 12, 2023, Plaintiff filed an action in this Court asserting claims against the Utica
Police Department, Oneida County Courts, and Defendants Dwyer and McNamara. McNair v.
Utica Police Dep’t., 6:23-CV-0699 (DNH/ATB) (“McNair I”). That action was dismissed on
August 1, 2023, after a sua sponte review of the complaint pursuant to 28 U.S.C. § 1915.
(McNair I, Dkt. No. 5.) Plaintiff’s allegations in McNair I against Defendants Dwyer and
McNamara functionally mirror those set forth in this action. Compare McNair v. Utica Police
Dep’t, 23-CV-0699, 2023 WL 4935993, at *2 (N.D.N.Y. June 26, 2023) (Baxter, M.J.), report
and recommendation adopted, 2023 WL 4931609 (N.D.N.Y. Aug. 1, 2023) (Hurd, J.), with Dkt.
No. 8, Attach. 4. “A plaintiff cannot commence a new action seeking to review the same issues
that this Court already decided against him.” Phillips v. Schenectady Child Support Unite, 24-
CV-0853, 2025 WL 895035, at *4 n.10 (N.D.N.Y. Mar. 24, 2025) (Evangelista, M.J.), report
and recommendation adopted, 2025 WL 1191320 (N.D.N.Y. Apr. 24, 2025) (Sannes, C.J.).
Hence, collateral estoppel may be another alternative basis upon which this Court may dismiss
the claims set forth in the Second Amended Complaint against Defendant Dwyer. See Ali v.
Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (“[C]ollateral estoppel applies when: (1) the issues in
both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and
actually decided, (3) there was a full and fair opportunity for litigation in the prior proceeding,
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43 (1984)); Shtrauch v. Dowd, 651 F. App'x 72, 73 (2d Cir. 2016) (summary order) (“[J]udicial
immunity does not bar a claim for prospective injunctive and declaratory relief.”). A court’s
ability to award injunctive relief against a judicial officer under Section 1983 is strictly limited.
Under Section 1983, “in any action brought against a judicial officer for an act or omission taken
in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. “A plaintiff
seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury
requirement but must show a likelihood that he or she will be injured in the future.” Deshawn E.
by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998); Shtrauch, 651 F. App’x at 74 (holding
that plaintiff was not entitled to declaratory relief against judicial officer where plaintiff “alleges
only past conduct and does not seek to prevent an ongoing or future violation of federal law”).
Plaintiff asserts claims that arise from the actions of Defendant Dwyer in his capacity as a
judge in Oneida County Court. (Dkt. No. 8, Attach. 4 at 1-4.) The Second Amended Complaint
fails to allege facts plausibly suggesting that Defendant Dwyer was acting outside of his judicial
capacity or in the absence of jurisdiction. (See generally Dkt. No. 8, Attach. 4.) Hence,
Defendant Dwyer is immune from suit seeking monetary damages. See McNair v. Utica Police
Dep’t, 23-CV-0699, 2023 WL 4935993, at *3 (N.D.N.Y. June 26, 2023) (Baxter, M.J.)
(recommending dismissal of Plaintiff’s claims against Defendant Dwyer based on the doctrine of
judicial immunity and noting that “[t]o the extent that plaintiff alleges that his habeas corpus
petition was not properly before Judge Dwyer, Article 70 of the New York Civil Practice Law
and (4) the issues previously litigated were necessary to support a valid and final judgment on
the merits.”) (internal quotation marks and citations omitted). Plaintiff’s claims against
Defendant Dwyer in McNair I were dismissed based on judicial immunity and sovereign
immunity grounds. McNair, 2023 WL 4935993, at *3.
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and Rules specifically authorizes a petition for the writ to be made to a county judge being or
residing within the county in which the petitioner is detained.”), report and recommendation
adopted, 2023 WL 4931609 (N.D.N.Y. Aug. 1, 2023) (Hurd, J.).
Moreover, Plaintiff is not entitled to injunctive relief in this action against Defendant
Dwyer because the Second Amended Complaint “allege[d] neither the violation of a declaratory
decree, nor the unavailability of declaratory relief,” despite the availability of mechanisms for
such relief. Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999). “[D]eclaratory relief against a
judge for actions taken within his or her judicial capacity is ordinarily available by appealing the
judge’s order.” Davis v. Campbell, 13-CV-0693, 2014 WL 234722, at *9 (N.D.N.Y. Jan. 22,
2014) (Baxter, M.J.); see Brik v. Brodie, 23-CV-4330, 2023 WL 4373557, at *1 (E.D.N.Y. July
6, 2023) (dismissing the plaintiff's claims for injunctive relief against judge, inter alia, because
plaintiff “does not seek to remedy a harm that is truly prospective, [and plaintiff] does [not] show
any entitlement to declaratory relief” based on the judge’s past conduct).
As a result, I recommend that Plaintiff’s claims against Defendant Dwyer in his
individual capacity be dismissed based on the doctrine of judicial immunity.
Further, the Second Amended Complaint must be dismissed as against named Defendant
Dwyer in his official capacity because he is immune from suit pursuant to sovereign immunity.
The Second Circuit has ruled that “the New York State Unified Court System is unquestionably
an arm of the State, and is entitled to Eleventh Amendment sovereign immunity.” Gollomp v.
Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). Similarly, judges within the New York State Unified
Court System are entitled to Eleventh Amendment immunity to the extent they are sued in their
official capacity. See Aron v. Becker, 48 F. Supp. 3d 347, 366 (N.D.N.Y. 2014) (dismissing
claim against a Delaware County judge on sovereign immunity grounds). “As . . . Judge Dwyer
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[is an] arm[] of the State, [he is] entitled to Eleventh Amendment immunity, and it is
recommended that the [Second Amended C]omplaint against [him] be dismissed with prejudice.”
McNair, 2023 WL 4935993, at *3.
C. 	Claims Against Defendant McNamara7
“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
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,
7 	Plaintiff’s claims against Defendant McNamara in McNair I were dismissed based on the
doctrine of prosecutorial immunity. McNair, 2023 WL 4935993, at *4-5. Hence, in the
alternative, Plaintiff’s claims against Defendant McNamara may be dismissed based on the
doctrine of collateral estoppel.
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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 Second Amended Complaint appears to allege that Defendant McNamara, as District
Attorney, (1) acquiesced to Defendant Dwyer’s release of Plaintiff on October 26, 2020, and (2)
sought to re-try Plaintiff after Defendant Dwyer improperly sua sponte declared a mistrial. (See
generally Dkt. No. 8, Attach. 4.) Based on these allegations, Defendant McNamara is entitled to
prosecutorial immunity for his actions as a 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 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 McNamara in his
official capacity, as an employee of the Oneida 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 McNamara be
dismissed based on the doctrine of prosecutorial and sovereign immunity.
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D. 	Malicious Prosecution Claim Against Defendant Cimpi
After carefully considering the matter, I recommend that Plaintiff’s malicious prosecution
claim against Defendant Cimpi—which appears to be the only claim asserted against him—be
dismissed for failure to state a claim upon which relief may be granted.
To prevail on a claim for malicious prosecution under New York law, a plaintiff must
establish that “(1) the defendant either commenced or continued a criminal proceeding against
him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the
criminal proceeding; and (4) that the criminal proceeding was instituted in actual malice.”
Banyan v. Sikorski, 17-CV-4942, 2021 WL 1163653, at *4 (S.D.N.Y. Mar. 26, 2021) (quoting
Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984)).
“To initiate a prosecution, a defendant must play an active role in the prosecution, such as
giving advice and encouragement or importuning the authorities to act.” Rodriguez v. City of
New York, 590 F. Supp. 3d 518, 534 (E.D.N.Y. 2022). Under New York law, courts have
concluded that officers “initiate” a criminal proceeding when a plaintiff can “show[ ] that
officers brought formal charges and had the person arraigned, . . . or filled out complaining and
corroborating affidavits, . . . or swore to and signed a felony complaint.” Llerando-Phipps v.
City of New York, 390 F. Supp. 2d 372, 382-83 (S.D.N.Y. 2005) (citations omitted).
“No claim for malicious prosecution can survive if there was probable cause for the
prosecution.” Buari v. City of New York, 530 F. Supp. 3d 356, 384 (S.D.N.Y. 2021) (citing Boyd
v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003)). A grand jury indictment establishes a
presumption of probable cause that “may be rebutted by evidence that the indictment was
procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in
bad faith.” Haughey v. County of Putnam, 18-CV-2861, 2022 WL 4468066, at *11 (S.D.N.Y.
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Sept. 26, 2022) (quoting Stansbury v. Wertman, 721 F.3d 84, 95 (2d Cir. 2013)). “[W]here a
plaintiff’s only evidence to rebut the presumption of the indictment is his version of events,
courts will find such evidence to be nothing more than mere conjecture and surmise that the
plaintiff’s indictment was procured as a result of conduct undertaken by the defendants in bad
faith, which is insufficient to rebut the presumption of probable cause.” Johnson v. McMorrow,
19-CV-6480, 2023 WL 1797063, at *5 (S.D.N.Y. Feb. 7, 2023) (quoting Brandon v. City of New
York, 705 F. Supp. 2d 261, 272-73 (S.D.N.Y. 2010)); see also Merrill v. Copeland, 19-CV-1240,
2022 WL 3212075, at *16 (N.D.N.Y. Aug. 9, 2022) (plaintiff’s failure to explain how the
proceedings before the grand jury were “tainted” insufficient to rebut presumption of probable
cause created by grand jury indictment); Gutierrez v. New York, 18-CV-3621, 2021 WL 681238,
at *12 (E.D.N.Y. Feb. 22, 2021) (“Plaintiff has adduced no evidence from which a reasonable
juror could conclude that Defendants procured his indictment through fraud, perjury, or other
bad faith.”); Soto v. City of New York, 132 F. Supp. 3d 424, 456 (E.D.N.Y. 2015) (presumption
unrebutted where the “[p]laintiff merely surmises there was bad faith . . . [and] has neither
sought nor produced the grand jury minutes in this matter precluding any further evaluation of
what occurred before the grand jury”); Peterson v. Regina, 935 F. Supp. 2d 628, 643 (S.D.N.Y.
2013) (finding plaintiff’s offer of his “suspicions of impropriety as proof of the defendants’
misconduct before the grand jury” insufficient to rebut presumption).
Plaintiff alleges that Defendant Cimpi “misrepresented and omitted certain evidence to
satisfy probable cause standards at the grand jury proceedings and at trial alike.” (Dkt. No. 8,
Attach. 4 at 6.) This conclusory allegation, without more, is insufficient to plausibly suggest that
Defendant Cimpi “fabricated, falsified, or suppressed evidence, or otherwise acted in bad faith
regarding Plaintiff’s [criminal proceeding].” Diallo v. New York City, 23-CV-1238, 2025 WL
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522514, at *8 (S.D.N.Y. Feb. 18, 2025); see Canario v. County of Rockland, 24-CV-4470, 2025
WL 2522046, at *10 (S.D.N.Y. Sept. 2, 2025) (finding that the plaintiff’s allegation that the
defendant police officers “presented false evidence” to the grand jury, without further context or
details, failed to allege that the defendants falsified, fabricated, or suppressed evidence). “At
most, [Plaintiff’s] allegations show the weaknesses of the case against Plaintiff.” Diallo, 2025
WL 522514, *8.
With respect to Plaintiff’s allegations regarding what information was disclosed to the
grand jury, that is the function of the prosecutor who—as set forth above in Part IV.C. of this
Order and Report-Recommendation—is protected by absolute immunity. Diallo, 2025 WL
52214, at *9. “The initiation and pursuit of a criminal prosecution are ‘quintessential
prosecutorial functions protected by absolute immunity,’ and, in any case, ‘[a] prosecutor is not
required to present to the grand jury exculpatory evidence.’” Canario, 2025 WL 2522046, at
*10 (quoting Diallo, 2025 WL 52214, at *9; Jimenez v. City of New York, 23-CV-6751, 2025
WL 935233, at *15 (S.D.N.Y. Mar. 27, 2025)).
Plaintiff has failed to alleged facts plausibly suggesting a rebuttal of the presumption of
probable cause. See Canario, 2025 WL 2522046, at *10 (citing Diallo, 2025 WL 522514, at
*10; see also Thorpe v. Delta Air Lines, Inc., 24-CV-1089, 2024 WL 5007423, at *8 (E.D.N.Y.
Dec. 6, 2024) (finding plaintiff failed to overcome the presumption where his allegations
amounted to “mere conjecture and surmise that his indictment was procured as a result of
conduct undertaken by [defendant] in bad faith”); cf. Johnson v. United States, 759 F. Supp. 3d
425, 446, (S.D.N.Y. 2024) (finding plaintiffs overcame the presumption when alleging in detail
how “the prosecution’s case against [p]laintiffs rested in significant part on fabricated
evidence”); Bell v. City of New York, 22-CV-3251, 2023 WL 11916696, at *8 (E.D.N.Y. Sept. 1,
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2023) (finding plaintiff overcame the presumption where he “describe[d] in detail how
[defendants] coerced his confession, that they knew his confession was false, and that they
provided this falsified information to prosecutors for use in indicting and prosecuting
[p]laintiff”); Werkheiser v. Cnty. of Broome, 655 F. Supp. 3d 88, 105 (N.D.N.Y. 2023) (finding
plaintiff overcame the presumption when alleging that defendants “knew evidence was not
reliable, failed to observe typical guidelines for these types of investigations, and failed to
conduct further investigation,” but characterizing it as “a close call”)). As a result, I recommend
that Plaintiff’s malicious prosecution claim against Defendant Cimpi be dismissed for failure to
state a claim upon which relief may be granted.
E. 	Claims Against Defendant Maciol
Plaintiff fails to allege that Defendant Maciol maliciously prosecuted Plaintiff. (See
generally Dkt. No. 8, Attach. 4.) Thus, for the reasons set forth above in Part IV.A. of this Order
and Report-Recommendation, I recommend that Plaintiff’s claims against Defendant Maciol be
dismissed as untimely.
In the alternative, I recommend that Plaintiff’s claims against Defendant Maciol be
dismissed because the Second Amended Complaint fails to state a claim upon which relief may
be granted against him.
The Second Amended Complaint alleges that Defendant Maciol, the Sheriff of Oneida
County, failed to take any “corrective action, despite receiving letters and complaints detailing”
the constitutional violations that Plaintiff experienced. (Dkt. No. 8, Attach. 4 at 4; accord Dkt.
No. 8, Attach. 4 at 7.) Moreover, Plaintiff alleges that Defendant Maciol “who ultimately has
jurisdiction over securing orders and release” must have cooperated with Defendants McNamara
and Dwyer to release Plaintiff on October 26, 2020, to “cover-up” the “pending investigation by
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the New York State Commission on Judicial Conduct.” (Dkt. No. 8, Attach. 4 at 5; accord Dkt.
No. 8, Attach. 4 at 7.) Finally, Plaintiff alleges that Defendant Maciol did not “legitimately
[respond] to the habeas corpus” petition, which “showed coordinated efforts to obstruct justice,
[and] moot a habeas proceeding with a fraudulent nonexistent proceeding.” (Dkt. No. 8, Attach.
4 at 7.) These allegations are deficient for two reasons.
First, the Second Circuit recently clarified that “there is no special rule for supervisory
liability.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Instead, “a plaintiff must
plead and prove that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.’” Tangreti, 983 F.3d at 618 (quoting Iqbal, 556 U.S. at
676); see also Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (noting that a mere “linkage” to
the unlawful conduct through “the prison chain of command” (i.e., under the doctrine of
respondeat superior) is insufficient to show his or her personal involvement in that unlawful
conduct); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). Thus, the alleged failure by
Defendant Maciol to respond to Plaintiff’s letters is not enough to plausibly suggest that he was
personally involved in the alleged wrongdoing. See, e.g., Braxton v. Bruen, 17-CV-1346, 2021
WL 4950257, at *6 (N.D.N.Y. Oct. 25, 2021) (Sannes, J.) (“Even before Tangreti, receipt by a
supervisory official of a letter from an inmate, without more, has been insufficient to establish
the official’s personal involvement in a § 1983 constitutional claim.” (collecting cases), vacated
on other grounds, 21-2795, 2023 WL 7478331 (2d Cir. Nov. 13, 2023)); Quirk v. DiFiore, 20-
CV-5027, 2022 WL 268976, at *3 (S.D.N.Y. Jan. 28, 2022) (dismissing Section 1983 claim
against Chief Judge DiFiore where complaint alleged only that this official failed to respond to a
letter sent to her by the plaintiff on one occasion, which is insufficient to plausibly suggest her
personal involvement in the alleged constitutional violation); Tripathy v. Schneider, 21-CV-
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6392, 2021 WL 4504461, at *3 (W.D.N.Y. Oct. 1, 2021) (dismissing Section 1983 claim against
Commissioner of New York State Department of Corrections and Community Supervision and
Governor of New York where complaint alleged only that these officials “failed to respond” to
plaintiff’s complaints of wrongdoing, noting that “the failure to respond to letters protesting
unconstitutional actions and/or requesting an investigation is, without more, insufficient to
establish personal involvement”); Peck v. Cnty. of Onondaga, New York, 21-CV-651, 2021 WL
3710546, at *10 (N.D.N.Y. Aug. 20, 2021) (Hurd, J.) (“Peck’s allegation that [the Sheriff] failed
to remedy the discriminatory conduct against her at the Sheriff’s Office after June 18, 2020[,]
essentially argues that he was deliberately indifferent to an ongoing violation . . . . Yet Tangreti
demands more . . . . Plaintiff must allege that [the Sheriff] actively participated in a constitutional
violation, and this allegation does not further that end.”), reconsideration denied, 563 F. Supp.
3d 18 (N.D.N.Y. 2021); Brown v. Montone, 17-CV-4618, 2018 WL 2976023, at *4 (S.D.N.Y.
June 13, 2018) (“It is well-established that an allegation that an official ignored a prisoner’s letter
of protest and request for an investigation of allegations made therein is insufficient to hold that
official liable for the alleged violations.”) (quoting Allah v. Annucci, 16-CV-1841, 2017 WL
3972517, at *7 (S.D.N.Y. Sept. 7, 2017)); cf. McCrary v. Marks, 836 Fed. App’x 73, 74 (2d Cir.
2021) (explaining that where “the most [plaintiff] alleged is that [defendant] received his letter
and directed someone at the [agency] to respond to it[, t]hat is clearly not enough to state a
claim”)).
Second, Plaintiff fails to allege Defendant Maciol’s participation in any alleged
conspiracy.
To adequately allege a conspiracy under Section 1983 or 1985 a plaintiff must allege an
overt act in furtherance of the conspiracy. See Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
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1999) (holding that to adequately assert a conspiracy claim under § 1983 a plaintiff must allege:
(1) an agreement between two or more state actors or between a state actor and private actor; (2)
to act in concert to inflict an unconstitutional injury on plaintiff; and (3) an overt act committed
in furtherance of that goal causing damages); United Brotherhood of Carpenters & Joiners of
Am., Loc. 610, AFL-CIO v. Scott, 103 S. Ct. 3352, 3356 (1983) (“[T]o make out a violation of §
1985(3) . . . , the plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States.”). Plaintiff’s Second
Amended Complaint fails to assert any factual allegations plausibly alleging an agreement or
conspiracy among Defendants. (See generally Dkt. No. 8, Attach. 4.) Plaintiff’s allegations,
even when read with the utmost of special liberality, are impermissibly vague and conclusory to
plausibly suggest a conspiracy. Plaintiff alleges, with no factual support or causal connection,
that as a result of his release on October 26, 2020, and mistrial, Defendants conspired together to
violate his constitutional rights. In addition, Plaintiff fails to allege that Defendant Maciol took
any action in furtherance of the conspiracy.8
8 	“[C]omplaints containing only conclusory, vague, or general allegations that the
defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are
properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by
specific instances of misconduct.” Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir.
2002) (internal quotations and citation omitted); see also Webb v. Goord, 340 F.3d 105, 110-11
(2d Cir. 2003) (to maintain a conspiracy action, the plaintiff “must provide some factual basis
supporting a meeting of the minds”); Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (“A
complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a
person of constitutional rights cannot withstand a motion to dismiss.”).
In addition, a claim pursuant to Section 1985 requires that a plaintiff allege “some racial
or [ ] otherwise class-based animus behind the conspirators’ action.” Palmieri v. Lynch, 392 F.3d
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Moreover, a cause of action under Section 1986—for failure to prevent a conspiracy to
deprive a person of civil rights—may proceed only where there is “a viable conspiracy claim
under [§] 1985.” Feacher v. Intercontinental Hotels Grp., 563 F. Supp. 2d 389, 401 (N.D.N.Y.
2008) (quoting Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir.1994)). Because I
recommend dismissal of Plaintiff’s claim pursuant to § 1985, I recommend that his § 1986 claim
necessarily also be dismissed. Further, a cause of action under § 1986 requires a showing that
the defendant was aware of the alleged conspiracy. See Buck v. Bd. of Elections of the City of
N.Y., 536 F.2d 522, 524 (2d Cir. 1976). Plaintiff does not put forward any non-conclusory facts
plausibly showing that Defendant Maciol knew about the alleged conspiracy or what happened
to Plaintiff.
For each of these reasons, I recommend that Plaintiff’s claims against Defendant Maciol
be dismissed.
F. 	Claims Against Defendant County of Oneida
“[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
73, 86 (2d Cir. 2004). The Second Amended Complaint alleges that there were three Black
jurors and Defendant Dwyer improperly declared a mistrial. (Dkt. No. 8, Attach. 4 at 4.) In
addition, the Second Amended Complaint alleges that Defendants Dwyer, McNamara, and
County of Oneida “have proven a coordinated effort to consistently violate Black and brown
defendants’ rights with disparities in bail amounts, release orders, and penal sentences are often
longer.” (Id. at 8.) However, Plaintiff fails to provide any evidence, data, or specific allegations
to support these conclusory assertions.
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“(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) (internal quotations,
citations, and brackets omitted).
Plaintiff’s Monell claim necessarily fails because “[i]t is well-established that a Monell
claim cannot succeed without an underlying violation, and here there is no constitutional
violation.” Mastromonaco v. City of Westchester, 779 F. App’x 49, 51 (2d Cir. 2019); see also
DeRaffele v. City of New Rochelle, 15-CV-0282, 2017 WL 2560008, at *6 (S.D.N.Y. June 13,
2017) (“It is well-established that a Monell claim cannot lie in the absence of an underlying
constitutional violation.”). It is similarly well-established that “Monell does not provide a
separate cause of action . . . it extends liability to a municipal organization where that
organization’s failure to train, or the policies or customs that it has sanctioned, led to an
independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006). As set forth herein, Plaintiff has not plausibly alleged a constitutional violation against an
employee of Defendant County of Oneida. Without an “independent constitutional violation,”
Segal, 459 F.3d at 219, Plaintiff’s municipal liability claim against Defendant County of Oneida
must be dismissed.
Even if an underlying cause of action survived, Plaintiff has not plausibly alleged a
Monell claim against Defendant County of Oneida, necessitating dismissal on this independent
basis. Plaintiff essentially complains of discrete incidents during which Defendants McNamara
and Maciol—who are employed by Defendant County of Oneida as District Attorney and
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Sheriff, respectively—did not act properly. (See generally Dkt. No. 8, Attach. 4.) 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 County of Oneida.
As a result, I recommend that Plaintiff’s claims against Defendant County of Oneida be
dismissed for failure to state a claim upon which relief may be granted.
G. 	Claims Against Defendnats John/Jane Does
A careful review of the Second Amended Complaint reveals that Defendant John/Jane
Doe is listed in the caption and mentioned in the list of defendants. (Dkt. No. 8, Attach. 4 at 1-2.)
However, the Second Amended Complaint fails to allege any action or inaction on behalf of
Defendant John/Jane Doe. (See generally Dkt. No. 8, Attach. 4.)
“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
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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).
As a result, I recommend that Plaintiff’s claims against Defendant John/Jane Doe be
dismissed for failure to state a claim upon which relief may be granted.
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.).9
9 	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.
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In deference to plaintiff’s pro se status, and because a more detailed pleading could
potentially cure the defects identified against Defendants Cimpi, County of Oneida, Maciol, and
Jane/John Doe,10 the undersigned recommends dismissing Plaintiff’s claims without prejudice
and with leave to amend. However, the issue with Plaintiff’s claims against Defendants Dwyer
and McNamara are substantive such that a better pleading will not cure them. As a result, I
recommend that Plaintiff’s claims against Defendants Dwyer and McNamara be dismissed
without leave to replead. McNair, 2023 WL 4935993, at *6 (recommending “dismissal with
prejudice as to defendants Judge Dwyer . . . and DA McNamara, based on their absolute
immunity from suit.”).
If Plaintiff chooses to file a third 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). Further, a third amended complaint must address
how the statute of limitations does not foreclose Plaintiff’s claims. Finally, Plaintiff is informed
that any such amended complaint will replace the existing Second Amended 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
10 	It is unlikely that Plaintiff will be able to cure the timeliness defect associated with his
claims set forth above in Part IV.A. of this Order and Report-Recommendation.
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29
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
DENIED without prejudice; and it is further
ORDERED that should Plaintiff wish to proceed with this action, within thirty days from
the date of the filing of this Order and Report-Recommendation, he must either (1) pay the
$405.00 filing fee, or (2) submit a completed, signed, and IFP application in accordance with this
Order and Report-Recommendation. Plaintiff is advised that if he does not fully comply with
this Order and Report-Recommendation within thirty days, the undersigned will issue a report
and recommendation to the assigned district judge that the action be dismissed; and it is further
ORDERED that Plaintiff’s motion for leave to file a second amended complaint (Dkt.
No. 8) is GRANTED; and it is further
ORDERED that the Clerk of the Court shall file Dkt. No. 8, Attach. 4 on the docket of
this action as Plaintiff’s Second Amended Complaint; and it is further
ORDERED that the Clerk of the Court shall add (1) Sheriff Robert M. Maciol, Oneida
County Sheriff Department, and (2) John/Jane Doe police officers, to the docket of this action as
defendants; and it is further respectfully
RECOMMENDED that Plaintiff’s Second Amended Complaint (Dkt. No. 8, Attach. 4)
be DISMISSED (1) without prejudice and with leave to amend with respect to Plaintiff’s
claims against Defendants Cimpi, County of Oneida, Maciol, and John/Jane Doe, and (2)
without leave to amend with respect to Plaintiff’s claims against Defendants Dwyer and
McNamara pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
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30
ORDERED that the Clerk of the Court shall file a copy of this Order and Report-
Recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.11
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.12 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: February __, 2026
Binghamton, New York
11 	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).
12 	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).
20
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Abadi v. Greyhound Lines, Inc., Slip Copy (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Blue-Striped Flag
Appeal Filed by Abadi v. Greyhound Lines, Inc., 2nd Cir., January 7,
2025
2024 WL 5155601
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Aaron ABADI, Plaintiff,
v.
GREYHOUND LINES, INC., Defendant.
Case No. 23-cv-07645 (JLR)
|
Signed December 18, 2024
Attorneys and Law Firms
Aaron Abadi, New York, NY, Pro Se.
Nicholas P. Chrysanthem, Marshall Dennehey Warner
Coleman & Goggin, New York, NY, Whitley Victoria Smith,
Martenson, Hasbrouck & Simon LLP, New York, NY, for
Defendant.
OPINION AND ORDER
JENNIFER L. ROCHON, United States District Judge:
*1 Pro se Plaintiff Aaron Abadi (“Plaintiff” or
“Abadi”) brings this action against Greyhound Lines, Inc.
(“Greyhound” or “Defendant”), challenging Greyhound's
enforcement of the federal COVID-19 mask mandate. Abadi
asserts claims against Greyhound for discrimination on
the basis of disability in violation of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.;
the Rehabilitation Act of 1973, 29 U.S.C. § 720 et seq.; the
New York State Human Rights Law, N.Y. Exec. Law § 290
et seq. (“NYSHRL”); the New York City Human Rights Law,
N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”); and the
New Jersey Law Against Discrimination (“LAD”), among
other causes of action. Now before the Court is Defendant's
motion to dismiss the Complaint in its entirety. Dkt. 17
(“Br.”). For the following reasons, Defendant's motion is
GRANTED.
BACKGROUND
The Court accepts the factual allegations in the Complaint as
true and draws all reasonable inferences in Plaintiff's favor.
See Costin v. Glens Falls Hosp., 103 F.4th 946, 952 (2d
Cir. 2024). The Court also considers materials incorporated
by reference in the Complaint, integral to the Complaint, or
subject to judicial notice. See United States ex rel. Foreman
v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021); Michael Greco
Prods., Inc. v. RADesign, Inc., 112 F.4th 144, 148 n.1 (2d
Cir. 2024). Moreover, in light of Abadi's pro se status, the
Court construes the Complaint broadly. See, e.g., Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.
2006) (“It is well established that the submissions of a pro se
litigant must be construed liberally and interpreted ‘to raise
the strongest arguments that they suggest.’ ” (emphasis in
original) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006))).
I. Factual Allegations
Plaintiff Aaron Abadi, proceeding pro se, is a resident of
New York City. Dkt. 1 (“Compl.”) ¶ 1. Abadi “travel[s] a
lot” and visits, on average, “ten states or more each year.”
Id. ¶ 46. Abadi claims he was planning a “specific trip” to
California, Texas, and other parts of the country. Id. ¶ 6. Abadi
has a sensory processing disorder that makes it difficult for
him to wear anything around his face or head, including a
face mask. Id. ¶¶ 16-20; Dkts. 1-2, 1-3, 1-4. He maintains
that wearing a face mask causes him “extreme discomfort,”
including headaches, irritation, and other symptoms. Compl.
¶ 19.
Defendant Greyhound is headquartered in Dallas, Texas, and
is incorporated in the State of Delaware. Id. ¶ 2. Greyhound
operates bus services throughout the continental United
States, id. ¶ 12, and operates various bus terminals in New
York, including but not limited to the Port Authority Bus
Terminal in Manhattan, New York City, id. ¶ 7.
On March 11, 2020, COVID-19 was declared a pandemic.
Dkt. 1-5 at 3. COVID-19 caused “significant death and
hospitalizations, during the end of 2019, through 2020, and
continuing in 2021 and 2022.” Compl. ¶ 13. In response to
the global pandemic, the Center for Disease Control (“CDC”)
announced guidance requiring all persons to wear masks
in public places and on transportation services. Id. ¶ 14.
On or about February 1, 2021, the CDC issued an order
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directing conveyance operators to use best efforts to ensure
that any person on a conveyance wears a mask when boarding
or disembarking, and for the duration of travel. Dkt. 1-1
at 6; Requirement for Persons to Wear Masks While on
Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025,
8027 (Feb. 3, 2021). 1 The CDC's Order exempted “person[s]
with a disability who cannot wear a mask, or cannot safely
wear a mask, because of the disability as defined by the
Americans with Disabilities Act.” Requirement for Persons
to Wear Masks While on Conveyances and at Transportation
Hubs, 86 Fed. Reg. at 8027. The CDC Order further provided
that:
*2 Operators of conveyances or
transportation hubs may impose
requirements, or conditions for
carriage, on persons requesting an
exemption from the requirement to
wear a mask, including medical
consultation by a third party, medical
documentation by a licensed medical
provider, and/or other information as
determined by the operator, as well
as require evidence that the person
does not have COVID-19 such as
negative result from a SARS-CoV-2
viral test or documentation of recovery
from COVID-19.... Operators may
also impose additional protective
measures that improve the ability of
a person eligible for exemption to
maintain social distance (separation
from others by 6 feet), such as
scheduling travel at less crowded
times or on less crowded conveyances,
or seating or otherwise situating the
individual in a less crowded section
of the conveyance or transportation
hub. Operators may further require that
persons seeking exemptions from the
requirement to wear a mask request an
accommodation in advance.
Id. at 8027 n.8.
On August 20, 2021, the Transportation Security
Administration (“TSA”) extended the mask requirement for
individuals across all transportation networks throughout the
United States through January 18, 2022, including commuter
bus and rail systems. Dkt. 1-1 at 3-4.
On August 21, 2021, Abadi sent Greyhound an email, stating:
I have a sensory integration disorder, which is a medical
disability that causes me not to be able to wear a mask. I
carry around a doctor's letter (attached) to that effect, that
also states that I already had Covid, which would indicate
that there is no significant health risk. The DOT instructed
the airlines to allow people like me to fly without a mask.
I have already flown several times under those instructions.
CDC Guidelines and federal laws exempt someone like me
from wearing a mask. Federal ADA laws require that you
provide an accommodation for disabilities. I would like to
travel on your buses.
Can I travel on your buses without a mask?
Or can you provide me an accommodation that will allow
me to use your bus system?
Compl. ¶ 30.
Abadi's email appended a letter from his doctor at NYU
Langone Health asserting that he suffers from “extreme
sensitivity to touch,[ ]mostly in the area of his head,” and
that he was therefore “unable to wear face mask or face
shield,[ ]and should not be required to do so.” Dkt. 1-2. The
letter also represented that Abadi had “already recovered from
COVID” and that he was “not contagious.” Id. The letter does
not reflect the doctor's license number or signature, but it
is on NYU Langone Health's letterhead. Abadi's neurologist
has also stated, on a different form filed with the Florida
Commission on Human Relations, that his disability meets
the basic definition of disability under federal and state law.
Dkt. 1-4.
*3 Greyhound's ADA Compliance Support Team responded
the same day, outlining Greyhound's procedures for seeking
an exemption from the mask requirement. Compl. ¶ 31.
Greyhound instructed Abadi to contact the Greyhound ADA
Compliance Department with his medical documentation
at least 24 hours prior to travel. Id. Greyhound provided
an email address (ADA.Support@greyhound.com) and a
phone number (214-777-6050). Id. Specifically, Greyhound
indicated that Abadi would need to provide:
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1. Current medical documentation from a qualified
healthcare provider which identifies the disability and how
the disability prevents you, the passenger, from wearing
a mask and whether there is any action that can be taken
which would allow you to wear a mask; and,
2. Evidence of a negative COVID-19 test taken no earlier
than five days prior to planned travel.
Id. Greyhound further advised that, in the event Abadi
obtained an exemption, he would be required to “sit in the
front seat(s) designated for customers with disabilities” and to
“socially distance in the terminal and on the bus,” and that he
could be “required to travel on another schedule as designated
by Greyhound to allow social distancing on the bus.” Id.
Greyhound stated that Abadi should not hesitate to contact the
ADA Compliance Team with any further questions. Id.
Abadi does not appear to have responded to Greyhound's
email or to have otherwise contacted Greyhound after
this exchange. Notwithstanding that Abadi did not actually
comply with Greyhound's exemption procedures, or contact
the Greyhound ADA Compliance Team, he maintains that
those procedures were “complicated” and “almost impossible
to work out.” Id. ¶ 36. Abadi asserts that, because of
Greyhound's policies, he was “denied [his] right to travel.” Id.
¶ 41. He further alleges that he was “trying to raise money
for a business project and was not able to get to California to
meet prospective funders,” resulting in lost business funding
and business opportunities. Id. ¶¶ 42, 46. Abadi claims to have
lost “over $50 [m]illion [d]ollars in business.” Id. ¶ 43.
The federal mask mandate expired on May 11, 2023, the
same day that the HHS Secretary's declaration of a public
health emergency expired. See Abadi v. Am. Airlines, Inc.,
No. 23-cv-04033 (LJL), 2024 WL 1346437, at *6 (S.D.N.Y.
Mar. 29, 2024) (citing Expired Order: Wearing of Face
Masks While on Conveyances and at Transportation Hubs,
CDC.gov (May 12, 2023), https://www/cdc/gov/quarantine/
masks/mask-travel-guidance.html).
II. Procedural History
On August 26, 2023, Abadi filed a Complaint against
Defendant. Compl. Defendant moved to dismiss the
Complaint on July 10, 2024. Dkt. 17 (“Mot.”). Abadi filed
his opposition on August 23, 2024, Dkt. 21 (“Opp.”), and
Defendant filed its reply on September 16, 2024, Dkt. 27
(“Reply”). The motion is now fully briefed and before the
Court.
LEGAL STANDARD
A court properly dismisses a claim for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure (“Rule”)
12(b)(1) when it “lacks the statutory or constitutional power
to adjudicate it.” Cortlandt St. Recovery Corp. v. Hellas
Telecomms., S.à.r.l., 790 F.3d 411, 417 (2d Cir. 2015) (quoting
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
To survive a Rule 12(b)(1) motion to dismiss for lack of
standing, a plaintiff “must allege facts that affirmatively and
plausibly suggest that [he] has standing to sue.” Amidax
Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir.
2011). “A plaintiff asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence that
it exists.” Makarova, 201 F.3d at 113. “Under Article III of
the Constitution, federal courts are empowered to adjudicate
only actual, ongoing cases or controversies.” Deeper Life
Christian Fellowship, Inc. v. Sobol, 948 F.2d 79, 81 (2d Cir.
1991). “A case in federal court must be alive at all stages of
judicial proceedings, not only at the point at which a suit was
originally filed.” Id. “If events subsequent to the filing of a
lawsuit resolve the controversy, the case should be dismissed
as moot.” Id.
*4 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)). On a Rule
12(b)(6) motion, the court must “accept all factual allegations
as true and draw all reasonable inferences in the plaintiff's
favor.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,
110-11 (2d Cir. 2010) (alterations adopted) (quoting Shomo
v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)). The
court shall not “accept as true a legal conclusion couched as a
factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).
“The Court ordinarily construes pro se pleadings broadly
and liberally, interpreting them so as to raise the strongest
arguments they suggest.” Abadi, 2024 WL 1346437, at *17
(citing McLeod v. Jewish Guild for the Blind, 864 F.3d 154,
156 (2d Cir. 2017) (per curiam)); accord Abbas v. Dixon,
480 F.3d 636, 639 (2d Cir. 2007). This is “especially true
when dealing with pro se complaints alleging civil rights
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violations.” Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d
138, 146 (2d Cir. 2002), superseded in part on other grounds
by 42 U.S.C. § 12102(3)(A), as stated in Puccinelli v. S. Conn.
State Univ., No. 21-cv-00763 (SVN), 2023 WL 4838291 (D.
Conn. July 28, 2023). However, “pro se status does not relieve
a plaintiff of the pleading standards otherwise prescribed by
the Federal Rules of Civil Procedure.” Saidin v. N.Y.C. Dep't
of Educ., 498 F. Supp. 2d 683, 687 (S.D.N.Y. 2007); see also
Triestman, 470 F.3d at 477 (“[P]ro se status ‘does not exempt
a party from compliance with relevant rules of procedural
and substantive law.’ ” (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983))). Moreover, in this case, “Plaintiff is
entitled to somewhat lesser solicitude because of his extensive
experience with and schooling in the law as it applied to
motions to dismiss and mask mandates and other public health
measures taken to slow the spread of COVID-19.” Abadi,
2024 WL 1346437, at *17. 2
DISCUSSION
Defendant moves to dismiss Abadi's Complaint in its entirety.
See generally Br. The Court addresses each of Abadi's federal
claims in turn, before turning to Abadi's state and city law
claims under the NYCHRL, NYSHRL, and LAD.
I. ADA Claim
Count One of the Complaint asserts that Defendant
discriminated against Abadi due to his disability and did
not allow him equal access to its public accommodations in
violation of the ADA, and seeks injunctive relief. Compl.
¶¶ 48-73. Greyhound moves to dismiss Abadi's ADA claim
for a lack of standing under Rule 12(b)(1). Br. at 2-4. For
the reasons set forth below, the Court finds that Abadi lacks
standing to seek injunctive relief under the ADA.
Article III of the Constitution “confines the federal judicial
power to the resolution of ‘Cases’ and ‘Controversies.’ ”
TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)
(quoting U.S. Const. art. III, § 2, cl. 1). “For there to be a
case or controversy under Article III, the plaintiff must have
a personal stake in the case — in other words, standing.”
Id. (quotation marks and citation omitted). “[T]o establish
standing, a plaintiff must show (i) that he suffered an injury in
fact that is concrete, particularized, and actual or imminent;
(ii) that the injury was likely caused by the defendant; and
(iii) that the injury would likely be redressed by judicial
relief.” Id. The injury must be “actual or imminent, not
conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992) (citations and quotation marks omitted);
see also Am. Civ. Liberties Union v. Clapper, 785 F.3d 787,
800 (2d Cir. 2015) (“The Supreme Court has repeatedly
reiterated that threatened injury must be certainly impending
to constitute injury in fact, and that allegations of possible
future injury are not sufficient.” (alteration adopted) (citation
and quotation marks omitted)). At all stages of litigation, “
‘the party invoking federal jurisdiction bears the burden of
establishing the elements’ of Article III standing.” Carter
v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016)
(alteration adopted) (quoting Lujan, 504 U.S. at 561); see
Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 75 (2d Cir.
2022) (even “at the motion to dismiss stage, the plaintiff
still ‘bears the burden of alleging facts that affirmatively
and plausibly suggest that the plaintiff has standing to sue’
” (alteration adopted) (quoting Cortlandt St., 790 F.3d at
417)).
*5 Title III of the ADA allows only for injunctive relief.
See Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 86 (2d
Cir. 2004) (“A private individual may only obtain injunctive
relief for violations of a right granted under Title III; he cannot
recover damages.”). “A plaintiff pursuing injunctive relief
may not rely solely on past injury, but also must establish
that ‘she is likely to be harmed again in the future in a
similar way.’ ” Calcano, 36 F.4th at 74 (quoting Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016)). The
Second Circuit has found an injury in fact under the ADA
when: “(1) the plaintiff alleged past injury under the ADA;
(2) it was reasonable to infer that the discriminatory treatment
would continue; and (3) it was reasonable to infer, based
on the past frequency of plaintiff's visits and the proximity
of defendants’ [businesses] to plaintiff's home, that plaintiff
intended to return to the subject location.” Id. (alteration in
original) (quoting Kreisler v. Second Ave. Diner Corp., 731
F.3d 184, 187-88 (2d Cir. 2013)). These factors ensure that
the alleged prospective injury is “sufficiently ‘concrete and
particularized.’ ” Id. (quoting Lujan, 504 U.S. at 560). “[T]he
central inquiry” is whether “the plaintiff plausibly alleges ‘a
real and immediate threat of future injury.’ ” Id. at 75 (quoting
Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1233 (11th
Cir. 2021)).
Abadi fails to establish an injury in fact. For one, he
has not established a past injury under the ADA. Abadi's
ADA claim is predicated on a failure to accommodate.
Compl. ¶¶ 35, 55. The ADA, however, requires only
“reasonable accommodation of the plaintiff's disability,” not
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“every accommodation the disabled employee may request.”
Fink v. N.Y.C. Dep't of Personnel, 53 F.3d 565, 567 (2d
Cir. 1995). Greyhound did not deny Abadi any services
or refuse to provide an accommodation. To the contrary,
Greyhound provided Abadi with its procedures and criteria
for seeking an exemption from the federal mask mandate.
Compl. ¶ 31. Abadi, however, elected to entirely forego
Greyhound's accommodation procedures and to bring this
lawsuit instead. But Abadi cannot bring a lawsuit premised
on the “hypothetical” injury he would have suffered if he
had been denied an exemption when he did not pursue
Greyhound's exemption procedures at all. Lujan, 504 U.S.
at 560; see also Abadi v. City of New York, 22-1560, 2023
WL 3295949, at *2 (2d Cir. May 8, 2023) (summary order)
(dismissing challenge to City's vaccination employment
requirement where “Abadi was not prevented from applying
for the job because he was unvaccinated; he simply chose
not to apply”); see also Carlone v. Lamont, No. 21-871,
2021 WL 5049455, at *3 (2d Cir. Nov. 1, 2021) (summary
order) (plaintiff lacked standing to challenge a mask mandate
where “the complaint does not state that [plaintiff] has ever
actually been required to wear a mask or has been subject
to enforcement of the mask mandate”). Abadi asserts that
Greyhound's exemption approval process was “complex”
and “almost impossible to work out,” Compl. ¶ 36, but
he does not allege that he either tried to comply with
Greyhound's exemption process or that he sought, and was
denied, a modification thereof. Abadi therefore has not
pleaded “enough facts to make it plausible that [he] did indeed
suffer the sort of injury that would entitle [him] to relief.”
Guthrie v. Rainbow Fencing, Inc., 113 F.4th 300, 311 (2d Cir.
2024) (quoting Maddox v. Bank of N.Y. Mellon Tr. Co., N.A.,
19 F.4th 58, 65-66 (2d Cir. 2021)).
Nor has Abadi shown that discriminatory conduct is likely
to continue. Abadi pleads a single incident of alleged
discrimination in connection with a federal mask mandate
that is no longer in effect. Abadi himself concedes that the
mask mandate is no longer in force but maintains that “the
federal government is actively pursuing its reinstatement”
and that it is “very likely that it will be reinstated by
many States, municipalities, and even private businesses.”
Compl. ¶ 71. For this proposition, Abadi cites only to news
articles from 2023 discussing the reinstatement of mask
mandates generally, and a report regarding Long COVID
commissioned by the Department of Health and Human
Services (“HHS”) and independently produced by third-
party company Coforma, which recommends “policies and
protocols regarding masking and social distancing in public
spaces.” Id. ¶¶ 68-69, 72 n.1. Even on a generous reading
of the Complaint, these hardly amount to facts that plausibly
show that Greyhound is “very likely” to imminently reinstate
its mask mandate. Id. ¶ 71. Abadi's assertions that the
mandate will likely be reinstated are “purely speculative”
and therefore insufficient to “giv[e] rise to an inference”
that Abadi “will suffer future discrimination” by Greyhound.
Shotz v. Cates, 256 F.3d 1077, 1081 (2d Cir. 2001). In fact,
the Third Circuit rejected substantially similar allegations
brought by Abadi against Target Corporation on Article III
standing grounds. Abadi v. Target Corp., No. 23-1050, 2023
WL 4045373, at *2 (3d Cir. June 16, 2023) (per curiam).
There, as here, Abadi's allegations “pertained to a one-time
incident” in connection with Target's in-store mask mandate,
and Abadi “acknowledged that Target's in-store mask policy
has [since] been lifted.” Id. The Third Circuit held that Abadi's
contentions “that the mask requirement may be reinstated”
were “too speculative to establish Article III standing.” Id.
This Court agrees and finds that Abadi lacked standing at the
time that this action commenced. 3
*6 Moreover, while Abadi vaguely alleges that he “travels
a lot” and was planning trips to California and Texas,
Abadi does not plead that he plans to do so in the future
using Greyhound's buses. Abadi's pleadings therefore do
not establish an “inten[t] to return to the subject location.”
Kreisler, 73 F.3d at 188; Harty v. W. Point Realty, Inc.,
28 F.4th 435, 443 (2d Cir. 2022) (plaintiff lacked standing
to bring suit where plaintiff “d[id] not allege anywhere in
his complaint that he was using the website to arrange for
future travel”). As courts in this Circuit have acknowledged,
“the Second Circuit's recent Calcano decision ‘raised the
bar appreciably for adequately pleading standing to seek
injunctive relief in ADA cases.’ ” Loadholt v. Dungarees, Inc.,
No. 22-cv-04699 (VEC), 2023 WL 2024792, at *2 (S.D.N.Y.
Feb. 15, 2023) (quoting Hennesy ex rel. Hennesy v. Poetica
Coffee, Inc., No. 21-cv-05063 (KAM), 2022 WL 4095557,
at *4 (E.D.N.Y. Sept. 7, 2022)); see, e.g., Calcano, 36 F.
4th at 76 (“Plaintiffs’ vague assertions that they have been
customers at Defendants’ businesses ‘on prior occasions’ ”
do not “nudge their claims ‘across the line from conceivable
to plausible.’ ” (quoting Iqbal, 556 U.S. at 680)). Following
Calcano, courts have found deficient complaints that make
“vague” assertions of an intent to return to the premises
without setting forth more specific allegations as to why and
when the plaintiff intends to do so. See, e.g., Delacruz v.
Club Monaco U.S., LLC, No. 19-cv-10255 (PGG), 2024 WL
1827285, at *4 (S.D.N.Y. Apr. 26, 2024) (deeming conclusory
plaintiff's “vague assertion” of a future intent to return
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to store); Velazquez v. Nextphase, Inc., No. 22-cv-07967
(CM), 2023 WL 4054522, at *5 (S.D.N.Y. June 16, 2024)
(plaintiff's assertion that he “intend[ed] to visit the Website
in the near future” deemed insufficient to plead an actual or
imminent injury); Zinnamon v. Satya Jewelry II, LLC, No. 23-
cv-00781 (VEC), 2023 WL 3511123, at *2 (S.D.N.Y. Apr.
28, 2023) (complaint's “conclusory” allegations regarding
Plaintiff's “inten[t] to visit the Website in the near future”
insufficient to establish standing (citation omitted)). Although
cases applying Calcano often address the intent to return
within the context of ADA website claims, Calcano itself
was not an ADA website case, and its basic proposition
stands regardless of the nature of the underlying ADA claim
— that is, that plaintiffs must allege nonconclusory facts
of a “certainly impending” injury. Calcano, 36 F.4th at 74
(emphasis omitted). Abadi, who has not even offered “naked
assertions” of an intent to return to Greyhound's facilities,
clearly does not satisfy that standard. Id. at 77-78. At most,
Abadi alleges that he “had been planning” — in the past tense
— a “specific trip” to parts of the United States. Compl. ¶ 6.
The allegations in the Complaint therefore do not plausibly
establish that “the risk of harm is sufficiently imminent and
substantial.” Calcano, 36 F.4th at 75 (quoting TransUnion,
594 U.S. at 415).
For the aforementioned reasons, the Court finds that Abadi
has not adequately pleaded an injury in fact and therefore
grants Defendant's motion to dismiss Abadi's ADA claim for
a lack of standing under Rule 12(b)(1).
II. 42 USC § 1985 Claim
Abadi separately asserts a conspiracy claim against
Greyhound under 42 U.S.C. § 1985. Abadi alleges that
Greyhound, along with other “similar companies, trains, and
airlines, as an industry,” conspired “with each other” and
“with the federal agencies involved” to discriminate against
himself and other similarly positioned individuals. Compl.
¶¶ 77-81. Abadi does not otherwise name the companies
or federal agencies with whom Greyhound purportedly
conspired. Defendant likewise moves to dismiss this claim
for failure to state a cause of action under Rule 12(b)(6). Br.
at 4-6. For the reasons below, the Court finds that Abadi's
Section 1985 claim fails as a matter of law.
“To state a civil rights conspiracy under § 1985(3), a plaintiff
must allege”:
1) a conspiracy; 2) for the purpose of
depriving either directly or indirectly,
any person or class of persons of the
equal protection of the laws, or of
equal privileges and immunities under
the laws; and 3) an act in furtherance of
the conspiracy; 4) whereby a person is
either injured in his person or property
or deprived of any right or privilege of
a citizen of the United States.
Gray v. Town of Darien, 927 F.2d 69, 73 (2d Cir. 1991). “A
conspiracy is an agreement between two or more individuals
where one acts in further[ance] of the object[ ] of the
conspiracy and each member has knowledge of the nature and
scope of the agreement.” Abadi, 2024 WL 1346437, at *25
(quoting Morpurgo v. Inc. Vill. of Sag Harbor, 697 F. Supp. 2d
309, 339 (E.D.N.Y. 2010), aff'd, 417 App'x 96 (2d Cir. 2011)
(summary order)). Accordingly, to establish a conspiracy,
a plaintiff “must provide some factual basis supporting a
meeting of the minds, such that the defendants entered into
an agreement, express or tacit, to achieve the unlawful end.”
Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (citation
omitted). A plaintiff must therefore allege “specific facts that
could give rise to an inference of collusion or conspiracy.”
Roffman v. City of New York, No. 01-cv-08601 (AGS), 2002
WL 31760245, at *6 (S.D.N.Y. Dec. 10, 2002). “It is well
settled that claims of conspiracy ‘containing only conclusory,
vague, or general allegations of conspiracy to deprive a person
of constitutional rights cannot withstand a motion to dismiss.’
” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (quoting
Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993)); see also
Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir.
2002) (affirming dismissal where conspiracy allegations were
“strictly conclusory” and did not “provid[e] any details of
time and place” or “specify in detail the factual basis” for the
claim (citations and quotation marks omitted)); Tufano v. One
Point Lane Corp., 64 F. Supp. 2d 119, 133 (E.D.N.Y. 1999),
aff'd sub nom. Tufano v. One Toms Point Lane Corp., Bd. of
Directors, 229 F.3d 1136 (2d Cir. 2020) (unpublished table
decision) (references to a “conspiracy and fraud” perpetrated
through “meetings and communications” constituted “general
allegations” that, absent factual support, “fail[ed] to satisfy
the pleading requirements of a § 1985(3) claim”).
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*7 Moreover, the “conspiracy must also be motivated
by some racial or perhaps otherwise class-based, invidious
discriminatory animus behind the conspirators’ action.”
Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999) (citation
and quotation marks omitted). The Second Circuit has resisted
interpreting Section 1985(3) as “protecting only [African
Americans] and other analogously oppressed minorities,” but
has underscored that the class must possess “inherited or
immutable characteristics” for it to be “sufficient to satisfy
the class-based animus requirement.” Dolan v. Connolly,
794 F.3d 290, 296 (2d Cir. 2015) (citation omitted). Finally,
the Plaintiff must show that the conspiracy was “aimed at
interfering with rights that are protected against private, as
well as official, encroachment.” Bray v. Alexandria Women's
Health Clinic, 506 U.S. 263, 268 (1993) (quoting Carpenters
v. Scott, 463 U.S. 825, 833 (1983)); see also Spencer v.
Casavilla, 44 F.3d 74, 77 (2d Cir. 1994) (the right must be
“consciously targeted and not just incidentally affected”).
The Court need not reach the question of whether individuals
with disabilities constitute a qualifying class under Section
1985(3), because Abadi has not sufficiently alleged “a
conspiracy, or an agreement to violate a federal right, or
invidious discrimination.” Abadi, 2024 WL 1346437, at *25.
Abadi made substantially similar allegations of a conspiracy
to enact a mask mandate in Abadi v. American Airlines, Inc.
— a case challenging various airlines’ implementation of
the federal COVID-19 mask policy as discriminatory. See
id. Abadi asserted therein that “the airline defendants ...
discriminated against [him]” in collaboration with “federal
agencies and lawyers” to deprive Abadi of his civil rights.
Id. at *26. The court held that those assertions “lack[ed]
any legal foundation” and therefore were “merely conclusory
allegations ‘masquerading as factual conclusions.’ ” Id.
(quoting Kirch v. Liberty Media Corp., 449 F.3d 388, 398
(2d Cir. 2006)). So too here. Moreover, while in Abadi
v. American Airlines, Plaintiff pleaded that the forty-six
named defendant airlines conspired with each other, id. at
*1, *26, here — beyond a cursory reference to “similar
companies, trains, and airlines” and “federal agencies” —
Abadi does not even name Greyhound's purported co-
conspirators, Compl. ¶ 78. In his opposition papers, Abadi
cites to supposed “conspirators” named in other filed
cases, see Opp. at 17 (citing Abadi, 2024 WL 1346437;
Abadi v. Nat'l R.R. Passenger Corp., No. 1:22-cv-03684
(TNM), 2024 WL 1344403 (D.D.C. Mar. 29, 2024)).
Abadi fails, however, to allege any relationship between
Greyhound and the “companies, trains, and airlines” with
which Greyhound supposedly conspired. The Complaint
offers only “freewheeling and speculative allegations” of
an agreement among the travel industry at large and the
federal government to discriminate against disabled persons.
Abadi, 2024 WL 1346437, at *26 (citation omitted). These
assertions “fail to raise a reasonable inference of conspiracy.”
Id. (quoting Morpurgo, 697 F. Supp. 2d at 340); see also
Johnson v. City of New York, 669 F. Supp. 2d 444, 451
(S.D.N.Y. 2009) (dismissing Section 1985 claim where
the complaint contained “no specific factual allegations
respecting a meeting of the minds, specific communications
between the ... defendants, or even concerned activities or
coordinated efforts between them”); K.D. ex rel. Duncan v.
White Plains Sch. Dist., 921 F. Supp. 2d 197, 209 (S.D.N.Y.
2013) (“Plaintiffs’ conspiracy claims thus fail because the
Complaint is devoid of any specific facts relating to the
purported conspiracies.”); San Filippo v. U.S. Tr. Co. of N.Y.,
Inc., 737 F.2d 246, 256 (2d Cir. 1984) (plaintiff's “conclusory
allegations of conspiracy are insufficient to survive ... a 12(b)
(6) motion for dismissal”); Ziglar v. Abbasi, 582 U.S. 120,
154 (2017) (“To state a claim under § 1985(3), a plaintiff must
first show that the defendants conspired — that is, reached
an agreement — with one another.”). “A bare assertion that
a conspiracy existed, unsupported by any specific factual
allegations, is itself insufficient to state a plausible claim to
relief.” Johnson, 669 F. Supp. 2d at 451.
*8 Construed in the light most favorable to Abadi, Abadi
has at most alleged that Greyhound conspired with its own
officers and agents to implement a discriminatory mask
mandate. Compl. ¶¶ 30-31. However, any such claim is barred
by the intracorporate conspiracy doctrine, which holds that
“officers, agents, and employees of a single corporate entity,
when acting within the scope of their employment, are legally
incapable of conspiring together.” Longobardi v. City of New
York, No. 21-cv-02705 (GBD), 2022 WL 1808902, at *5
(S.D.N.Y. June 2, 2022). Abadi does not dispute that the
Greyhound employees were “acting within the scope of their
employment.” Id. Rather, Abadi cites to Novotny v. Great
American Federal Savings & Loan Ass'n for the proposition
that a conspiracy can be found between officers and directors
of a corporation. 584 F.2d 1235 (3d Cir. 1978), vacated on
other grounds, 442 U.S. 366 (1979); Opp. at 12-13. The Third
Circuit's decision in Novotny, however, is not binding on this
Court. The courts of appeals are divided regarding the validity
of the intracorporate conspiracy doctrine. See Ziglar, 582 U.S.
at 154 (discussing circuit split). However, the Second Circuit
— which binds this Court — has held that corporate officers
and directors acting in the course of their corporate duties
cannot form a “conspiracy” within the meaning of Section
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1985(3). Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66,
71-72 (2d Cir. 1976); see also Murphy v. City of Stamford, 634
F. App'x 804, 805 (2d Cir. 2015) (summary order) (applying
intracorporate conspiracy doctrine).
Even if Abadi has sufficiently pleaded the existence of a
conspiracy, his claim still fails as a matter of law because
he has not proffered any facts establishing that any such
conspiracy was “motivated by ... invidious discriminatory
motive.” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d
778, 791 (2d Cir. 2007) (quoting Thomas, 165 F.3d at
146). “Discriminatory purpose ... implies more than intent as
volition or intent as awareness of consequences. It implies
that the decisionmaker ... selected or reaffirmed a particular
course of action at least in part ‘because of,’ not merely
‘in spite of,’ its adverse effects upon an identifiable group.”
Bray, 506 U.S. at 271-72 (second omission in original)
(quoting Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256,
279 (1979)). Plaintiff only makes the conclusory assertion
that Greyhound and others in the travel industry conspired
together to “discriminate against [Plaintiff] due to his medical
disability.” Compl. ¶¶ 77-78. However, as in Abadi v.
American Airlines, the facts pleaded by Abadi suggest that
Greyhound was “not motivated by animus to those who for
medical reasons could not wear a mask,” but rather, that it
“adopted [its] policies for medical reasons, notwithstanding
that [its] policies may have some incidental effect on those
who, for medical reasons, might have challenges in wearing
a mask.” 2024 WL 1346437, at *27 (emphasis added)
(finding no discriminatory motive and therefore dismissing
Rehabilitation Act claims against airlines). By Abadi's own
admission, the CDC implemented the mask mandate in the
midst of a global pandemic that caused “significant death and
hospitalizations.” Compl. ¶ 13 The impetus for the federal
mask mandate and for Greyhound's exemption policy is
therefore most fairly construed as public health concerns.
Finally, Abadi fails to allege the deprivation of a
constitutional right. “Because ‘Section 1985(3) provides no
substantive rights itself,’ a deprivation of a constitutional right
is a required object of a conspiracy under 1985(3).’ ” Ochoa
v. Bratton, No. 16-cv-02852 (JGK), 2017 WL 5900552, at
*9 (S.D.N.Y. Nov. 28, 2017) (quoting Novotny, 442 U.S. at
372). Abadi asserts that he was deprived of his constitutional
right to travel. Compl. ¶ 41; Opp. at 14. The Supreme Court
has held that the right to travel is, in at least some contexts, a
“right constitutionally protected against private interference.”
Bray, 506 U.S. at 274. However, “it does not suffice for
application of § 1985(3)” that the right to interstate travel
be only “incidentally affected.” Id. at 275. “The right must
be aimed at,” that is, “its impairment must be a conscious
objective of the enterprise.” Id. (citation and quotation marks
omitted). Therefore, the defendant must do more “than merely
be aware of a deprivation of right that he causes” — he must
“act at least in part for the very purpose of producing” the
deprivation of such right. Id. at 276.
*9 Abadi cannot satisfy this demanding standard. As
pleaded, Greyhound's mask mandate was imposed in response
to — and with the objective of mitigating the effects
of — the global pandemic. Compl. ¶¶ 13-14. Any effect
on Abadi's or other individuals with disabilities’ right to
interstate travel was therefore not the “conscious objective” of
Greyhound's policies but merely “incidental” to Greyhound's
response to a public health crisis. See, e.g., Abadi, 2024 WL
1346437, at *27 (finding that airlines’ mask mandate “only
incidentally” affected the right to travel). Greyhound's mask
policy was not adopted “because [it] would impede travel but
notwithstanding that [it] would impact travel.” Id.
III. 42 U.S.C. § 1986 Claim
Abadi also alleges under 42 U.S.C. § 1986 that Greyhound
was “aware of the conspiracy to interfere with the civil rights
of the disabled by most of their industry” and “did nothing to
stop it.” Compl. ¶ 87. This claim, too, is deficient as a matter
of law.
Section 1986 “provides a cause of action against anyone
who ‘having knowledge that any of the wrongs conspired
to be done and mentioned in Section 1985 are about to be
committed and having power to prevent or aid, neglects to
do so.’ ” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7
F.3d 1085, 1088 (2d Cir. 1993) (quoting Katz v. Morgenthau,
709 F. Supp. 1219, 1236 (S.D.N.Y.), aff'd in part and rev'd
in part on other grounds, 892 F.2d 20 (2d Cir. 1989)). A
Section 1986 claim therefore “must be predicated upon a valid
§ 1985 claim.” Id. Because Abadi's complaint makes only
conclusory allegations of a conspiracy, Abadi's Section 1986
claim necessarily fails as a matter of law.
Separately, Abadi's Section 1986 claim is time-barred.
Section 1986 claims have a one-year statute of limitations.
42 U.S.C. § 1986 (“[N]o action under the provisions of this
section shall be sustained which is not commenced within
one year after the cause of action has accrued.”); accord
Longobardi, 2022 WL 1808902, at *6. Abadi commenced
this action on August 26, 2023. See generally Compl. Abadi
alleges in his Complaint that the alleged discriminatory
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conduct took place on August 21, 2021 — over two
years prior to the commencement of this action. Id. ¶ 30.
Abadi suggests that the statute of limitations should be
tolled because “the potential damages were not immediately
apparent,” and because Abadi “originally filed a complaint in
the Northern District of Texas.” Opp. at 17-18. Abadi cites
no authority, however, to support the tolling of the statute of
limitations here. In any event, Abadi's claims rest on the fact
that Greyhound required him in its August 21, 2021 email
to comply with an exemption policy Abadi deems unlawful.
This is therefore not a situation where the potential damages
“were not immediately apparent,” because, for instance, of
fraudulent concealment by the opposing party. Nor is there
any basis for tolling the statute of limitations for the period
of time this action was pending in the Northern District of
Texas. Plaintiff filed the Northern District of Texas action on
December 6, 2022 — more than a year after the action had
accrued — and therefore still outside the statute of limitations.
See Original Complaint & Jury Demand, Abadi v. Greyhound
Lines Inc., No. 22-cv-02722-G (N.D. Tex. Dec. 6, 2022).
IV. Rehabilitation Act Claim
Abadi further alleges that Greyhound, as a recipient of federal
funds, discriminated against him based on his disability and
denied him equal access to its public accommodations in
violation of the Rehabilitation Act, 29 U.S.C. § 794(a).
Compl. ¶¶ 93-101. Defendant argues that this claim also fails
to state a claim. Br. at 6-10. The Court agrees.
*10 “The Rehabilitation Act of 1973 prohibits
discrimination against handicapped or disabled persons in any
program or activity receiving Federal financial assistance.”
Abadi, 2024 WL 1346437, at *32. “To establish a prima facie
case under the Rehabilitation Act, a plaintiff must allege:
[1] that he or she is a person with disabilities under the
Rehabilitation Act, [2] who has been denied benefits of or
excluded from participating in a federally funded program or
special service, [3] solely because of his or her disability.”
Bryant v. N.Y. State Educ. Dep't, 692 F.3d 202, 216 (2d
Cir. 2012). The phrase “program or activity” is defined by
the Rehabilitation Act to mean, among other things, all of
the operations of an entire corporation “(i) if assistance
is extended to such corporation ... as a whole; or (ii) [if
the corporation] is principally engaged in the business of
providing education, health care, housing, social services, or
parks and recreation.” 29 U.S.C. § 794(b)(3)(A)(i)-(ii). “For
purposes of clause (i), the phrase ‘as a whole’ means that
federal assistance is extended to the organization otherwise
than for some specific purpose — put differently, that the
recipient of federal funds received those funds as general
assistance.” Collins v. Giving Back Fund, No. 18-cv-08812
(CM), 2019 WL 3564578, at *11 (S.D.N.Y. Aug. 6, 2019);
Abadi, 2024 WL 1346437, at *33 (“The legislative history of
Section 504 reveals that money distributed to an entity “ ‘as
a whole” refers to situations where the corporation receives
general assistance that is not designated for a particular
purpose.’ ” (quoting S. Rep. No. 100-64 (1987))).
Abadi's Rehabilitation Act claim is deficient in at least three
respects. As an initial matter, Abadi has not even sufficiently
pleaded that Greyhound is a recipient of federal funds.
While the Complaint asserts that Greyhound has received
“significant federal funds,” it cites to a broken URL for that
proposition. Compl. ¶ 95. Abadi's opposition papers append
the now-deleted website page, which references financial
assistance received by Greyhound through the Federal Transit
Administration (FTA)’s Section 5311(f) program. Opp. Ex.
1. 4 The contract that Abadi appends, however, was last
revised in September 2017. See generally id. Abadi therefore
has not established that Greyhound was a recipient of federal
funds at the time his cause of action accrued.
Moreover, even assuming Greyhound received federal
assistance, Abadi has not pleaded that Greyhound bus
services constitute a federally funded “program or activity”
within the meaning of the Rehabilitation Act. Specifically,
Abadi has not pleaded facts supporting a plausible claim
that federal assistance was extended to Greyhound “as a
whole.” 29 U.S.C. § 794(b)(3)(A)(i); see, e.g., Collins, 2019
WL 3564578, at *11 (“[T]he phrase ‘as a whole’ means
that ... the recipient of federal funds received those funds
as general assistance.”). Section 5311 funding is specifically
directed toward supporting public transportation “in rural
areas with populations of less than 50,000” and therefore does
not qualify as funding to Greyhound “as a whole.” Formula
Grants for Rural Areas — 5311, Fed. Transit Admin., https://
www.transit.dot.gov/rural-formula-grants-5311 (last visited
Dec. 17, 2024). “Federal aid which is limited in purpose ... is
not considered aid for the corporation as a whole.” Collins,
2019 WL 3564578 at *12 (omission in original) (grant
directed toward specific regional program did not constitute
funding to corporation “as a whole”). Nor does Abadi allege
that Greyhound is “principally engaged in the business of
providing education, health care, housing, social services, or
parks and recreation.” 29 U.S.C. § 794(b)(3)(A).
*11 To the extent that Abadi argues in his briefing that
Greyhound also received funding through the Coronavirus
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Aid, Relief, and Economic Security (CARES) Act, Pub. L.
No. 116-136, 134 Stat. 281 (2020), see Opp. at 20, 24, those
allegations cannot save his Rehabilitation Act claim. Funding
through the CARES Act was earmarked for a specific purpose
and therefore does not extend to recipients “as a whole”: “The
Cares Act was aimed at helping businesses make payroll and
pay operating expenses in order to keep people employed
through the economic downturn.” Abadi, 2024 WL 1346437,
at *33 (quotation marks and citation omitted). For that reason,
courts have held that CARES Act funding does not bring a
corporation within the coverage of the Rehabilitation Act. Id.
Finally, Abadi's Rehabilitation Act claim separately fails
because Abadi has not pleaded facts supporting a plausible
inference that he was excluded from Greyhound's facilities or
services “on the basis of” his disability. As noted above, Abadi
alleges Greyhound discriminated against him by failing to
accommodate his medical disability. Compl. ¶¶ 35, 55; see
McElwee v. County of Orange, 700 F.3d 635, 640 (2d Cir.
2012) (“[A] defendant discriminates when it fails to make
a reasonable accommodation that would permit a qualified
disabled individual ‘to have access to and take a meaningful
part in public services.’ ” (quoting Powell, 364 F.3d at
85)). The Rehabilitation Act “does not,” however, “require
the employer to provide every accommodation the disabled
employee may request, so long as the accommodation
provided is reasonable.” Fink v. N.Y.C. Dep't of Personnel, 53
F.3d 565, 567 (2d Cir. 1995). “A ‘reasonable accommodation’
is one that gives the otherwise qualified plaintiff with
disabilities ‘meaningful access’ to the program or services
sought.” McElwee, 700 F.3d at 641 (quoting Henrietta D. v.
Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003)).
Here, Greyhound responded promptly to Abadi's August 21,
2021 email seeking an exemption from the federal mask
mandate with Greyhound's procedures for doing so. Compl.
¶¶ 30-31. Specifically, Greyhound advised Abadi that to claim
an exemption, he would need to provide the Greyhound ADA
Compliance Department, at least twenty-four hours prior
to travel, with: (1) current medical documentation from a
qualified healthcare provider; and (2) evidence of a negative
COVID-19 test five days prior to planned travel. Id. ¶ 31.
Greyhound also informed Abadi that if he was issued a
certificate to travel without wearing a mask, he would need
to socially distance in the terminal and on the bus and sit
in the front seats designated for customers with disabilities,
and that he could be required to travel on another schedule
as designated by Greyhound to allow social distancing on
the bus. Id. At no point was Abadi denied services or an
accommodation. Abadi takes issue with Greyhound's policies
and procedures for seeking an exemption, but Abadi is not
entitled to “every accommodation” he “may request.” Fink,
53 F.3d at 567.
For these reasons, the Court also dismisses Abadi's
Rehabilitation Act claim.
V. State and City Law Claims
In addition to his federal claims, Abadi brings various state
and city law claims, including claims under the New York
State Human Rights Law (“NYSHRL”), the New York City
Human Rights Law (“NYCHRL”), and New Jersey's Law
Against Discrimination (“LAD”). These claims, too, fail as a
matter of law.
A. NYSHRL and NYCHRL Claims
Abadi alleges that Defendant violated the NYSHRL and
NYCHRL because it denied Abadi access to its facilities and
buses, failed to engage in a cooperative dialogue with Abadi,
and circulated a discriminatory exemption policy over email.
The Court addresses each claim in turn.
1. Denial of Access
*12 Abadi asserts that Greyhound denied him access to its
facilities and buses under both the NYCHRL and NYSHRL.
Compl. ¶¶ 102-107, 117-121.
“Claims under the NYSHRL are analyzed using the same
standards that apply to the ADA.” Lowell v. Lyft, Inc., 352
F. Supp. 3d 248, 262 (S.D.N.Y. 2018). Abadi therefore must
establish that (1) he is disabled; (2) that Defendant owns,
leases, or operates a place of public accommodation; and (3)
that Defendant discriminated against him by denying him a
full and equal opportunity to enjoy the services Defendant
provides. See Rosa v. 600 Broadway Partners, LLC, 175
F. Supp. 3d 191, 198 (S.D.N.Y. 2016). NYCHRL claims,
however, must be analyzed “separately and independently
from any federal and state law claims,” “construing the
NYCHRL's provisions ‘broadly in favor of discrimination
plaintiffs, to the extent that such a construction is reasonably
possible.’ ” Mihalik v. Credit Agricole Cheuvreux N. Am.,
Inc., 715 F.3d 102, 109 (2d Cir. 2013) (quoting Albunio v.
City of New York, 947 N.E.2d 135, 137 (N.Y. 2011)). Under
the NYCHRL, it is an unlawful discriminatory practice for
an owner of a place of public accommodation to “refuse,
withhold from, or deny” an individual with a disability “the
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full and equal enjoyment” of its services or facilities. N.Y.C.
Admin. Code § 8-107(4)(a)(1)(a). “[E]ven if the challenged
conduct is not actionable under federal and state law, federal
courts must consider separately whether it is actionable under
the broader New York City standards.” Mihalik, 715 F.3d at
109.
Abadi proceeds on the theory that Greyhound failed to
make reasonable accommodations to provide him with
access to its facilities or buses. Both the NYSHRL and
NYCHRL provide that “it is a discriminatory practice to
‘refuse’ or ‘not to provide’ a reasonable accommodation.”
Abadi v. NYU Langone Health Sys., 705 F. Supp. 3d
172, 184 (S.D.N.Y. 2023) (alteration adopted). Under the
NYSHRL, it is a discriminatory practice for an owner of
a place of public accommodation to “refus[e] to make
reasonable modifications in policies, practices, or procedures,
when such modifications are necessary to afford facilities,
privileges advantages or accommodations to individuals with
disabilities ....” N.Y. Exec. Law. § 296(2)(c)(i). The NYCHRL
in turn provides that it is an unlawful discriminatory
practice “not to provide a reasonable accommodation to
enable a person with a disability to ... enjoy the right
or rights in question,” N.Y.C. Admin. Code § 8-107(15)
(a), with a “reasonable accommodation” defined as “such
accommodation that can be made that does not cause undue
hardship in the conduct of the covered entity's business,” Van
Vorst v. Lutheran Healthcare, No. 21-004, 2021 WL 6101474,
at *1 (2d Cir. 2021) (summary order) (quoting N.Y.C. Admin.
Code § 8-102).
Abadi has not pleaded any facts that demonstrate a denial
of access to Greyhound's facilities or buses because of his
disability under the NYSHRL. Abadi inquired whether he
could travel on Greyhound's buses without a mask or whether
Greyhound would provide an accommodation that would
allow him to use the buses. Compl. ¶ 30. In response,
Greyhound provided Abadi with the process for seeking a
medical exemption. Id. ¶ 31. Abadi, having elected to entirely
forego Greyhound's exemption procedures, cannot now claim
a denial of access.
*13 For the same reasons, even construing the NYCHRL's
provisions “broadly” in favor of Abadi, there is no
“reasonably possible” construction of Abadi's allegations that
would sustain his NYCHRL claim. Mihalik, 715 F.3d at 109.
Abadi's NYCHRL and NYSHRL claims for failure to provide
access are therefore dismissed.
2. Failure to Engage in a Cooperative Dialogue
Abadi separately asserts under the NYCHRL that Defendant
failed to engage in a cooperative dialogue within a reasonable
timeframe. Compl. ¶¶ 127-131.
Under the NYCHRL, a public accommodation must “engage
in a cooperative dialogue within a reasonable time with a
person who has requested an accommodation or who the
covered entity has notice may require an accommodation ...
related to disability ....” N.Y.C. Admin. Code § 8-107(28)(a).
“The statute defines the requisite ‘cooperative dialogue’ as
the ‘process by which a covered entity and a person entitled
to an accommodation ... engage in good faith in a written or
oral dialogue concerning the person's accommodation needs;
potential accommodations that may address the person's
accommodation needs, including alternatives to a requested
accommodation; and the difficulties that such potential
accommodations may pose for the covered entity.” Van Vorst,
2021 WL 6101474, at *2 n.6 (quoting N.Y.C. Admin. Code
§ 8-102). “This statutory provision suggests that [an] entity
must take into account a patient's preferred accommodation,
but that the accommodation that is ‘reasonable’ and required
by the statute is appropriately determined on an individual
basis.” Id.
Abadi likewise has not pleaded any facts that plausibly
give rise to an inference that Greyhound failed to engage
in a cooperative dialogue. In fact, the pleaded allegations
suggest the exact opposite — Greyhound responded to
Abadi's inquiry on the same day and indicated that any further
questions could be directed either to the Greyhound ADA
Compliance Team's email address or support line. Compl.
¶ 31. Abadi, not Greyhound, declined to engage in further
dialogue. Abadi has therefore failed to state a claim under
N.Y.C. Admin. Code § 8-107(28).
3. Email Notification of Exemption Procedures
Abadi further alleges that Defendant's email response to
his inquiry regarding an exemption from Greyhound's mask
policy violated N.Y.C. Admin. Code § 8-107(4). N.Y.C.
Admin. Code § 8-107(4)(2)(a) provides that it shall be
an unlawful discriminatory practice for any person who
is the provider of a public accommodation to “make any
declaration, publish, circulate, issue, display, post, or mail any
written or printed communication, notice, or advertisement,
to the effect that ... [f]ull and equal enjoyment” of its facilities
shall be “refused, withheld from, or denied to any person” on
account of his or her disability. Abadi's claim thus necessarily
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depends upon the Court finding that Greyhound's email had
the “effect” of “refus[ing], with[holding] or den[ying]” Abadi
access to Greyhound's facilities or buses on the basis of
his disability. For the reasons set forth above, the Court
finds that there was no denial of services or refusal of an
accommodation. Therefore, Abadi's N.Y.C. Admin. Code §
8-107(4) claim also fails as a matter of law.
B. New Jersey LAD Claims
Finally, the Court turns to Abadi's claims under the New
Jersey LAD. Abadi asserts that Defendant's purported denial
of access to its facilities and buses, as well as Defendant's
circulation by email of its exemption policies and procedures,
likewise violated New Jersey's LAD. Compl. ¶¶ 108-116.
*14 Abadi's LAD claims are time-barred. “The statute of
limitations for all claims asserted under the LAD is two
years.” Bolinger v. Bell Atl., 749 A.2d 857, 860 (N.J. Super.
Ct. App. Div. 2000); see also Montells v. Haynes, 627
A.2d 654, 655 (N.J. 1993) (holding that two-year statute
of limitations should apply to all LAD claims). Abadi's
Complaint details a single incident of alleged discrimination
based on his email correspondence with Greyhound, with
all relevant events transpiring on August 21, 2021. This
Complaint was filed on August 26, 2023 — outside of the
two-year statute of limitations to file LAD claims. For the
same reasons that the Court declines to toll the statute of
limitations for Plaintiff's Section 1986 claim, the Court finds
no basis to toll the statute of limitations for Abadi's LAD
claims.
CONCLUSION
For the reasons set forth above, Defendant's motion to dismiss
is GRANTED. The Clerk of Court is respectfully directed to
close the gavel at Dkt. 17 and to CLOSE the case.
All Citations
Slip Copy, 2024 WL 5155601
Footnotes
1 Abadi's Complaint references the CDC's Order. The Court also takes judicial notice of the CDC's Order,
finding that the information contained therein is “not subject to reasonable dispute.” Fed. R. Evid. 201(b).
The Court may judicially notice facts that are either “(1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Dixon v. von Blanckensee, 994 F.3d 95, 102 (2d Cir. 2021) (quoting Int'l
Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1989)). Pursuant to
Federal Rule of Evidence 201, the Court may consider information from official government websites. See,
e.g., Joyner v. Alston & Bird LLP, No. 21-cv-08549 (AT), 2022 WL 913061, at *2 (S.D.N.Y. Mar. 29, 2022)
(“As the Second Circuit has explained, ‘[c]ourts may take judicial notice of publicly available documents such
as regulatory filings.’ ” (quoting Lewis v. M&T Bank, No. 21-933, 2022 WL 775758, at *1 (2d Cir. Mar. 15,
2022) (summary order))); Dark Storm Indus. LLC v. Cuomo, 471 F. Supp. 3d 482, 489 (N.D.N.Y. 2020) (“The
Court may take judicial notice of documents” such as those “retrieved from official government websites or
other government records from such websites.” (alteration adopted) (citation omitted)); Gee v. Doe, No. 20-
cv-07503 (ALC), 2022 WL 125342, at *2 n.2 (S.D.N.Y. Jan. 13, 2022) (taking judicial notice of New York City
Department of Correction's policies on government website). Further, when ruling on a 12(b)(6) motion, the
Court may “consider ‘matters of which a court may take judicial notice.’ ” Dixon, 994 F.3d at 101-02 (quoting
Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007)).
2 As the court noted in Abadi v. American Airlines, Abadi has brought various actions challenging mask
mandates and other COVID-19 restrictions under federal and state disability law. See 2024 WL 1346437, at
*17 n.21 (collecting cases). Abadi's claims have, however, almost uniformly been rejected. See id.
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3 Abadi conflates mootness and standing doctrine. Opp. at 8-11. Abadi asserts that the issue is “not moot”
because the “federal government is actively pursuing” the reinstatement of the mask mandate and it is “very
likely that it will be reinstated by many States, municipalities, and even private businesses ....” Compl. ¶ 70.
Even if the Court were to accept this purely speculative assertion, it would not cure Abadi's standing defect.
While it is the defendant's burden to show that his or her voluntary compliance with a law moots a case,
“it is the plaintiff's burden to establish standing by demonstrating that ... the defendant's allegedly wrongful
behavior will likely occur or continue and that the ‘threatened injury [is] certainly impending.’ ” Friends of the
Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 170 (2000) (alteration in original) (emphasis
added) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). Likewise, although there is an exception
to mootness for acts that are “capable of repetition, yet evading review,” “[s]tanding admits of no similar
exception”: “[I]f a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable
of repetition yet evading review will not entitle the complainant to a federal judicial forum.” Id. at 191.
In any event, the Court also finds that Abadi's ADA claim is moot. “[I]n order to escape a mootness dismissal,
a plaintiff must still demonstrate a reasonable expectation of repetition that is ‘more than a mere physical or
theoretical possibility.’ ” New Yorkers for Religious Liberty, Inc. v. City of New York, 121 F.4th 448, 457 (2d
Cir. 2024) (quoting Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 F.3d 77, 86 (2d Cir. 2005)).
Abadi has not stated more than a “possibility” that Greyhound will reinstate its mask mandate, rendering
any request for injunctive relief under the ADA moot. See, e.g., id. (request to rescind the city's COVID-19
vaccine mandate was moot given that “there [was] no evidence to suggest that [a]ppellants ha[d] a reasonable
expectation that [was] more than theoretical of its reinstatement”); Conn. Citizens Def. League, Inc. v. Lamont,
6 F.4th 439, 446 (2d Cir. 2021) (finding the risk of future COVID-19 suspensions “speculative” given “the
mitigation measures that have become available to combat the spread of COVID-19, and the providential
infrequency of pandemics”); Dark Storm Indus. LLC v. Hochul, No. 22-02725, 2021 WL 4538640, at *1 (2d
Cir. Oct. 5, 2021) (summary order) (challenges to COVID-19 related executive orders deemed moot because
restrictions were lifted and the possibility of recurrence was “speculative” (citation omitted)).
4 On a motion to dismiss, “consideration is limited to the factual allegations in [the] complaint, which are
accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference,
to matters of which judicial notice may be taken, or to documents either in plaintiffs’ possession or of which
plaintiffs have knowledge and relied on in bringing suit.” Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150 (2d
Cir. 1993). Courts have discretion, however, to show pro se plaintiffs more leniency. While “material outside
of a complaint generally is not to be taken into consideration on a motion to dismiss, the policy reasons
favoring liberal construction of pro se complaints permit a court to consider allegations of a pro se plaintiff in
opposition papers on a motion where, as here, those allegations are consistent with the complaint.” Rodriguez
v. McGinnis, 1 F. Supp. 2d 244, 246-47 (S.D.N.Y. 1998). The Court therefore considers Abadi's allegations in
his opposition so long as those allegations are not inconsistent with the allegations pleaded in his Complaint.
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KeyCite Blue-Striped Flag
Appeal Filed by Adams v. City of Syracuse, 2nd Cir., October 17, 2025
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.
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2. May 6, 2016
a. 941 James Street
*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
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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
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
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if she witnessed who did it ... and maybe she'll give us a
statement.” Id. at 12:39.
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
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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
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 --
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Plaintiff: No.
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.
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Det. Brimmer: -- we're trying to get to the bottom of this.
Plaintiff: I'm telling you. Charles was fighting this guy.
Okay? Next thing I know --
Det. Beauchine: We're past that. We're past that. Alright?
We're past that. We know.
Plaintiff: And --
Det. Beauchine: We're past that. All right? Listen, relax.
Det. Brimmer: Just help us understand.
Det. Beauchine: Help us understand what happened. All
right? Between you and Charles.
Det. Brimmer: I mean, you got a wound on your face. That
could be a defensive wound, you know. It could --
Plaintiff: No. I ran into a tree being drunk.
Det. Beauchine: Okay. So is it safe -- how often do you
drink?
Plaintiff: Hmm? Every day.
Det. Beauchine: Okay. Could this be --
Plaintiff: All day. (laughs)
Det. Beauchine: -- could this -- listen, could this be a
mistake between you and Charles --
Plaintiff: No.
Det. Beauchine: -- because you were intoxicated and --
Plaintiff: No, no, no no.
Det. Beauchine: -- he was intoxicated?
Plaintiff: No, no, no, no, no, no, no. No, no, no, no. Really,
me and Charles ain't got no problem at all.
Det. Beauchine: Well, you did tonight.
Plaintiff: No. Hmm-mm.
Det. Beauchine: You did.
Plaintiff: No. No. No. Huh-uh.
Det. Beauchine: You might not want to think that you might
have had a problem, but --
Plaintiff: No, man.
Det. Beauchine: -- you get -- you had a problem with him
tonight.
Plaintiff: No.
Det. Beauchine: Or he had a problem with you, and you
were defending yourself, tell us.
Plaintiff: No, no, no, no.
Det. Brimmer: Did he start talking about Vanessa and upset
you?
Plaintiff: No.
Det. Brimmer: No?
Det. Beauchine: You had a problem with him tonight.
Plaintiff: Me and Vanessa had walked up. They happen to
over sitting -- sitting down, drinking. And still we was
drinking. Okay, next thing I know, they fighting. Really.
Really, man. Period.
Det. Beauchine: Was this an accident or did you mean to
hurt him?
Plaintiff: Man -- I didn't hurt him.
Det. Beauchine: You meant to hurt him?
Plaintiff: I never hurt him at all.
Det. Beauchine: It was an accident?
Plaintiff: Why do you -- why are you trying to put words
in my mouth? Okay? Huh?
Det. Brimmer: We're not trying to. We just want to get to
the bottom of this.
Plaintiff: Man, where -- well, where the bottom -- we're at
the bottom of [sic]. I was telling you.
Det. Brimmer: We're just going in circles.
Plaintiff: I didn't do nothing. I was a witness. That don't --
this they got --
Det. Brimmer We're just going in circles here....
Id. at 51:2-59:19.
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During the interrogation, Plaintiff's cellular phone rang. The
Detectives instructed Plaintiff not to answer the phone, to
turn it off, and to place it on the table. Id. at 27:6-20. At
approximately 11:14 p.m., just prior to the first break taken
during the interrogation, Detective Brimmer said that he
was going to take Plaintiff's phone outside the room. Id.
at 60:24-25; see also Dkt. No. 77-21b at 13:50. Plaintiff
responded, “[m]an, give me my phone,” to which Detective
Brimmer replied “[n]o, it's going to sit out here.” Dkt.
No. 77-22 at 61:1-3. During this break, Plaintiff is visible
talking to himself and unsuccessfully trying to open the
interrogation room's door, which appears to have been
deadbolted from the outside. Dkt. No. 77-21b at 14:00-17:00.
Plaintiff subsequently informed the Detectives that he was not
currently working because he had a “dual diagnosis” and that
his psychiatrist, counselor, and primary care doctor were all
at the same local healthcare provider. Id. at 102:16-103:16;
see also United States v. Moran, 778 F.3d 942, 951 (11th Cir.
2015) (“[D]ual diagnosis patients are those suffering from
both substance abuse and acute mental disorders.”).
*9 Plaintiff contends that he denied assaulting Mr. Jones
nearly 200 times before the Detectives coerced him into
providing a false confession around midnight. Dkt. No. 85-2
at ¶¶ 570-71. During the subsequent break, Plaintiff can be
heard saying “I'm going to jail for something I didn't do,” 9
Dkt. No. 77-21c at 8:49, and further talking to himself, see,
e.g., id. at 9:10, 11:23.
Defendants contend that Plaintiff's eventual confession was
not coerced and not false. Dkt. No. 77-56 at 9, 25.
Presumably to support this position, Defendants requested
that Dr. Weisman opine on Plaintiff's capacity during the May
2019 interrogation. Dkt. No. 77-52 at 11, 12. As relevant
here, Defendants requested that Dr. Weisman determine
whether Plaintiff had the “proper requisite intellectual
capacity and base intelligence level” and the “proper requisite
psychological state and mental health capacity” to have:
....
(c) understood the significance and context of the questions
being asked regarding the assault of Charles Jones; ...
....
(f) understood [the] significance and context of his answers
to those questions with respect to the assault of Charles
Jones; ....
(g) observed the events for which he was being questioned,
illustrated the ability to recall those same observations,
and provided answers based upon those observations
and recollections (even if, under certain circumstances,
Plaintiff was deceptive in his response); ....
(h) [had] the ability (or exhibited the ability) to
communicate his answers truthfully, effectively, clearly
and coherently; ..... and
(i) provided the answers of his own accord.
Id. at 11-12, 12-13. In response to every one of these items,
Dr. Weisman concluded:
Initially, yes, but towards the latter
part of the ~1.5-hour interview, Mr.
Adams being under the combination of
duress, fatigue, limitations of his legal
knowledge, and some level of alcohol
intoxication, became emotionally and
cognitively distressed, resigned, and
compelled to offer the narrative of the
crime being demanded of him.
Id. at 11-12, 12-13.
4. Police Reports
a. Detective Brimmer
According to the arrest report prepared by Detective Brimmer,
he and Detective Beauchine arrested Plaintiff at 12:00 a.m.
on May 7, 2019. Dkt. No. 77-23. The arrest report listed
Plaintiff as 55 years old, 5’7” tall, 160 pounds, and described
his apparent condition as “Appeared Normal.” Id. The arrest
report included criminal charges against Plaintiff. Id.
Detective Brimmer also prepared a police report regarding
events on May 6 and 7, 2019, including his telephone
conversation with Ms. Bailey. Dkt. No. 77-19. The parties
dispute what was said during this conversation on May 7,
2019.
According to Detective Brimmer's report, Ms. Bailey
corroborated certain key details of Plaintiff's confession
during this conversation, including that the day before “she
observed 2 unknown black males yelling at each other[;]”
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“one male punched the other, and the one that got punched
was hitting the other with a stick[;]” and “one of the subjects
went down to the ground unresponsive and the other male
was saying something about his nephew[.]” Id. at 3. Detective
Brimmer also wrote that Ms. Bailey stated that “she called
911 but walked away prior to EMS and Police arrival.” Id.
*10 According to a sworn affidavit provided by Ms. Bailey,
she never said many of the statements Detective Brimmer
attributed to her, including that she “never used the word
‘punch’ because I did not see either of the two individuals
punching[;]” “never told Detective Brimmer that the man
helping the victim was the who hit the victim. The person who
hit the victim ran away. The victim was unresponsive and the
older man told me the victim was his nephew. The older man
asked me to call 911[;]” “never told Detective Brimmer that
the older man was involved in this fight[;]” and “[t]he police
arrived while I was on the phone with 911 and I spoke to a
lady officer. I did not tell Detective Brimmer that I left before
the police arrived.” Dkt. No. 85-10 at ¶¶ 6-9. Ms. Bailey
further stated that Detective Brimmer's report “contains false
statements. I never told him that I witnessed anyone punching.
I never told him that the older man who called the victim his
nephew was involved in the fight. I never told him that I left
before the police arrived.” Id. at ¶ 10.
b. Officer Cecile
Officer Cecile's police report, dated May 6, 2019, listed
Plaintiff as 55 years old, 5’7” tall, 160 pounds, and described
his apparent condition as “Impaired Alcohol.” Dkt. No. 77-6
at 2.
In the narrative portion of his report, Officer Cecile stated that
“while in route, dispatch notes read that there was a fight in
progress between two people with one person [ ] unconscious
on the ground, the other person was wearing a green sweat suit
and there is a very large stick involved.” Id. at 5. With respect
to Plaintiff's detention, Officer Cecile wrote “[b]ased on the
notes from dispatch and lack of cooperation for Goldych and
Adams, both were detained at this time.” Id. As for his call
with Ms. Bailey, Officer Cecile wrote:
Bailey stated that she witnessed the
fight between the victim and suspect ...
Bailey stated that the suspect was an
old black male wearing a green jump
suit. Bailey stated that she saw the
male in the jump suit dodge a punch
from the victim and then swing the
large stick at [t]he victim's head which
connected and knocked him to the
ground.
Id. As for Plaintiff's appearance, Officer Cecile described him
as “an older black male in a grayish/teal puffy jacket and green
pants[.]” Id.
c. Officer Tolone
Officer Tolone's police report, dated May 6, 2019, listed
Plaintiff as 55 years old, provided no height or weight, and
described his apparent condition as “Normal.” Dkt. No. 77-8
at 4.
In the narrative portion of his report, Officer Tolone wrote
that “[p]rior to our arrival dispatch advised us that our caller,
Jordan Bailey who refused to speak with us regarding this
incident, stated to the call taker that she saw two males
fighting, one wearing a green jump suit, and then saw
someone get struck with a stick and then saw the man on
the ground.” Id. at 2. With respect to Plaintiff's detention,
Officer Tolone wrote that “Adams was detained at this time
for suspicion that he was in deed [sic] the suspect in this
incident however, when we initially arrived on scene Adams
stated there was another male that started a fight with Jones.”
Id. As for Plaintiff's appearance, Officer Tolone wrote that
“Adams, at the time contact was made, was wearing green
pants and a grey / green vest.” Id.
d. Other Police Reports
Officer Russell prepared a short report, also dated May 6,
2019, with a brief narrative that does not mention Ms. Bailey
or Plaintiff, or Officer Russell's interactions with either of
them. Dkt. No. 77-7 at 2.
Following Plaintiff's interrogation at CID, a non-party
officer photographed Plaintiff in the interrogation room
and collected his clothing early in the morning of May 7,
2019. Dkt. No. 77-10. This officer catalogued Plaintiff's
clothing as consisting of a “Black winter coat[,]” “Grey pants
with belt[,]” “Blue/green/white striped shirt[,]” “Blue Puma
sneakers[,]” and a “Baseball Hat (Grey, green Bird Game
logo)[.]” Id. at 3.
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5. Criminal Prosecution
In the weeks after the events of May 6, 2019, Officer Cecile,
Detective Brimmer, and Ms. Bailey testified before a grand
jury in Onondaga County. Dkt. No. 77-25. The grand jury
subsequently indicted Plaintiff 10 for (i) assault in the first
degree in violation of N.Y. Penal Law § 120.10(1); (ii)
assault in the second degree in violation of N.Y. Penal Law
§ 120.05(2); and (iii) criminal possession of a weapon in the
third degree in violation of N.Y. Penal Law § 265.02(1). Dkt.
No. 77-26 at 1. Plaintiff remained detained in jail pending
trial. Dkt. No. 77-55 at ¶¶ 309, 382.
*11 Mr. Jones died in the hospital on August 18, 2019.
Dkt. No. 85-15. A medical examiner ruled Mr. Jones’ death a
homicide as a result of complications from being struck in the
head “with a large stick containing imbedded nails.” Id. at 1,
2. After Mr. Jones’ death, it appears that the criminal charges
against Plaintiff could have been increased from assault to
manslaughter. 11 Dkt. No. 77-55 at ¶¶ 372-74.
On August 19 and 20, 2019, ADA Michael Manfredi
offered Plaintiff, through his court-appointed counsel, “a
plea to Manslaughter in the first with a sentence of 12
years Determinate.” Dkt. No. 77-28 at 2, 1. On October 8,
2019, ADA Manfredi reiterated to Plaintiff's court-appointed
counsel that the “[o]ffer remains Man 1 st with 12 years
determinate.” Id. at 1.
On January 9, 2020, Plaintiff's court-appointed counsel made
a bail application on behalf on Plaintiff, in part on the basis
that:
We have had an opportunity to
review much of the evidence against
[Plaintiff] and the defense believes
there is significant evidence that
the People have the wrong man
in jail. Despite what the People
have presented as a “confession”, the
defense believes that the evidence
will show that it is a psychologically
coerced false confession. There is
no indication there are any witnesses
identifying him at the scene. In fact the
opposite. The People's case is weak.
Dkt. No. 77-39 at ¶ 22.
Soon after, an investigator from the DA's Office contacted
Ms. Bailey. Dkt. No. 77-34 at 1. On January 16, 2020, Ms.
Bailey provided a voluntary affidavit that stated in relevant
part:
[Investigator Tim Galanaugh] asked if I would be willing
to come down to his office and meet with Mr. Coolican, the
prosecutor, and see if I would watch some video footage
that they had. He also made me aware that the police had
made an arrest of an individual the day of the [May 6, 2019]
incident. I told him that I would be willing to come down
and speak to them, and help in any way because I was
unaware that the victim had died.
Back in May, when everything had happened, I initially
called 911 for a man that was trying to assist the victim.
That man that I am speaking about was African American
and told me that the victim was his nephew. I stayed on
the scene with my siblings until the police officers arrived.
I gave information to the 911 person telling them that the
suspect that was responsible had run down James Street
towards downtown. I told the dispatch person that the
suspect was African American and over 6 foot tall and
was wearing dark green. As the officers showed up they
started talking to the older guy that was kneeling next to
his nephew. They wanted him to step back from the victim.
I told the female officer that he had nothing to do with it.
There was a[ ]lot going on at the time and I didn't want to
get more involved so I walked away with my siblings. At
the time, I felt that I had cooperated enough by reporting it
and I didn't want to involve myself or my siblings in what
appeared to me at the time to be a fight between two guys
that ended with one being knocked out with a stick. When
the police officers contacted me 30 minutes or so later to
see if I would come back to the scene to try to identify
someone, I didn't want to get involved. I was scared that
it would jeopardize my safety and my siblings[’] safety so
I told the police officers that I didn't want to do anymore
than what I had done to help already.
*12 ....
This is what I remember about the incident today: That I
had been leaving Bryant and Stratton on James Street and
observed two African American men that appeared to be
about to fight. Me and my siblings w[ ]ere almost walking
right through where this was occurring. The victim had a
long branch in his hand and starts to run up on the suspect.
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As the victim tries to swing on the suspect, the suspect
grabs the stick and snatches the stick from the victim. The
suspect then swings the stick at the victim with one hand
towards his upper body. I couldn't tell where it connected
or if he followed up with an elbow. All I seen is the victim
stumble and drop to the ground. Suspect then tosses the
stick. The suspect then goes to the pa[ ]nts pocket of the
victim, takes a cell phone out and smashes it onto the
pavement. Then the suspect takes off running down the
sidewalk on James Street towards downtown.
I didn't see where the suspect had run to because I then
focused my attention on the victim on the ground. That's
the same time when I noticed the older man get off the
stones by the Chestnut Apartments sign and walk over to
his nephew to check on him. I remember telling him that he
should help get him up off the ground. The victim wasn't
moving and looked like he had been knocked out, but after
a few moments of looking at him more closely I told the
older man that he, the victim, didn't look so good. That[’]s
when the uncle asked me to call 911, so I did. I stayed with
the uncle until the police arrived, but like I said, I walked
off shortly after with my siblings because we didn't want
to get more involved.
Today, at around 1045 AM, I met Mr. Coolican and
Investigator Galanaugh at the D.A.’s Office. They had me
watch some video footage from one of the officer's body
cameras when they showed up at the scene. In the video
I saw the victim on the ground and the African American
man, who told me the victim was his nephew, kneeling next
to him wearing a gray baseball hat. You can hear me talking
in the video telling the female officer that the victim was
hit with the stick.
I showed Mr. Coolican w[here] the victim's cell phone can
be seen in the video laying on the pavement, smashed. I
was told by Mr. Coolican and Investigator Galanaugh that
the person that was arrested in this incident, was the man
that told me that the victim was his nephew. The person that
the police arrested was not the suspect that I saw fighting
with the victim, and causing the victim to be hurt with the
stick. I saw that suspect run from the scene after smashing
the victim's phone on the ground.
Id. at 1-2; see also Dkt. No. 77-55 at ¶¶ 380-81.
Plaintiff was not released from jail until February 12, 2020,
more than nine months after his arrest on May 6, 2019. Dkt.
No. 77-55 at ¶ 382. The charges against Plaintiff were not
dismissed until September 15, 2020. Id. at ¶ 404.
a. Plaintiff's Capacity
On February 13, 2020, the judge presiding over Plaintiff's
criminal prosecution ordered Plaintiff's capacity evaluated
pursuant to New York Criminal Procedure Law § 730.
Dkt. No. 77-35 at 1 (stating that “the Court being of the
opinion that the defendant may be an incapacitated person” an
examination is ordered “to determine whether said defendant,
as a result of mental disease or defect, lacks capacity to
understand the proceedings against him or to assist in his own
defense”).
*13 Two physicians subsequently examined Plaintiff and
issued their reports on August 27, 2020. Dkt. No. 77-55 at ¶¶
391-92, 395. As relevant here, the first physician concluded
that “although suffering from Alcohol Use Disorder,”
Plaintiff “at the time of this evaluation, did not as a result of
mental disease or defect lack the capacity to understand the
proceedings against him or to assist in his own defense.” Id. at
¶ 394. The second physician similarly concluded that Plaintiff
“is not currently suffering from a mental illness which would
cause him to lack the capacity to understand the proceedings
against him or to assist his counsel in his own defense” and
that Plaintiff, “at the time of this evaluation, did not as a result
of mental disease o[r] defect lack the capacity to understand
the proceedings against him or to assist in his own defense.”
Id. at ¶ 398.
6. Additional Investigation by CID
On January 29, 2020, prior to Plaintiff's release from jail, two
non-party detectives returned to 941 James Street to obtain
video footage of the incident that had occurred nearly nine
months earlier. Id. at ¶ 383. Their investigation obtained no
such footage, id. at ¶ 384, and determined that none of a dozen
nearby businesses retained such footage for longer than three
months, Dkt. No. 77-31 at 2. The two detectives also made
efforts at this time to locate individuals previously mentioned
by Plaintiff and Ms. Goldych, including “the ‘Pete’ mentioned
in BWC [footage from the Responding Officers], but without
success.” Dkt. No. 77-55 at ¶¶ 385-86.
Forensic evidence recovered from items collected at 941
James Street—apparently including multiple drink containers
as well as Mr. Jones’ smashed phone—was linked to an
individual whose first name is Pierre. Dkt. No. 85-1 at ¶ 56;
Dkt. No. 85-4; Dkt. No. 85-14 at 9, 28; Dkt. No. 85-11 at 28. A
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non-party detective testified during his deposition that “[w]e
do have forensic evidence indicating that he may have been
present at the time of the incident or in the hours preceding
it.” Dkt. No. 77-50 at 123:24-124:9.
A September 2020 internal memorandum from the Syracuse
Police Department (“Memo”) states that such evidence
“strongly suggests, at a minimum, Pierre [ ] was onscene
at some point that day [May 6, 2019], and drinking with
the group” and notes that Pierre “is listed as much bigger
than Adams ([ ] - 6’00”, 220 lbs.), and closer resembles
that of the suspect description initially provided to 911 by
Jordan Bailey.” Dkt. No. 85-11 at 28. When provided with the
opportunity to speak with CID, Pierre apparently declined to
do so. Id. Another internal document from the Syracuse Police
Department indicates that while Pierre had been identified as
“a person of interest,” “there is no proof beyond a reasonable
doubt suggesting [Pierre] is the primary suspect at this time.”
Id. at 7-8. The Memo notes that the investigation of Mr. Jones’
death “will now be considered ‘unsolved’.” Id. at 30.
C. Prior Proceedings
1. Citizen Review Board
In April 2021, Plaintiff filed a complaint with Defendant
City's Citizen Review Board in connection with his arrest and
interrogation. Dkt. No. 85-11 at 14-21. The Syracuse Police
Department's Internal Affairs Division assigned a sergeant to
investigate Plaintiff's complaint and prepare a case report. Id.
at 1-13 (“Report”). The sergeant's investigation included an
interview with a deputy police chief. Id. at 8-9. The sergeant
included the following information from that conversation in
the Report:
I addressed the complaints made
by Mr. Adams of the false arrest
as well as being interviewed while
intoxicated. Deputy Chief [ ] was able
to explain there is case law which
supports interviewing a person who is
intoxicated. The only limitation to this
is if the person being interviewed is
intoxicated to the point of being in
a manic state. Deputy Chief [ ] also
informed me it is a matter of training
that detectives are trained on the
fact that interviewing an intoxicated
person is lawful, unless in this manic
state.... Therefore, the actions by [the
D]etectives during that interview were
lawful and proper.
*14 Id. at 9. The Report ultimately concluded that:
Mr. Adams[’] claim that he was
arrested and charge[d] for a crime he
did not commit is true. However, after
reviewing this case and based on the
evidence shown, there is no evidence
to show wrong doing on behalf of
any of the Syracuse Police Officers
involved. The interview conducted
by Det. Beauchine and then Det.
Brimmer was lawful and proper. There
was no violation of any rules and
regulations by Det. Beauchine or Det.
Sgt. Brimmer, or any officer. The basis
for Mr. Adams being charged with this
crime was due to his own admission
and the lack of cooperation from the
original eye witness. Therefore, this
complaint is unsubstantiated.
Id. at 12.
In the course of reaching these conclusions, the sergeant also
briefly spoke with the Detectives. Id. at 11-12. According to
Detective Brimmer, “Mr. Adams did not appear excessively
intoxicated during the interview” that began on May 6, 2019.
Id. at 11. Detective Beauchine similarly “stated [that] he
did not feel Mr. Adams was excessively intoxicated” during
the interview. Id. at 12. Detective Brimmer also shared that
“Mr. Adams would not have been under arrest without the
confession.” Id. at 11.
The sergeant, the sergeant's supervisor, a bureau chief, the
first deputy chief, and the chief of police are all listed as
March 2022 signatories to the Report. Id. at 13.
2. New York Court of Claims
Plaintiff previously filed a notice of claim in the New
York Court of Claims. Dkt. No. 63-1. Defendants examined
Plaintiff on January 22, 2021. Dkt. No. 77-43.
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D. Procedural History
Plaintiff commenced this action in June 2021. Dkt. No. 1.
Defendants moved to dismiss the Complaint in July 2021.
Dkt. No. 7. Plaintiff voluntarily dismissed his claims against
one individual defendant and otherwise opposed the motion.
Dkt. Nos. 9, 16.
In March 2022, United States Senior District Judge Lawrence
E. Kahn partially granted and partially denied Defendants’
motion to dismiss. Dkt. No. 19. Judge Kahn observed
that “[i]f the facts alleged by Plaintiff are true, Plaintiff's
detainment amounts to a substantial miscarriage of justice.”
Id. at 1. Judge Kahn dismissed Plaintiff's second, sixth,
seventh, and ninth claims, as well as another individual
defendant, and denied the balance of Defendants’ motion. Id.
at 1-18. Discovery proceeded, with the parties requesting and
receiving numerous extensions. See generally Docket Sheet.
In January 2024, United States Magistrate Judge Mitchell J.
Katz denied Plaintiff's motion to amend the Complaint to add
two individual defendants, but granted Plaintiff's request to
dismiss his claims against three other individual defendants.
Dkt. No. 64.
The Motion was fully submitted in April 2025. Dkt. Nos. 77,
85, 90.
E. Plaintiff's Claims
Plaintiff's remaining claims, 12 see Dkt. No. 19, are as
follows: pursuant to Section 1983, (i) false arrest against
the Individual Defendants, Dkt. No. 1 at ¶¶ 41-47; (ii)
malicious prosecution against Defendants, id. at ¶¶ 63-71; (iii)
fabricated evidence against Defendants, id. at ¶¶ 72-80; (iv)
a Monell claim against Defendant City, id. at ¶¶ 52-62; and,
pursuant to New York law, (v) false arrest against Defendants,
id. at ¶¶ 91-93; and (vi) negligent supervision, etc., against
Defendants, id. at ¶¶ 97-100.
III. STANDARD OF REVIEW
*15 Summary judgment is properly granted only if, upon
reviewing the evidence in the light most favorable to the
nonmovant, there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct.
2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348,
89 L.Ed.2d 538 (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, 106 S.Ct. 2505; 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, 106 S.Ct. 2505).
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
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which a jury could find that certain
of the individual police officers
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, 153 F.4th 169,
179 (2d Cir. 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.
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1. Plaintiff's Detention at 941 James Street
*17 Defendants first contend that Plaintiff's false
arrest claims should fail because—although Plaintiff was
handcuffed, placed in the back of a police vehicle, transported
from his home to a police station approximately 30 minutes
later, and detained for hours—he was not actually under
arrest during this time. Instead, Defendants argue, the
approximately five-hour seizure of Plaintiff prior to his
formal arrest merely constituted an investigative stop and
only required reasonable suspicion. Dkt. No. 77-56 at 13,
16 (stating that “only reasonable suspicion was required” to
detain Plaintiff at 941 Adams Street and Defendants “had
ample reasonable suspicion to detain Plaintiff”); id. at 17,
18 (stating that “Plaintiff's pre-confession detainment at CID
was merely a continuation of his on-scene detainment” and
“the detainment was supported by reasonable suspicion”);
Dkt. No. 90 at 6 (stating that, as to Plaintiff's interrogation,
“Defendants maintain that Plaintiff was being detained
requiring only reasonable suspicion”).
This is a particularly weak argument given applicable law and
the facts of this case. 14 See, e.g., United States v. Lefebvre,
117 F.4th 471, 475 (2d Cir. 2024) (“There were several factors
present during th[is] seizure that, in many situations, this
Court would consider to be evidence that a seizure had indeed
become a de facto arrest. [Plaintiff]’s ‘freedom of movement
was restrained’ and ‘handcuffs were used.’ ... [T]he encounter
lasted roughly 20 minutes.... [Plaintiff]’s transportation to
a police station, instead of some of other reasonable third
location, would in many situations clearly establish that the
seizure had ripened into a de facto arrest.”) (citations omitted)
(collecting cases). The Court agrees with Plaintiff, Dkt. No.
85 at 8-9, that Defendants’ maximalist position regarding
their multi-hour detention of Plaintiff is unsupported by
Fourth Amendment jurisprudence, see, e.g., United States
v. Candelario, 486 F. App'x 907, 908 (2d Cir. 2012) (“It
is well established that ‘a police officer may briefly detain
an individual for questioning if the officer has a reasonable
suspicion that the individual is, has been, or is about to be
engaged in criminal activity.’ ”) (emphasis added) (quoting
United States v. Padilla, 548 F.3d 179, 186 (2d Cir. 2008)).
See also Grice, 873 F.3d at 167 (“In general, to determine
whether a Terry stop is so intrusive as to become an arrest, we
look to: [‘]the amount of force used by police, the need for
such force, and the extent to which the individual's freedom
of movement was restrained, and in particular such factors as
the number of agents involved, whether the target of the stop
was suspected of being armed, the duration of the stop, and
the physical treatment of the suspect, including whether or
not handcuffs were used.[’]”) (quoting United States v. Perea,
986 F.2d 633, 645 (2d Cir. 1993)).
By approximately 7:34 p.m., Plaintiff had already been
questioned for several minutes by multiple officers at the
scene. See supra Section II.B.2.a.ii. Plaintiff had informed
officers that he did not assault Mr. Jones (which Ms. Bailey
had also said); that the person who assaulted Mr. Jones had
run down James Street (which Ms. Bailey had said as well);
that the assailant was a black man named “Pete” (which
Ms. Goldych had also said); and that Plaintiff lived in
one of the apartments at 941 James Street. Id. Defendants
acknowledge that “the entire interaction was peaceful” prior
to Plaintiff's handcuffing, Dkt. No. 77-56 at 15, and Officer
Tolone testified that he did not feel his safety was at issue,
Dkt. No. 90-1 at ¶ 510. Throughout this time, Plaintiff did
not interfere with the investigation, continued answering
questions from officers, and made no effort to leave the scene.
See supra Section II.B.2.a.ii. Indeed, BWC footage shows
Plaintiff sitting down and speaking with Officer Russell
seconds before Officer Tolone directed him to stand up and
turn around. Dkt. No. 77-17 at 4:34. Officer Tolone then
handcuffed Plaintiff and informed Plaintiff that he was being
detained. Id. Officer Tolone proceeded to place Plaintiff into
the back of one of the multiple police vehicles parked in front
of Plaintiff's home. Id. at 5:08.
*18 Given this factual record, a reasonable juror could
conclude that Plaintiff was arrested at this time. Grice, 873
F.3d at 167. As the authority upon which Defendants rely,
Dkt. No. 77-56 at 15, makes clear, “[h]andcuffing is ordinarily
not incident to a Terry stop, and tends to show that a stop
has ripened into an arrest,” Grice, 873 F.3d at 167. See
also United States v. Newton, 369 F.3d 659, 676 (2d Cir.
2004) (“Handcuffs are generally recognized as a hallmark of
a formal arrest.”) (collecting cases). Moreover, Defendants
have failed to demonstrate the applicability of any of the
“certain unusual circumstances” when “handcuffing a suspect
to investigate a reasonable suspicion does not transform a
Terry stop into an arrest.” Grice, 873 F.3d at 168 (collecting
cases); see also Dkt. No. 77-56 at 15-16. As just discussed,
nothing in the record indicates concern about officer safety.
The balance of Defendants’ cursory arguments about why
Plaintiff purportedly needed to be handcuffed and placed in
the back of a police vehicle are unpersuasive. United States
v. Fiseku, 915 F.3d 863, 870 (2d Cir. 2018) (“[T]o satisfy
the reasonableness standard, officers conducting stops on less
than probable cause must employ the least intrusive means
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reasonably available to effect their legitimate investigative
purposes.”) (quoting Newton, 369 F.3d at 674).
2. Probable Cause
Defendants next argue that, regardless of when Plaintiff was
arrested, they had probable cause to arrest him for assault 15
within moments of arriving at 941 James Street. Dkt. No.
77-56 at 12-18.
This argument is also unconvincing, again given applicable
law and the facts of this case. “To assess probable cause,
a court considers only the facts ‘available to the officer at
the time of the arrest and immediately before it.’ ” Ashley,
992 F.3d at 136 (quoting Stansbury v. Wertman, 721 F.3d 84,
89 (2d Cir. 2013)). The parties largely agree on the basic
information known to the Responding Officers at the time
Plaintiff was handcuffed: 16 the 911 call notes, Plaintiff's
presence at the scene, and some blood on Plaintiff's lip. Dkt.
No. 77-56 at 13-14; Dkt. No. 85 at 14-15. The parties dispute
the factual contours of much of that information, however, as
well as its legal significance.
Defendants’ arguments regarding probable cause miss the
forest for the trees. When evaluating probable cause, the
Second Circuit has “consistently held, as relevant here, that
‘an officer may not disregard plainly exculpatory evidence.’
” Washington v. Napolitano, 29 F.4th 93, 107 (2d Cir. 2022)
(quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.
2006)). Defendants were repeatedly informed that the black
man who assaulted Mr. Jones was no longer present at the
scene. See supra Section II.B.2.a. Ms. Bailey told the 911
dispatcher that this third man had assaulted the victim and
had run off, but that the victim and his uncle were still there.
Id. The 911 call notes indicated that the suspect was “last
seen wearing” a green sweatsuit. Dkt. No. 90-1 at ¶ 18.
Ms. Bailey again told Officer Russell—as Officer Russell
stood next to Plaintiff, possibly within earshot of Officer
Cecile as he approached—that the assailant who hit Mr.
Jones was someone other than Plaintiff and had run off. See
supra Section II.B.2.a. Plaintiff separately told Responding
Officers that the assailant had run off, that his name was
Pete, and that he was a black man. Id. Ms. Goldych also
indicated that the man's name was Pete. Id. Defendants simply
ignore the existence of this third man, identified by multiple
eyewitnesses at the scene (and subsequently confirmed by
forensic evidence). See Dkt. No. 77-56 at 12-18; see also Dkt.
No. 77-50 at 123:24-124:9; Dkt. No. 85-11 at 28.
*19 Instead, Defendants argue that Plaintiff “was the only
individual on scene that matched Ms. Bailey's description.”
Dkt. No. 77-56 at 14. But a reasonable juror could readily
conclude that Plaintiff did not match Ms. Bailey's description.
As the parties agree, the 911 call notes described the assailant
as 25 to 35 years old, 6’3” tall, with a “med[ium] build,”
and “black male.” Dkt. No. 90-1 at ¶ 18; Dkt. No. 77-4
at 3. At the time, Plaintiff was 55 years old, 5’7” tall, and
weighed approximately 160 pounds. See, e.g., Dkt. No. 90-1
at ¶ 515. Defendants’ own observations and descriptions of
Plaintiff are consistent with these attributes. See, e.g., Dkt.
No. 77-6 at 2 (Officer Cecile's police report listing Plaintiff's
age as 55, height as 5’7,” and weight as 160); Dkt. No. 77-23
(Detective Brimmer's arrest report listing the same); Dkt. No.
77-8 at 4 (Officer Tolone's police report listing Plaintiff's
age as 55); Dkt. No. 77-16 at 4:11 (Officer Russell's BWC
footage showing her asking Plaintiff for his birthdate, prior
to his arrest, and being told the date in 1964), 18:26 (Officer
Russell's BWC footage showing her providing Plaintiff's
birthdate to another officer); Dkt. No. 77-25 at 7:5-11 (Officer
Cecile testifying that he thought Plaintiff was in his “[l]ate
50s or early 60s” “just going by looking at [him]”).
The only portion of Plaintiff's physical attributes that
“matched” Ms. Bailey's description of the suspect is that
Plaintiff was also “a black male.” Dkt. No. 90-1 at ¶ 18.
A reasonable juror could conclude that this fails to provide
reasonable suspicion to briefly detain Plaintiff, let alone
probable cause to arrest him. See, e.g., United States v. Walker,
965 F.3d 180, 186 (2d Cir. 2020) (“As we have repeatedly
said, ‘race, when considered by itself and sometimes even
in tandem with other factors, does not generate reasonable
suspicion for a stop.’ ”) (quoting United States v. Swindle,
407 F.3d 562, 569-70 (2d Cir. 2005)); Zuniga-Perez v.
Sessions, 897 F.3d 114, 124 (2d Cir. 2018) (“As the Supreme
Court has made abundantly clear, stopping and interrogating
people based solely on race or ethnicity violates the Fourth
Amendment.”) (citing United States v. Brignoni-Ponce, 422
U.S. 873, 885-86, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975));
Dancy v. McGinley, 843 F.3d 93, 109 (2d Cir. 2016) (“[A]
description of race and gender alone will rarely provide
reasonable suspicion justifying a police search or seizure.”)
(quoting Brown v. City of Oneonta, 221 F.3d 329, 334 (2d Cir.
2000)); Jenkins, 478 F.3d at 90 (“It has long been established,
however, that when that description could have applied to any
number of persons and does not single out the person arrested,
probable cause does not exist.”) (collecting cases); see also
supra n.13.
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Defendants also claim that Plaintiff's clothing “matched” the
description Ms. Bailey had provided, in that “his hat, shirt,
and pants all appeared to be different shades of green.” Dkt.
No. 77-56 at 13-14. This characterization is unsupported by
the BWC footage from the Responding Officers, which a
reasonable juror could conclude shows Plaintiff wearing a
grey hat, a white striped shirt, grey pants, and a puffy black
patterned jacket, none matching. See generally Dkt. Nos.
77-15, 77-16, 77-17. Defendants’ claim is also contradicted
by the assessment from the non-party officer who cataloged
Plaintiff's clothing as consisting of a “Baseball Hat (Grey,
green Bird Game logo)[,]” “Blue/green/white striped shirt[,]”
“Grey pants with belt[,]” and a “Black winter coat[.]” Dkt.
No. 77-10 at 3. In any event, the varied articles of clothing
Plaintiff wore on May 6, 2019 are not indisputably a “green
sweatsuit,” like Ms. Bailey had described. Dkt. No. 90-1 at ¶
18. And Ms. Bailey never described the suspect wearing any
hat at all, Dkt. No. 77-5, let alone a hat with prominent neon
lettering, like the one Plaintiff had on his head when Officer
Russell arrived, walked over to Plaintiff and Ms. Bailey, and
began speaking with them, Dkt. No. 77-16 at 0:00. Given this
factual record, Defendants have not established that Plaintiff's
clothing “matched” the description of the suspect such that
they are entitled to judgment as a matter of law.
*20 At best, Defendants’ argument is that they had probable
cause to arrest Plaintiff because some of his clothing may have
had some green. The Court finds this argument unpersuasive
given the Second Circuit's analysis in Dancy v. McGinley. In
that Section 1983 case, police officers received a description
of a robbery suspect as simply “[t]hin black male, brown
jacket.” 843 F.3d at 99. Minutes later, officers stopped, and
ultimately arrested, two teenagers near the crime scene, one
of whom was wearing a “camouflage-patterned coat, with
green, light green, and brown patches.” Id. at 100, 101. As
relevant here, the panel reasoned that there was not even
reasonable suspicion to stop this teenager, who “was indeed
thin, black, and male. But, unlike the description, he was
wearing a camouflage-patterned coat.” Id. at 109. The Circuit
went on to explain that “[w]hile such a discrepancy does not
necessarily defeat a finding of reasonable suspicion ... the
remaining description—thin, black, and male—is too vague
in the circumstances here to justify a stop of anyone meeting
it[.]” Id. (citations omitted) (collecting cases).
A reasonable juror could reach a similar conclusion here.
Plaintiff's age, height, and build were nothing like the physical
description Defendants received for the suspect. Further,
Plaintiff's clothes, in color and type, did not constitute a
“green sweatsuit,” and thus did not provide Defendants
reasonable suspicion to detain him, let alone probable cause
to arrest him. See Dufort v. City of New York, 874 F.3d 338,
350 (2d Cir. 2017) (“Viewing the evidence in the light most
favorable to the plaintiff, a reasonable jury could find that
the police arrested [plaintiff] based on little more than a
witness's statement that he wore a similar shirt to that of one of
[the victims’] attackers. Although a jury could also interpret
the evidence differently, the record presents genuine issues
of material fact that preclude the conclusion that there was
probable cause as a matter of law and that, instead, require a
trial on the merits.”); see also supra n.13.
Defendants’ argument regarding Plaintiff's presence at the
scene fares no better. See, e.g., United States v. Delossantos,
536 F.3d 155, 160 n.4 (2d Cir. 2008) (“[A] person's presence
at a crime scene or association with criminal suspects do
not, without more, amount to probable cause to arrest.”);
Dufort, 874 F.3d at 350 (“Police do not have particularized
probable cause to make an arrest simply because a suspect
has suspicious acquaintances, or happens to be at the scene
of a crime[.]”) (citation omitted); Curry v. City of Syracuse,
316 F.3d 324, 335 (2d Cir. 2003) (“[A]n individual's presence
in an area of expected criminal activity, standing alone, is
not enough to support a reasonable, particularized suspicion
that the person is committing a crime.”) (quoting Illinois v.
Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d
570 (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, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455
N.E.2d 1248, 1250 (1983)).
As to the blood on Plaintiff's lip, in response to Officer
Russell's question, Ms. Bailey can be heard explaining that
“he was hit too in the whole altercation, you see that stick he
was hit with that.” Dkt. No. 77-55 at ¶ 12; see also Dkt. No.
77-16 at 0:05.
In sum, the totality of the circumstances proffered by
Defendants fails to establish an undisputed factual record on
which to grant summary judgment. Delossantos, 536 F.3d at
161. A reasonable juror could find that Defendants lacked
probable cause to arrest Plaintiff at approximately 7:34 p.m.
on May 6, 2019.
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3. Subsequent Information
Defendants go on to argue that, between handcuffing Plaintiff
and formally arresting him approximately five hours later,
they obtained additional information that provided them
probable cause to arrest Plaintiff. Dkt. No. 77-56 at 15-21.
Because a reasonable juror could conclude that Plaintiff
had been arrested at approximately 7:34 p.m., however, this
subsequent information is not relevant to analyzing probable
cause. See, e.g., Carruthers, 153 F.4th at 179 (“To assess
probable cause, a court considers only the facts ‘available to
the officer at the time of the arrest and immediately before
it.’ ”) (quoting Ashley, 992 F.3d at 136); Gonzalez v. City of
Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (“The inquiry
is limited to ‘whether the facts known by the arresting officer
at the time of the arrest objectively provided probable cause
to arrest.’ ”) (quoting Jaegly v. Couch, 439 F.3d 149, 153
(2d Cir. 2006)). Nonetheless, for the avoidance of doubt, a
reasonable juror could conclude that none of the subsequent
information identified by Defendants, in combination with the
earlier information discussed above, provided probable cause
to formally arrest Plaintiff at approximately 1:00 a.m. on May
7, 2019.
a. Plaintiff's Continued Detention Prior to His
Interrogation
*21 Defendants first argue that the Responding Officers
“performed many investigative tasks” after handcuffing
Plaintiff at approximately 7:34 p.m., and that Detective
Brimmer “performed several investigative tasks” prior to
interrogating Plaintiff at approximately 10:30 p.m. Dkt. No.
77-56 at 15, 17.
With respect to the Responding Officers, however, the only
additional information Defendants identify is Officer Cecile's
subsequent call with Ms. Bailey. Id. at 15-16. During that
call, Ms. Bailey appears to have again stated that the man
who hit Mr. Jones was “wearing a green jump suit,” Dkt. No.
77-55 at ¶ 100, and was “like 35 to 40” years old, Dkt. No.
77-15 at 16:43, not the “[l]ate 50s or early 60s” that Officer
Cecile perceived Plaintiff to be, Dkt. No. 77-25 at 7:5-11.
Such information is largely consistent with—and duplicative
of—the information Responding Officers already had. See
supra Section IV.A.2. Thus, a reasonable juror could conclude
that Plaintiff still did not match the description that Ms. Bailey
provided.
Defendants further contend that the Responding Officers
undertook various investigative efforts at 941 James Street
after handcuffing Plaintiff. Dkt. No. 77-56 at 15-16. But
Defendants identify no relevant additional information from
these efforts. Id. Instead, Defendants take the position that
the Responding Officers had “ample” probable cause to arrest
Plaintiff because “[a]t the conclusion of th[eir] investigation,
nothing excluded Plaintiff as the assailant. In other words,
no eye-witness exonerated Plaintiff ... and there was no
available surveillance evidence.” Id. at 16. Defendants cite
no legal authority for the proposition that unless a person
is “exonerated” by an eyewitness or video evidence at the
scene of a crime, there is probable cause to arrest them. Cf.
Ricciuti, 124 F.3d at 130 (“This argument—an ill-conceived
attempt to erect a legal barricade to shield police officials
from liability—is built on the most fragile of foundations; it is
based on an incorrect analysis of the law and at the same time
betrays a grave misunderstanding of those responsibilities
which the police must have toward the citizenry in an open
and free society.”). Defendants identify nothing from these
investigative efforts that even suggested that Plaintiff had
committed a crime. Hawkins, 37 F.4th at 858.
With respect to Detective Brimmer's investigation prior to
Plaintiff's interrogation, Defendants similarly contend that
Detective “Brimmer did not discover any evidence that
suggested Plaintiff was not the assailant.” Dkt. No. 77-56
at 17. More importantly, Defendants again fail to identify
any additional information developed by Detective Brimmer
that indicated Plaintiff was the assailant. Id. Moreover, a
reasonable juror could conclude that the factual record belies
Defendants’ claim. The results of the canvas conducted by
Detective Brimmer and his colleague further indicated that
there had been three men drinking at the scene of the assault,
not just Plaintiff and Mr. Jones, and thus further supported the
possibility that Plaintiff was not the assailant. Dkt. No. 77-13
at 2; see also Dkt. No. 77-56 at 12.
b. Plaintiff's Interrogation
Defendants next argue that Plaintiff's statements during his
interrogation by the Detectives provided probable cause for
his arrest, and that “Plaintiff voluntarily waived his rights
and was not coerced into a confession.” Dkt. No. 77-56 at
18-21. 17
*22 “Challenges to the voluntariness of a confession are
based on two overlapping constitutional provisions: (1)
due process protections under the Fifth (or Fourteenth)
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Amendment, and (2) the Fifth Amendment privilege against
self-incrimination.” United States v. Mendonca, 88 F.4th 144,
163 (2d Cir. 2023) (citing Dickerson v. United States, 530
U.S. 428, 433, 120 S.Ct. 2326, 147 L.Ed.2d 405 (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, 120
S.Ct. 2326).
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
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acceptable deceptive police practices as well as other specific
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, 130 S.Ct. 2250, 176
L.Ed.2d 1098 (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, 107
S.Ct. 515, 93 L.Ed.2d 473 (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,
93 S.Ct. 2041, 36 L.Ed.2d 854 (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,
89 S.Ct. 1420, 22 L.Ed.2d 684 (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, 144
S.Ct. 1745, 219 L.Ed.2d 262 (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.
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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
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.
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Crim. Proc. Law § 70.10(1) (“[E]vidence is not legally
sufficient when corroboration required by law is absent.”).
*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)); Werkheiser,
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, 468 N.Y.S.2d 453, 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
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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
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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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,
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619 F.2d 196, 199 (2d Cir. 1980); then quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89
L.Ed.2d 452 (1986); then citing Turpin, 619 F.2d at 199; and
then quoting City of Canton v. Harris, 489 U.S. 378, 380, 109
S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
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, 131 S.Ct. 1350, 179
L.Ed.2d 417 (2011) (citing Oklahoma City v. Tuttle, 471
U.S. 808, 822-23, 105 S.Ct. 2427, 85 L.Ed.2d 791 (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
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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
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, 131 S.Ct. 1350).
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-
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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, 71 N.Y.2d 76,
524 N.Y.S.2d 1, 518 N.E.2d 896, 901-02 (1987); and then
quoting Kenneth R. v. Roman Catholic Diocese of Brooklyn,
229 A.D.2d 159, 654 N.Y.S.2d 791, 793 (N.Y. App. Div.
1997)). Additionally, “[w]hen a 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., 21 N.Y.3d 420, 972 N.Y.S.2d 169, 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.,
972 N.Y.S.2d 169, 995 N.E.2d at 135 (citing Valdez v. City of
New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587, 592, 960 N.E.2d
356 (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, 137 S.Ct. 548, 196
L.Ed.2d 463 (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, 131 S.Ct. 2074, 179 L.Ed.2d
1149 (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
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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, 134
S.Ct. 1861, 188 L.Ed.2d 895 (2014) (citation omitted).
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, 51
A.D.2d 432, 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,
131 S.Ct. 2074). 25
G. John Does 1-100
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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
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.
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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
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.
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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
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,
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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, 134 S.Ct. 1861).
For similar reasons, the Court also does not address the parties’ competing expert reports. Dkt. Nos. 77-53,
77-54, 85-14.
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Allah v. Annucci, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 3972517
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Shakim Abd ALLAH, Plaintiff,
v.
Anthony ANNUCCI; Cheryl Morris;
Thomas Griffin; Jaifa Collado, Defendants.
No. 16–CV–1841 (KMK)
|
Signed 09/07/2017
Attorneys and Law Firms
Shakim Abd Allah, Comstock, NY, Pro Se Plaintiff
Bradley G. Wilson, Esq., New York State Office of the
Attorney General, New York, NY, Counsel for Defendants
OPINION & ORDER
KENNETH M. KARAS, District Judge:
*1 Plaintiff Shakim Abd Allah (“Plaintiff”), currently an
inmate at Great Meadow Correctional Facility, brings this
pro se Action against Anthony Annucci (“Commissioner
Annucci”), Cheryl Morris (“Morris”), Thomas Griffin
(“Superintendent Griffin”), and Jaifa Collado (“Collado,”
and collectively, “Defendants”), alleging Defendants violated
his rights under the First and Fourteenth Amendments and
New York State law when they denied Plaintiff's attendance
at certain religious events and failed to provide religious
accommodations while Plaintiff was incarcerated at Green
Haven Correctional Facility. (See Compl. (Dkt. No. 2).) As
a result of these alleged violations, Plaintiff contends that he
could not “freely practice his religion.” (Id. ¶ 48.) Before
the Court is Defendants' Motion To Dismiss the Complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) (the “Motion”). (See Dkt. No. 23.) For the reasons
to follow, Defendants' Motion is granted in part and denied
in part.
I. Background
A. Factual Background
The following facts are taken from the Complaint and the
documents appended thereto, and are assumed true for the
purpose of resolving the Motion.
1. Denial of Attendance at Religious Events
On October 2 and October 8, 2015, Plaintiff was “denied his
right to attend the Shi'ite religious event[s] of Ghadir Khum ...
and Mubahila.” (Compl. ¶ 14.) On October 13, 2015, Plaintiff
“filed a grievance” and “also wrote a letter to Defendant
Collado dated [October 9, 2015] regarding the denial of his
rights to attend these events.” (Id.) The letter to Collado
notified him that Plaintiff was “requesting approval to attend
the 10 days of Ashura which started on [October 15, 2015]
and finished on [October 24, 2015].” (Id.) On October 23,
2015, Plaintiff “sent a letter to Defendant Annucci, regarding
his being denied attendance at the Shia Holy Days [o]f Ghadir
Khum, Mubahila, and Ashura.” (Id. ¶ 35.) On the same day,
Plaintiff sent a letter to Defendant Morris. (See id. ¶ 38.)
Plaintiff alleges that Commissioner Annucci and Morris never
responded to his letters, (see id. ¶¶ 36, 38), and “Collado[ ]
did not respond to Plaintiff['s]... letter until [November 5,
2015], after ... Plaintif... had already been denied attendance
at Ashura,” (id. ¶ 38).
Plaintiff asserts that he “was entitled to a hearing on his
grievance within 16 calendar days of the receipt of his
grievance” and that on December 18, 2015, he “sent a
letter to [the Inmate Grievance Request Program (‘IGRP’) ]
Supervisor L. Stanway, requesting that his grievance ... be
sent to Superintendent Griffin for decision” within 21 days.
(Id ¶¶ 19–20.) On January 11, 2016, Plaintiff “sent a letter
to IGRP Supervisor L. Stanway requesting that his grievance
be forwarded to [the Central Office Review Committee
(‘CORC’) for] review and decision.” (Id. ¶ 21.) Plaintiff
alleges that “CORC failed to render a decision on both
grievances within 30 days” in violation of certain regulations.
(Id. ¶ 22.)
2. Accommodation of Other Faith Groups
*2 Plaintiff contends that “Defendants recognize and
provide accom[m]odations to many faith groups within the
inmate population” and that these “religious groups are
provided with a Chaplain that serves as a religious leader
for the group.” (Id. ¶¶ 39–40.) Additionally, “[i]nmates
registered as members of a recognized group may attend
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their own congregational worship service and religious
classes, facilitated by the Chaplain or an approved volunteer,
or an approved inmate facilitator, and may observe
religious holidays as listed on the annual [Department
of Corrections and Community Supervision (‘DOCCS’) ]
religious calendar.” (Id. ¶ 40.) Plaintiff avers that “all of the
religious groups recognized ... are also allowed to have a
fund[ ]raiser to raise money to purchase religious text books
and educational material about their faith.” (Id. ¶ 41.)
Plaintiff alleges that “[t]he Islamic program offered by ...
Defendants is a Sunni Muslim religious program, because
the Chaplain is a Sunni Muslim, the sermons during
Juma'ah service focus on Sunni Muslim [t]eachings,... the
majority of classes offered in DOCCS facilities are for Sunni
Muslims, and the money raised through fund[ ]raisers is
used to purchase Sunni Muslim texts and other educational
material.” (Id. ¶ 42.) “In sum,” Plaintiff asserts, “the program
is dominated, controlled[,] and officiated exclusively by
Sunni Muslims,” (id.), despite the fact that “there are more
inmates that [i]dentify as Shia in the DOCCS system th[a]n
there are inmates that belong to many of the religious groups
that DOCCS currently recognize[s],” (id. ¶ 46). Plaintiff
asserts that “[a] Sunni Muslim ... can[ ]not provide religious
guidance and counseling to Shia Muslims.” (Id. ¶ 26.)
Furthermore, “Plaintiff... believes ... that congregate prayer
service on [F]riday, the Juma'ah service, [is] fundamental to
the practice of his religion,” (id. ¶ 29), and “that the leader
of the congregate prayer during Juma'ah service must be a
fellow Shia, who correctly leads prayer, and is mature, sane,
just, and legitimate by birth,” and that such prayer is “invalid
if the leader does not meet these requirements,” (id ¶ 30). 1
As a result of these alleged violations, Plaintiff seeks
declaratory and injunctive relief, compensatory damages in
the amount of $100,000, punitive damages, and “costs [and]
[i]nterests to the extent permitted by law.” (Id. at 10–11.)
B. Procedural History
Plaintiff filed the Complaint on March 11, 2016. (See Dkt.
No. 2.) Plaintiff's request to proceed in forma pauperis was
granted on March 16, 2016. (See Dkt. No. 4.) In a memo
endorsement dated July 19, 2016, the Court issued a schedule
for briefing on the instant Motion. (See Dkt. No. 19.) On
September 2, 2016, Defendants filed the instant Motion To
Dismiss and accompanying papers. (See Dkt. Nos. 23–27.)
On October 3, 2016, Plaintiff filed his papers in opposition.
(See Dkt. Nos. 28–30.) Defendants filed their reply on
October 21, 2016. (See Dkt. No. 33.)
II. Discussion
A. Standard of Review
“The standards of review for a motion to dismiss under
Rule 12(b)(1) for lack of subject matter jurisdiction and
under 12(b)(6) for failure to state a claim are substantively
identical.” Gonzalez v. Option One Mortg. Corp., No. 12-
CV-1470, 2014 WL 2475893, at *2 (D. Conn. June 3,
2014) (internal quotation marks omitted); see also Neroni
v. Coccoma, No. 13-CV-1340, 2014 WL 2532482, at *4
(N.D.N.Y. June 5, 2014) (same), aff'd, 591 Fed.Appx. 28 (2d
Cir. 2015). “In deciding both types of motions, the Court
must accept all factual allegations in the complaint as true,
and draw inferences from those allegations in the light most
favorable to the plaintiff.” Gonzalez, 2014 WL 2475893, at
*2 (internal quotation marks omitted); see also Seemann v.
U.S. Postal Serv., No. 11-CV-206, 2012 WL 1999847, at *1
(D. Vt. June 4, 2012) (same). However, “[o]n a Rule 12(b)
(1) motion, ... the party who invokes the Court's jurisdiction
bears the burden of proof to demonstrate that subject matter
jurisdiction exists, whereas the movant bears the burden of
proof on a motion to dismiss under Rule 12(b)(6).” Gonzalez,
2014 WL 2475893, at *2; see also Sobel v. Prudenti, 25
F.Supp.3d 340, 352 (E.D.N.Y. 2014) (“In contrast to the
standard for a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance
of the evidence that it exists.” (internal quotation marks
omitted)). This allocation of the burden of proof is “[t]he only
substantive difference” between the standards of review under
these two rules. Smith v. St. Luke's Roosevelt Hosp., No. 08-
CV-4710, 2009 WL 2447754, at *9 n. 10 (S.D.N.Y. Aug.
11, 2009), adopted by 2009 WL 2878093 (S.D.N.Y. Sept. 2,
2009); see also Fagan v. U.S. Dist. Court for S. Dist. of N.Y.,
644 F.Supp.2d 441, 446–47 & n.7 (S.D.N.Y. 2009) (same).
1. Rule 12(b)(1)
*3 “A federal court has subject matter jurisdiction over
a cause of action only when it has authority to adjudicate
the cause pressed in the complaint.” Bryant v. Steele, 25
F.Supp.3d 233, 241 (E.D.N.Y. 2014) (internal quotation
marks omitted). “Determining the existence of subject matter
jurisdiction is a threshold inquiry[,] and a claim is properly
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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.” Morrison v. Nat'l
Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal
quotation marks omitted), aff'd, 561 U.S. 247, 130 S.Ct.
2869, 177 L.Ed.2d 535 (2010); see also Butler v. Ross, No.
16-CV-1282, 2016 WL 3264134, at *3 (S.D.N.Y. June 14,
2016) (same). Nevertheless, “[u]nlike Article III standing,
which ordinarily should be determined before reaching the
merits, statutory standing may be assumed for the purposes of
deciding whether the plaintiff otherwise has a viable cause of
action.” Coan v. Kaufman, 457 F.3d 250, 256 (2d Cir. 2006)
(citation omitted). While a district court resolving a motion
to dismiss under Rule 12(b)(1) “must take all uncontroverted
facts in the complaint... as true, and draw all reasonable
inferences in favor of the party asserting jurisdiction,” “where
jurisdictional facts are placed in dispute, the court has the
power and obligation to decide issues of fact by reference to
evidence outside the pleadings, such as affidavits,” in which
case “the party asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that
it exists.” Tandon v. Captain's Cove Marina of Bridgeport,
Inc., 752 F.3d 239, 243 (2d Cir. 2014) (alteration and internal
quotation marks omitted); see also Ray Legal Consulting Grp.
v. Gray, 37 F.Supp.3d 689, 696 (S.D.N.Y. 2014) (“[W]here
subject matter jurisdiction is contested a district court is
permitted to consider evidence outside the pleadings, such as
affidavits and exhibits”).
2. Rule 12(b)(6)
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his [or her] entitlement
to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations,
alteration, and internal quotation marks omitted). Indeed,
Rule 8 of the Federal Rules of Civil Procedure “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (alteration and internal quotation marks
omitted). Instead, a complaint's “[f]actual allegations must be
enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although “once
a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in
the complaint,” id. at 563, 127 S.Ct. 1955, and a plaintiff
must allege “only enough facts to state a claim to relief
that is plausible on its face,” id. at 570, 127 S.Ct. 1955, if
a plaintiff has not “nudged [his or her] claim[ ] across the
line from conceivable to plausible, the[ ] complaint must be
dismissed,” id., see also Iqbal, 556 U.S. at 679, 129 S.Ct.
1937 (“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. But 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.’ ” (citation
omitted) (second alteration in original) (quoting Fed. R. Civ.
P. 8(a)(2))); id. at 678–79, 129 S.Ct. 1937 (“Rule 8 marks
a notable and generous departure from the hypertechnical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.”).
“[W]hen ruling on a defendant's motion to dismiss, a judge
must accept as true all of the factual allegations contained in
the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.
2197, 167 L.Ed.2d 1081 (2007) (per curiam); see also Nielsen
v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing
the sufficiency of a complaint we accept as true all factual
allegations ....” (internal quotation marks omitted)); Aegis Ins.
Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d
Cir. 2013) (“In reviewing a dismissal pursuant to Rule 12(b)
(6), we ... accept all factual allegations in the complaint as
true ...” (alteration and internal quotation marks omitted)).
Further, “[f]or the purpose of resolving [a] motion to dismiss,
the Court... draw[s] all reasonable inferences in favor of the
plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F.Supp.2d 302,
304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC,
699 F.3d 141, 145 (2d Cir. 2012)).
*4 Where, as here, a plaintiff proceeds pro se, the court must
“construe[ ] [his] [complaint] liberally and interpret[ ] [it]
to raise the strongest arguments that [it] suggests]” Sykes v.
Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam)
(internal quotation marks omitted); see also Farzan v. Wells
Fargo Bank, N.A., No. 12-CV-1217, 2013 WL 6231615, at
*12 (S.D.N.Y. Dec. 2, 2013) (same), aff'd sub nom. Farzan
v. Genesis 10, 619 Fed.Appx. 15 (2d Cir. 2015). In deciding
a motion to dismiss a pro se complaint, it is appropriate to
consider “materials outside the complaint to the extent that
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they are consistent with the allegations in the complaint,”
Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514,
at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks
omitted), including “documents that a pro se litigant attaches
to his opposition papers,” Agu v. Rhea, No. 09-CV-4732,
2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010)
(italics omitted); see also Walker v. Schult, 717 F.3d 119,
122 n.1 (2d Cir. 2013) (noting that a court may consider
“factual allegations made by a pro se party in his papers
opposing the motion” (italics omitted)). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro
se party from compliance with relevant rules of procedural
and substantive law.” Bell v. Jendell, 980 F.Supp.2d 555,
559 (S.D.N.Y. 2013) (internal quotation marks omitted); see
also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir.
2008) (“[P]ro se litigants generally are required to inform
themselves regarding procedural rules and to comply with
them.” (italics and internal quotation marks omitted)).
B. Analysis
Defendants contend that Plaintiff's Complaint must be
dismissed for two reasons: (1) Plaintiff did not exhaust his
administrative remedies, and (2) Plaintiff failed to plausibly
allege a violation of his constitutional rights with respect
to the denial of attendance at two religious events. (See
generally Mem. of Law in Supp. of the Defs.' Mot. To Dismiss
(“Defs.' Mem.”) (Dkt. No. 24).) Defendants also argue that the
claims against Commissioner Annucci and Superintendent
Griffin must be dismissed because these Defendants were not
personally involved in the events giving rise to this Action.
(See id. at 7–9.)
1. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions
under [§] 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion
requirement applies to all personal incidents while in prison,
Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152
L.Ed.2d 12 (2002) (holding exhaustion is required for “all
inmate suits about prison life, whether they involve general
circumstances or particular episodes”); see also Johnson
v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (per curiam)
(same), and includes actions for monetary damages despite
the fact that monetary damages are not available as an
administrative remedy, Booth v. Churner, 532 U.S. 731,
741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (holding
exhaustion is required “regardless of the relief offered through
administrative procedures”). Moreover, the PLRA mandates
“ ‘proper exhaustion’—that is, ‘using all steps that the agency
holds out, and doing so properly,’ ... [which] entails ...
‘completing the administrative review process in accordance
with the applicable procedural rules.’ ” Amador v. Andrews,
655 F.3d 89, 96 (2d Cir. 2011) (alteration omitted) (quoting
Woodford v. Ngo, 548 U S. 81, 88, 90, 126 S.Ct. 2378, 165
L.Ed.2d 368 (2006)); see also Jones v. Bock, 549 U.S. 199,
211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“There is no
question that exhaustion is mandatory under the PLRA and
that unexhausted claims cannot be brought in court”).
As a general matter, the New York State DOCCS Inmate
Grievance Program (“IGP”) outlines the procedures that
apply to grievances filed by inmates in New York State
correctional facilities. The IGP provides for a three-
step grievance process. See 7 N Y. Comp. Codes R. &
Regs. (“N.Y.C.R.R.”) § 701 et seq.; see also Abdallah
v. Ragner, No. 12-CV-8840, 2013 WL 7118083, at *2
(S.D.N.Y. Nov. 22, 2013) (noting that “[DOCCS] provides
an administrative remedy for many prisoners' claims,” which
is “a grievance system available to prisoners in custody
at state prisons” (citing 7 N.Y.C.R.R. § 701.1(c))). Under
the framework used in typical cases, an inmate must first
file a complaint at the facility where the inmate is housed
within 21 calendar days of an alleged occurrence. See 7
N.Y.C.R.R. § 701.5(a)(1). The second step in the tripartite
framework is for the grievant or any direct party to appeal the
Inmate Grievance Review Committee's decision to the prison
superintendent within seven calendar days after receipt of the
written response, although the appealing party can seek an
exception to the time limit, see id. § 701.5(c)(1). The third
and final step is to appeal the superintendent's decision to
the CORC, which the prisoner must do within seven days
of the superintendent's written response to the grievance. See
id. § 701.5(d)(1)(i). Here, too, an inmate may request an
exception to the time limit, see id. “[O]nly after CORC has
reviewed the appeal and rendered a decision are New York's
grievance procedures exhausted.” Gardner v. Daddezio, No.
07-CV-7201, 2008 WL 4826025, at *2 (S.D.N.Y. Nov. 5,
2008).
*5 A plaintiff must exhaust his administrative remedies
before filing his initial complaint in federal court.
Indeed, “[w]hen a prisoner does not properly exhaust his
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administrative remedies before filing suit, the action must
be dismissed.” Mateo v. Alexander, No. 08-CV-8797, 2010
WL 431718, at *3 (S.D.N.Y. Feb. 9, 2010); see also Harris
v. Gunsett, No. 12-CV-3578, 2013 WL 3816590, at *6
(S.D.N.Y. July 22, 2013) (same). “This is so even if the
claim has since been exhausted.” Mateo v. Ercole, No. 08-
CV-10450, 2010 WL 3629520, at *3 (S.D.N.Y. Sept. 17,
2010). In other words, “[s]ubsequent exhaustion after suit is
filed ... is insufficient,” Neal v. Goord, 267 F.3d 116, 122 (2d
Cir. 2001), overruled on other grounds by Porter, 534 U.S.
516, 122 S.Ct. 983, 152 L.Ed.2d 12, even where “ ‘it might
seem more efficient simply to proceed with the lawsuit rather
than dismiss it only to see it immediately re-filed,’ ” Harris,
2013 WL 3816590, at *6 (quoting Mateo v. Alexander, 2010
WL 431718, at *3).
Defendants bear the burden of proving that Plaintiff failed
to exhaust available administrative remedies. See McCoy v.
Goord, 255 F.Supp.2d 233, 248 (S.D.N.Y. 2003) (“[The]
defendants bear the burden of proof and prisoner plaintiffs
need not plead exhaustion with particularity.”); see also
Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016)
(“[I]nmates are not required to specially plead or demonstrate
exhaustion in their complaints.” (internal quotation marks
omitted)). Thus, a motion to dismiss for failure to exhaust
should be granted only if “nonexhaustion is clear from the
face of the complaint.” Lovick v. Schriro, No. 12-CV-7419,
2014 WL 3778184, at *4 (S.D.N.Y. July 25, 2014) (internal
quotation marks omitted); see also Lee v. O'Harer, No. 13-
CV-1022, 2014 WL 7343997, at *3 (N.D.N.Y. Dec. 23, 2014)
(“Dismissal under Rule 12(b)(6) for failure to exhaust is
appropriate if such failure is evidenced on the face of the
complaint and incorporated documents”).
While Defendants raise Plaintiff's failure to exhaust in their
Motion To Dismiss, on February 28, 2017, Defendants filed
a letter informing the Court that “subsequent to the filing
of the Motion, CORC rendered a decision on Plaintiff's
grievance.” (Letter from Bradley G. Wilson, Esq., to Court
(Feb. 28, 2017) (Dkt. No. 36).) Defendants concede that
Plaintiff has now exhausted his administrative remedies, but
that “[t]his development [does] not change the fact that
Plaintiff had not exhausted his remedies before filing the
Complaint.” (Id.) 2
It is not clear from the face of the Complaint that Plaintiff
did not fully exhaust his administrative remedies before
commencing this Action. Plaintiff asserts that “CORC
failed to render a decision on both grievances within 30
days,” (Compl. ¶ 22), but his Complaint is silent as to
whether CORC issued a decision before March 11, 2016,
when Plaintiff filed the Complaint in this Action. Indeed,
Plaintiff specifically pleads that he “exhausted his avenue of
administrative review for this grievance.” (Id. ¶ 49.) Thus, the
Court cannot find that “nonexhaustion is clear from the face
of the complaint.” Lovick, 2014 WL 3778184, at *4 (internal
quotation marks omitted).
*6 In any event, Plaintiff's failure to exhaust his
administrative remedies before filing the Complaint “is
merely a temporary procedural flaw,” Wagnoon v. Johnson,
No. 02-CV-10282, 2004 WL 583764, at *3 (S.D.N.Y. Mar.
23, 2004) (dismissing the plaintiff's case without prejudice
so that he could reinstitute suit), and even were the Court to
dismiss Plaintiff's Complaint on this ground, such dismissal
would be without prejudice, see Berry v. Kerik, 366 F.3d
85, 87 (2d Cir. 2004) (noting that where a plaintiff has
failed to exhaust administrative remedies, dismissal without
prejudice is proper because the plaintiff can simply replead
after he exhausts); McCoy, 255 F.Supp.2d at 252 (“A
dismissal for failure to exhaust is usually without prejudice ...
because failure to exhaust is ordinarily a ‘temporary, curable,
procedural flaw.’ ” (quoting Snider v. Melindez, 199 F.3d
108, 111 (2d Cir. 1999))). Plaintiff would only need to file
an Amended Complaint to reinstitute this Action. Thus, the
Court proceeds to the merits of Plaintiff's claims. 3
2. Personal Involvement of Commissioner
Annucci and Superintendent Griffin
Defendants contend that “this case should be dismissed
against [D]efendants Annucci and Griffin because Plaintiff
has not alleged that they were personally involved in
depriving Plaintiff of a protected right.” (Defs.' Mem. 7.)
“It is well settled that, 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);
see also Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.
2006) (“[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” (internal quotation marks omitted)).
Relatedly, “[i]n an action under 42 U.S.C. § 1983, defendants
cannot be held liable under a theory of respondeat superior,”
Quezada v. Roy, No. 14-CV-4056, 2015 WL 5547277, at
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*7 (S.D.N.Y. Sept. 18, 2015) (citing Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978)); in other words, “[b]ecause vicarious liability is
inapplicable to ... § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official's
own individual actions, has violated the [law],” Iqbal, 556
U.S. at 676, 129 S.Ct. 1937; see also Fortunato v. Bernstein,
No. 12-CV-1630, 2015 WL 5813376, at *6 (S.D.N.Y. Sept. 1,
2015) (“Supervisory status, without more, is not sufficient to
subject a defendant to [§] 1983 liability.” (internal quotation
marks omitted)).
The Second Circuit has set forth five ways in which a plaintiff
may plead the personal involvement of a defendant:
(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
who committed the wrongful acts, or
(5) the defendant exhibited deliberate
indifference to the rights of inmates
by failing to act on information
indicating that unconstitutional acts
were occurring.
Grullon, 720 F.3d at 139 (italics omitted) (quoting Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). However, the
Second Circuit has recognized that the “[Iqbal ] decision ...
may have heightened the requirements for showing a
supervisor's personal involvement with respect to certain
constitutional violations,” id., but has “thus far declined to
resolve the question,” Golodner v. City of New London, No.
14-CV-173, 2015 WL 1471770, at *7 (D. Conn. Mar. 31,
2015); see also Fortunato, 2015 WL 5813376, at *6 (noting
that “the continuing validity of the Colon factors has been
called into question by the Supreme Court's ruling in Iqbal”).
Thus, courts in the Second Circuit are divided as to whether
the five categories announced in Colon may still be used as
bases for liability under § 1983. Compare, e.g., Hollins v.
City of New York, No. 10-CV-1650, 2014 WL 836950, at *13
(S.D.N.Y. Mar. 3, 2014) (holding that only the first and part
of the third categories in Colon survive Iqbal ), and Bellamy
v. Mount Vernon Hosp., No. 07-CV-1801, 2009 WL 1835939,
at *6 (S.D.N.Y. June 26, 2009) (same), aff'd, 387 Fed.Appx.
55 (2d Cir. 2010), with Marom v. City of New York, No. 15-
CV-2017, 2016 WL 916424, at *15 (S.D.N.Y. Mar. 7, 2016)
(“The holding in Iqbal does not stand for the proposition
that a supervisor can never be found personally liable
for a constitutional deprivation on a showing that he was
‘grossly negligent’ or ‘deliberately indifferent.’ ”), partial
reconsideration granted, 2016 WL 5900217 (S.D.N.Y. July
29, 2016), and Sash v. United States, 674 F.Supp.2d 531,
544 (S.D.N.Y. 2009) (“Where the constitutional claim does
not require a showing of discriminatory intent, but instead
relies on the unreasonable conduct or deliberate indifference
standards of the Fourth and Eighth Amendments, the personal
involvement analysis set forth in Colon v. Coughlin may
still apply.”), and Delgado v. Bezio, No. 09-CV-6899, 2011
WL 1842294, at *9 (S.D.N.Y. May 9, 2011) (holding that
if “the claim does not require a showing of discriminatory
intent, the Colon analysis should still apply, insofar as it is
consistent with the particular constitutional provision alleged
to have been violated” (internal quotation marks omitted)).
Some courts have simply concluded that, in the absence
of Second Circuit precedent suggesting otherwise, they will
continue to apply the Colon factors. See, e.g., Demeo v.
Koenigsmann, No. 11-CV-7099, 2017 WL 2937619, at *7
n.10 (S.D.N.Y. July 7, 2017) (“Although the Second Circuit
had acknowledged that it was an open issue whether all
of the types of personal involvement outlined above (the
‘Colon factors’) survive Iqbal, it appears that they do, as
demonstrated by ... recent Second Circuit opinions ... that
continue to cite the Colon factors.” (third italics added)
(citations omitted)); Tolliver v. Skinner, No. 12-CV-971, 2017
WL 1017649, at *4 (S.D.N.Y. Mar. 13, 2017) (“[A] plaintiff
may establish such personal involvement by making any one
of five showings (the ‘Colon factors’), including by showing
that the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong. This
remains the law in [the Second] Circuit, absent a Circuit
decision otherwise.” (citation and internal quotation marks
omitted)). On balance, “[t]he majority of the district courts ...
have held that, absent any contrary directive from the Second
Circuit, all five Colon factors survive where the constitutional
violation at issue does not require a showing of discriminatory
intent.” El–Hanafi v. United States, No. 13-CV-2072, 2015
WL 72804, at *13 (S.D.N.Y. Jan. 6, 2015) (alteration and
internal quotation marks omitted). This Court has already
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expressed its agreement with those cases holding that all five
categories under Colon are still valid unless and until the
Second Circuit holds otherwise, see Lebron v. Mrzyglod, No.
14-CV-10290, 2017 WL 365493, at *4–5 (S.D.N.Y. Jan. 24,
2017), and so it will do so here.
*7 As Defendants note, the sole allegations with respect
to Commissioner Annucci and Superintendent Griffin are
that they each “deprived Plaintiff of his federally protected
rights,” (Compl. ¶¶ 4, 8), that “Superintendent Griffin failed
to render a decision on ... Plaintiff['s]... grievance within
21 days,” (id. ¶ 17), that Commissioner Annucci “refused
to reply to Plaintiff['s] ... letter” regarding the denial of
attendance at religious events, (id. ¶ 36), and that both
Defendants “have allowed the [u]nconstitutional DOCCS
policy of refusing to treat Shia Muslim inmates equal to other
religious sub[-]groups that DOCCS currently recognize[s] to
continue,” (id. ¶ 50).
“[I]t is well-established that an allegation that an official
ignored a prisoner's letter of protest and request for an
investigation of allegations made therein is insufficient to
hold that official liable for the alleged violations.” Greenwaldt
v. Coughlin, No. 93-CV-6551, 1995 WL 232736, at *4
(S.D.N.Y. Apr. 19, 1995); accord Rivera v. Bloomberg,
Nos. 11–CV–629, 11–CV–4325, 2012 WL 3655830, at
*6 (S.D.N.Y. Aug. 27, 2012) (“Even if the [c]omplaints
could be read to suggest that Commissioner Schriro
failed to act, a prisoner's allegation that a supervisory
official failed to respond to a grievance is insufficient to
establish that the official exhibited deliberate indifference
by failing to act on information indicating that the violation
was occurring.” (alterations and internal quotation marks
omitted)); Ward v. LeClaire, No. 07-CV-6145, 2008 WL
3851831, at *3 (W.D.N.Y. Aug. 14, 2008) (“Although [the]
[p]laintiff further alleges that he sent [the defendant] letters
about lack of enforcement of [a facility] policy and that
[certain defendants] did not respond to his many written
complaints, the [c]ourt finds that such allegations, accepted
as true, do not constitute personal involvement for purposes
of § 1983 liability.” (citations omitted)); Rivera v. Goord,
119 F.Supp.2d 327, 344 (S.D.N.Y. 2000) (finding allegations
that an inmate wrote to prison officials and was ignored
insufficient to hold those officials liable under § 1983);
see also Woodward v. Perez, No. 12-CV-8671, 2014 WL
4276416, at *8 (S.D.N.Y. Aug. 29, 2014) (“It is well-
established that a supervisory defendant's receipt of a single
letter identifying an alleged wrong is insufficient for liability
under [§] 1983.”); Scarbrough v. Evans, No. 09-CV-850,
2010 WL 3730897, at *9 (N.D.N.Y. Aug. 10, 2010) (“The
allegation that the superintendent ignored [the] plaintiff's
letter, even if true, is nonetheless insufficient without more
to establish the requisite personal involvement on his part in
the constitutional violations alleged.”); Watson v. McGinnis,
964 F.Supp. 127, 130 (S.D.N.Y. 1997) (“The law is clear
that allegations that an official ignored a prisoner's letter
are insufficient to establish liability.” (citations omitted)).
Indeed, “if mere receipt of a letter or similar complaint were
enough, without more, to constitute personal involvement,
it would result in liability merely for being a supervisor,
which is contrary to the black-letter law that § 1983 does not
impose respondeat superior liability.” Walker v. Pataro, No.
99-CV-4607, 2002 WL 664040, at *12 (S.D.N.Y. Apr. 23,
2002) (report and recommendation) (italics omitted); see also
Dean v. Lantz, No. 08-CV-749, 2009 WL 2151173, at *6 (D.
Conn. Jul. 17, 2009) (“[T]he fact that a supervisory official
ignored a prisoner's letter of protest or referred the letter to
other officials for response does not establish the requisite
personal involvement of the supervisory official.”); Thomas
v. Coombe, No. 95-CV-10342, 1998 WL 391143, at *6
(S.D.N.Y. July 13, 1998) (finding that ignoring a letter from
an inmate is insufficient to establish personal involvement). 4
*8 Nor are Defendants liable as a result of the supervisory
nature of their positions. “[M]ere ‘linkage in the prison chain
of command’ is insufficient to implicate a state commissioner
of corrections or a prison superintendent in a § 1983 claim.”
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003)
(quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985));
see also Colon, 58 F.3d at 874 (“The bare fact that [the
defendant] occupies a high position in the New York prison
hierarchy is insufficient to sustain [a plaintiff's] claim.”).
Here, Plaintiff alleges that Commissioner Annucci and
Superintendent Griffin did not correct a policy of unequal
treatment of inmates based on their religion, but he does
not claim that these Defendants participated in the alleged
deprivation. Plaintiff's theory of liability appears to be
grounded in the mere fact that Defendants were in charge
of the prison. Such conclusory allegations are insufficient to
sustain a claim. See Alsaifullah, 2013 WL 3972514, at *17
(“[The [p]laintiff fails to allege that [the superintendent] was
aware of such alleged policy and, accordingly, [the p]laintiff's
conclusory allegations are insufficient to demonstrate the
personal involvement of [the superintendent].”); Miner
v. Goord, 646 F.Supp.2d 319, 326 (N.D.N.Y. 2009)
(dismissing the plaintiff's “claims that [the superintendent]
created a policy which permitted unconstitutional practices
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to occur” because “[t]hese conclusory allegations are
insufficient to show the personal involvement of [the
superintendent]”). Accordingly, Plaintiff's claims against
Commissioner Annucci and Superintendent Griffin are
dismissed. 5
3. Denial of Attendance at Religious Events
Defendants contend that the failure to allow Plaintiff to attend
two Shi'ite holy day events does “not represent a substantial
burden on Plaintiff's free exercise of religion.” (Defs.' Mem.
10.)
“Prisoners have long been understood to retain some
measure of the constitutional protection afforded by the
First Amendment's Free Exercise Clause,” Ford v. McGinnis,
352 F.3d 582, 588 (2d Cir. 2003), which includes the
right to participate in religious services, see Salahuddin v.
Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). A prisoner's
First Amendment rights, however, are “[b]alanced against...
the interests of prison officials charged with complex duties
arising from the administration of the penal system.” Ford,
352 F.3d at 588 (internal quotation marks omitted); see also
Weathers v. Rock, No. 12-CV-1301, 2014 WL 4810309,
at *4 (N.D.N.Y. Sept. 23, 2014) (explaining that the right
of inmates to freely exercise a chosen religion “is not
limitless, and may be subject to restrictions relating to
legitimate penological concerns”). Accordingly, a prisoner's
free exercise claims are “judged under a reasonableness
test less restrictive than that ordinarily applied to alleged
infringements of fundamental constitutional rights.” Ford,
352 F.3d at 588 (internal quotation marks omitted).
“To be entitled to protection under the free exercise clause
of the First Amendment, a prisoner must make a threshold
showing that the disputed conduct substantially burdened
his sincerely held religious beliefs.” Washington v. Chaboty,
No. 09-CV-9199, 2015 WL 1439348, at *9 (S.D.N.Y. Mar.
30, 2015) (alteration and internal quotation marks omitted);
see also Salahuddin v. Goord, 467 F.3d 263, 274–75 (2d
Cir. 2006) (“The prisoner must show at the threshold that
the disputed conduct substantially burdens his sincerely held
religious beliefs.”); Shapiro v. Cmty. First Sen's., Inc., No.
11-CV-4061, 2014 WL 1276479, at *10 (E.D.N.Y. Mar. 27,
2014) (“At the motion to dismiss stage, a complaint must
assert sufficient allegations necessary to establish that [the]
plaintiff's claim is based upon a sincerely held religious
belief.” (alteration and internal quotation marks omitted)). 6
In determining whether a belief is “sincere,” “an individual ...
need only demonstrate that the beliefs professed are sincerely
held and in the individual's own scheme of things, religious.”
Ford, 352 F.3d at 588 (alteration and internal quotation marks
omitted). Moreover, “[a] substantial burden on religious
exercise exists where the state puts substantial pressure on an
adherent to modify his behavior and to violate his beliefs.”
Rossi v. Fishcer, No. 13-CV-3167, 2015 WL 769551, at *7
(S.D.N.Y. Feb. 24, 2015) (internal quotation marks omitted).
The Second Circuit has further specified that “[t]he relevant
question in determining whether [the plaintiff's] religious
beliefs were substantially burdened is whether participation
in the [religious activity], in particular, is considered central
or important to [the plaintiff's religious] practice.” Ford, 352
F.3d at 593–94. “Once [a] plaintiff establishes this burden,
the defendants then bear the relatively limited burden of
identifying the legitimate penological interests that justify
the impinging conduct.” Smith v. Perlman, No. 11-CV-20,
2012 WL 929848, at *7 (N.D.N.Y. Mar. 19, 2012) (alteration
and internal quotation marks omitted). The burden then shifts
to the inmate “to show that these articulated concerns were
irrational.” Salahuddin v. Goord, 467 F.3d at 275 (alteration
and internal quotation marks omitted).
*9 Defendants do not contest the sincerity of Plaintiff's
religious beliefs. The Court, therefore, will assume for
the purpose of resolving the instant Motion that Plaintiff's
religious beliefs are sincerely held. The Court thus turns to
whether Plaintiff has adequately alleged that his ability to
exercise his religious beliefs was substantially burdened by
Defendants' conduct.
“In the Second Circuit, courts have held that preclusion
from attending two religious services is not, without more, a
‘substantial burden’ on a plaintiff's free exercise of religion.”
Lopez v. Cipolini, 136 F.Supp.3d 570, 588 (S.D.N.Y. 2015);
see also Jean–Laurent v. Los, No. 12–CV–132, 2015 WL
1015383, at *6 (W.D.N.Y. Mar. 9, 2015) (noting “[c]ourts
within the Second Circuit have consistently held that missing
two religious services does not pose a substantial burden on an
inmate's religion” and collecting cases); Blalock v. Jacobsen,
No. 13-CV-8332, 2014 WL 5324326, at *7 (S.D.N.Y. Oct.
20, 2014) (“Courts in [the Second] Circuit, however, have
held that the conduct [the plaintiff] challenges—the denial
of two religious services—does not substantially burden an
inmate's right to religious observation.”); Shapiro, 2014 WL
1276479, at *11 (“[N]ot permitting a prisoner to attend two
religious services is a de minimis, or insubstantial, burden on
an inmate's ability to freely exercise his religion.” (italics and
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Allah v. Annucci, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 9
internal quotation marks omitted)). Here, however, Plaintiff
repeatedly refers to Ghadir Khum and Mubahila as “Holy
Days,” and specifically alleges that the events are “unique
to Shi'ism.” (Compl. ¶ 32; see also id. ¶¶ 35, 37.) These
allegations are made in conjunction with claims that Plaintiff
suffered from additional deprivations, including the denial
of a Shia Muslim Chaplain to lead Juma'ah service, which
he specifically avers is “fundamental to the practice of his
religion,” and the inability to hold fundraisers to purchase
Shia educational material. (See id. ¶¶ 29, 41–42.) 7
Thus, construing Plaintiff's Complaint liberally and drawing
all reasonable inferences from the factual allegations in
Plaintiff's favor, the Court finds that Plaintiff has adequately
pleaded that the religious events were “ ‘central or important’
to [his] faith,” Rossi, 2015 WL 769551, at *8 (quoting Ford,
352 F.3d at 593–94); see also Smith, 2012 WL 929848, at
*8 (“At this stage, the Court finds that plaintiff has alleged
sufficient facts to establish that missing three consecutive
Jum[a]'ah services while housed in keeplock substantially
burdens his right to attend congregate religious services.”).
In conjunction, these allegations sufficiently state a plausible
claim for a First Amendment violation. Accordingly, the
Court denies Defendants' Motion To Dismiss on this basis. 8
III. Conclusion
*10 For the foregoing reasons, Defendants' Motion To
Dismiss is granted as to all claims against Commissioner
Annucci and Superintendent Griffin and denied as to
Plaintiff's claims regarding his denial of attendance at Ghadir
Khum and Mubahila as against Morris and Collado.
In light of Plaintiff's pro se status, and because this is the
first adjudication of Plaintiff's claims on the merits, those
claims that are dismissed are dismissed without prejudice.
If Plaintiff wishes to file an Amended Complaint alleging
additional facts and otherwise addressing the deficiencies
identified above, Plaintiff must do so within 30 days of the
date of this Opinion & Order. The failure to do so may result
in the dismissal of Plaintiff's claims with prejudice. If Plaintiff
files no Amended Complaint, the Court will assume Plaintiff
intends only to proceed with the claims regarding failure to
provide equal accommodations to Shi'ite Muslims and state
law claims against Defendants Morris and Collado.
The Clerk of Court is respectfully requested to terminate the
pending Motion, (see Dkt. No. 23), and mail a copy of this
Opinion & Order to Plaintiff at the address listed on the
docket. SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 3972517
Footnotes
1 In a section titled “Background of Shia and Sunni Differences,” Plaintiff details his version of the history of
and distinctions between Shia and Sunni Islam. (See Compl. ¶¶ 23–34.)
2 While Defendants' letter informs the Court of the rendering of a decision on a single grievance, Defendants
acknowledge that as of the date of Plaintiff's Complaint, he had two grievances pending before CORC. (See
Defs.' Mem. 3–4 (“Plaintiff ultimately appealed two grievances to [CORC]: grievance number GH–81011–15,
regarding denial of attendance at religious events, and GH–81171–15, regarding denial of religious practice
as a Shi'ite Muslim.”).) It is unclear from Defendants' letter which of the two grievances is now administratively
exhausted.
3 Should the case proceed to summary judgment, the Court may revisit this issue.
4 “Courts in [the Second] Circuit are divided, however, regarding whether a supervisor who reviews and
ultimately denies a grievance can be considered personally involved in the unconstitutional act underlying the
grievance.” Garcia v. Watts, No. 08-CV-7778, 2009 WL 2777085, at *15 (S.D.N.Y. Sept. 1, 2009) (collecting
cases). “Some courts have attempted to harmonize this conflict by applying the same standard to both
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letters and grievances, i.e. finding personal involvement only when the supervisor's response is detailed and
specific.” Id. at *16 (italics omitted) (collecting cases). Still “[o]ther courts in [the Second] Circuit have applied a
different standard and found personal involvement only when the grievance alleges an ongoing constitutional
violation that the supervisory official who reviews the grievance can remedy directly.” Id. (internal quotation
marks omitted) (collecting cases).
In the instant case, there is no allegation that Superintendent Griffin actually reviewed Plaintiff's grievance
and Plaintiff does not allege that he sent any letters to Superintendent Griffin directly. (See Compl. ¶ 17
(“Superintendent Griffin failed to render a decision on ... Plaintiff['s] ... grievance within 21 days.”).) As to
Commissioner Annucci, Plaintiff's letter to him encloses a copy of Plaintiff's grievance and “request[s] that [the
Commissioner's] officer direct the Inmate Grievance Supervisor to log and acknowledge this grievance as well
as process the grievance in a timely fashion.” (Compl. Ex. H.) Plaintiff does not request that Commissioner
Annucci review the grievance or remedy the alleged violation. Indeed, Plaintiff's grievance was eventually
processed as requested.
5 Defendants do not move to dismiss Defendants Morris and Collado based on their lack of personal
involvement. (See generally Defs.' Mem.) However, should Plaintiff choose to amend his pleadings, he should
be careful to allege the personal involvement of all Defendants in the purported violations.
6 The Second Circuit recently explained that “[i]t has not been decided in [the Second] Circuit whether, to state
a claim under the First Amendment's Free Exercise Clause, a prisoner must show at the threshold that the
disputed conduct substantially burdens his sincerely held religious beliefs.” Holland v. Goord, 758 F.3d 215,
220 (2d Cir. 2014). The Second Circuit chose not to confront this question—or rather, not to alter the previous
assumption that the substantial burden test is a threshold question. Id. at 221. Accordingly, this Court “will
follow the analysis in Holland and proceed to consider the First Amendment analysis, assuming that the
substantial burden test is still valid.” Weathers, 2014 WL 4810309, at *4; see also Williams v. Fisher, No. 11-
CV-379, 2015 WL 1137644, at *16 (N.D.N.Y. Mar. 11, 2015) (same).
7 Plaintiff further avers that without a Shia leader, “the congregate prayer is invalid,” suggesting that the practice
of having a Shia leader is central to his religion. (Compl. ¶ 30.) Additionally, while the Supreme Court has
noted that “Jum[a]'ah is commanded by the Koran and must be held every Friday after the sun reaches its
zenith and before the Asr, or afternoon prayer,” O'Lone v. Estate of Shabazz, 482 U.S. 342, 345, 107 S.Ct.
2400, 96 L.Ed.2d 282 (1987), the Court notes that the test is subjective and requires the plaintiff to allege that
the religious event or practice is central or important to his practice of his faith. See Rossi, 2015 WL 769551,
at *7 (“[The plaintiff] must show that it burdens a religious practice that is central or important to his practice
of religion.” (internal quotation marks omitted)).
8 As Defendants identify, Plaintiff filed grievances related to the denial of attendance at the religious events
of Ghadir Khum and Mubahila. (See Compl. ¶ 14 (“On October 13, 2015, Plaintiff... filed a grievance
regarding his being denied his right to attend the Shi'ite religious event[s] of Ghadir Khum ... and Mubahila.”).)
While Plaintiff's letters to Collado and Commissioner Annucci referenced the Muslim holy event of Ashura,
(see id. 35, 37–38), Plaintiff does not allege that he filed a grievance in connection with his being denied
attendance at Ashura. Accordingly, any claims with respect to Plaintiff's attendance at Ashura have not been
administratively exhausted.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Banyan v. Sikorski, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 1765869
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jonathan C. BANYAN, Plaintiff,
v.
Police Officer Craig SIKORSKI, Police Officer
Joseph Tennariello, Lieutenant Ian Rule,
Sergeant John Becerra, ESU Officer Paul
Brauer, and the City of New York, Defendants.
Case No. 1:17-cv-04942 (JLR)
|
Signed February 3, 2023
Attorneys and Law Firms
Matthew John Reynolds, Huth Reynolds LLP, Chesterfield,
VA, Joshua Luke Rushing, Huth Reynolds LLP, Chappaqua,
NY, Karl Huth, Huth Reynolds LLP, Huntington, NY, Perry
M. Amsellem, Pryor Cashman LLP, New York, NY, for
Plaintiff.
Joseph Rizza, Nicolette Pellegrino, New York City Law
Department, New York, NY, for Defendants Police Officer
Craig Sikorski, Police Officer Joseph Tennariello, Lieutenant
Ian Rule, Sergeant John Becerra, ESU Officer Paul Brauer.
Joseph Rizza, Kavin Suresh Thadani, Nicolette Pellegrino,
New York City Law Department, New York, NY, for
Defendant The City of New York.
MEMORANDUM OPINION AND ORDER
JENNIFER L. ROCHON, United States District Judge:
*1 On June 29, 2017, Plaintiff, then proceeding pro se, filed
the original complaint in this action. ECF No. 1. The Court
assumes the parties' familiarity with the facts underlying
that complaint, the lengthy procedural history and stay in
this action, and Judge Liman's March 26, 2021 Opinion and
Order regarding summary judgment. ECF No. 181; see also
Banyan v. Sikorski, No. 17-cv-4942 (LJL), 2021 WL 1163653
(S.D.N.Y. Mar. 26, 2021). Now before the Court is Plaintiff's
motion for leave to amend his complaint pursuant to Federal
Rule of Civil Procedure 15(a)(1), filed on December 16,
2022 by his appointed counsel (ECF No. 232; ECF No. 233
(“Br.”)), Defendants' opposition to that motion (ECF No. 236
(“Opp.”)), and Plaintiff's reply (ECF No. 237 (“Reply”)).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 15, “[t]he court should
freely give leave [to amend] when justice so requires.” Fed. R.
Civ. P. 15(a)(2). The Second Circuit has explained that this is
a “liberal” or “permissive standard ... [that] is consistent with
our strong preference for resolving disputes on the merits.”
Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC,
797 F.3d 160, 190 (2d Cir. 2015). Still, it is “within the
sound discretion of the district court to grant or deny leave
to amend.” Ebomwonyi v. Sea Shipping Line, 473 F. Supp.
3d 338, 349 (S.D.N.Y. 2020). A “court may properly deny
leave to amend ... in cases of undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of the allowance
of the amendment, [or] futility of amendment ....” 7 W. 57th
St. Realty Co., LLC v. Citigroup, Inc., 314 F. Supp. 3d 497,
510 (S.D.N.Y. 2018) (citations omitted). “An amendment to
a pleading is futile if the proposed claim could not withstand
a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).”
Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.
2002).
DISCUSSION
Plaintiff's original complaint pleaded a claim for malicious
prosecution arising out of a criminal proceeding that was
brought for assault and resisting arrest. See ECF No. 1 at 2. At
the summary judgment stage, Judge Liman determined that
“[b]ecause Plaintiff's criminal trial is still ongoing, Plaintiff's
claim of malicious prosecution has not yet accrued.” Banyan,
2021 WL 1163653, at *5. Judge Liman went on to specifically
hold that “Plaintiff may replead his malicious prosecution
claim when and if the criminal case is resolved in his favor.”
Id.
The parties do not dispute that Plaintiff's criminal case has
since resolved in his favor. See Br. at 1 (noting that Plaintiff's
conviction was reversed and remanded, and later dismissed);
Opp. at 2. Nevertheless, Defendants argue that Plaintiff
should not be permitted to amend his complaint to include
a malicious prosecution claim against Officer Defendants
Becerra, Rule, or Tennariello because Plaintiff cannot state
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a claim against them. Opp. at 5. Defendants also argue that
Plaintiff cannot plead claims against Officer Becerra, because
he failed to adhere to New York's notice-of-claim statute. 1
Opp. at 6. Finally, Defendants argue that Plaintiff must redact
portions of his amended complaint that contain summaries of
confidential grand jury testimony. Opp. at 8.
*2 First, to prevail on a claim for malicious prosecution
under New York law, a plaintiff must establish that “(1)
the defendant either commenced or continued a criminal
proceeding against him; (2) that the proceeding terminated
in his favor; (3) that there was no probable cause for the
criminal proceeding; and (4) that the criminal proceeding was
instituted in actual malice.” Banyan, 2021 WL 1163653, at *4
(quoting Conway v. Village of Mount Kisco, 750 F.2d 205, 214
(2d Cir. 1984)). Defendants argue that Plaintiff cannot state
a claim for malicious prosecution against Officers Becerra,
Rule, or Tennariello because none of these officers “initiated”
the criminal proceeding against Plaintiff. See Opp. at 5.
Defendants argue that “initiation is established by the signing
of a criminal court complaint,” and because Plaintiff only
alleges that these officers testified against him or otherwise
contributed to his prosecution, he fails to state a claim. Id.
“To initiate a prosecution, a defendant must play an active role
in the prosecution, such as giving advice and encouragement
or importuning the authorities to act.” Rodriguez v. City
of New York, 590 F. Supp. 3d 518, 534 (E.D.N.Y. 2022).
Under New York law, courts have concluded that officers
“initiate” a criminal proceeding when a plaintiff can “show[ ]
that officers brought formal charges and had the person
arraigned, ... or filled out complaining and corroborating
affidavits, ... or swore to and signed a felony complaint.”
Llerando-Phipps v. City of New York, 390 F. Supp. 2d 372,
382-83 (S.D.N.Y. 2005) (citations omitted). While laypersons
cannot be said to have initiated an action by reporting a
crime, this standard does not apply to law enforcements
officers because otherwise they “would never be liable for
malicious prosecution.” Id. at 383. In addition, an officer may
be held liable for malicious prosecution when he “creates false
information likely to influence a jury's decision and forwards
that information to prosecutors ... [or] causes the prosecution
to initiate or continue criminal charges without disclosing
evidence that would negate probable cause[.]” Rodriguez, 590
F. Supp. 3d at 534 (citations omitted).
Plaintiff's proposed amended complaint states a claim for
malicious prosecution against Officers Becerra, Rule, and
Tennariello because Plaintiff's interactions with them, and
therefore the testimony of these Defendants and their fellow
officers, form the entire basis for the underlying criminal
proceeding. See ECF No. 233-2 (“Am. Compl.”) ¶¶ 4-12.
Plaintiff generally alleges that the criminal proceedings for
assault – which were reversed and later dismissed – were
brought against him even though those “assaults” occurred in
response to excessive force from the officers. Id. ¶¶ 11-12.
Plaintiff alleges the following specific acts on the part of
these officers: Officer Tennariello told Plaintiff he was under
arrest and “punched him in the head,” making Plaintiff fear
for his life (Am. Compl. ¶¶ 34-35); Officer Rule “performed
a pain-inducing compliance technique by rolling his baton
up and down” Plaintiff's Achilles tendon (id. ¶ 40); Officer
Rule falsely testified at the grand jury proceeding (id. ¶¶
48-51, 53); all officers falsely testified against Plaintiff at
his criminal trial, including by mischaracterizing the nature
of their interactions and stating Plaintiff was resisting arrest
(id. ¶¶ 55-61). These allegations are sufficient at the pleading
stage to state a claim for malicious prosecution because the
amended complaint alleges that these officers “initiated” the
criminal proceeding by “creat[ing] false information likely
to influence a jury's decision and forwards that information
to prosecutors ... [and] caus[ing] the prosecution to initiate
or continue criminal charges without disclosing evidence that
would negate probable cause[.]” Rodriguez, 590 F. Supp. 3d at
534 (citations omitted). The officers' statements were integral
to the criminal prosecution of the case, and their testimony
formed the basis for the assault claims both before the grand
jury and at trial. This is sufficient to state a claim for malicious
prosecution. See Marshall v. Port Auth. of N.Y. & N.J., No. 19-
cv-2168, 2020 WL 5633155, at *6 (S.D.N.Y. Sept. 21, 2020)
(concluding that reasonable jury could find officers initiated
proceedings where one officer signed the complaint and both
officers testified that they spoke with prosecutors about the
arrest). Therefore, Plaintiff's amended complaint would not
be futile as to these Defendants.
*3 Finally, Defendants request that certain information in
the proposed amended complaint be redacted because they
contain sealed grand jury testimony. Opp. at 8. Plaintiff states
that he will “accede to the Court's wishes regarding any
redactions” of the grand jury testimony. Reply at 3 n.1. Given
this and in light of the fact that grand jury proceedings are
secret under N.Y. C.P.L. § 190.25(4), Plaintiff shall submit all
further filings with redactions to information from the grand
jury proceeding. To the extent there are any disputes about
the scope of the redactions, the parties shall meet and confer
before raising them with the Court.
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CONCLUSION
Accordingly, the motion to amend is GRANTED. Plaintiff
shall file his amended complaint within fourteen (14) days of
this Order.
All Citations
Not Reported in Fed. Supp., 2023 WL 1765869
Footnotes
1 Plaintiff concedes that Officer Becerra was not provided a notice of claim. Reply at 3 n.1. “The notice-of-claim
requirement applies to claims against City employees for conduct within the scope of their employment, ...
but ‘only if the [City] has a statutory obligation to indemnify such person.’ ” Palmer v. City of New York, 564 F.
Supp. 3d 221, 242 (E.D.N.Y. 2021) (quoting N.Y. Gen. Mun. L. § 50-e(1)(b)). “In light of that limitation, courts
disagree on whether a plaintiff must comply with the notice-of-claim requirement when bringing claims against
a municipal employee for intentional torts, including possibly false arrest, IIED, conversion, and assault and
battery.” Id. (collecting cases). The parties have provided very limited briefing on this issue. Therefore, the
Court declines to rule on this issue at this time, without prejudice to Defendants raising it in subsequent
motions if Officer Becerra is included as a Defendant.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:25-cv-00719-DNH-ML Document 11 Filed 02/20/26 Page 87 of 417

Bell v. City of New York, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 11916696
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
George BELL, Plaintiff,
v.
CITY OF NEW YORK, Louis Pia, Richard Sica,
Paul Heider, Frank Bovino, Maryann Bubelnik,
Dennis Brooks, William Nevins, and Nancy
Cardamone, in her capacity as administratix of
the Estate of Andrew Cardamone, Defendants.
22-CV-3251 (DG)(PK)
|
Signed September 1, 2023
Attorneys and Law Firms
David B. Berman, Debra L. Greenberger, Nicholas Bourland,
Richard D. Emery, Earl S. Ward, Emery Celli Brinckerhoff
Abady Ward & Maazel, LLP, New York, NY, Scott Stevenson,
Aon, Southampton, NY, for Plaintiff.
Mark David Zuckerman, Niki Renee Slattery, The City
of New York Law Department, Special Federal Litigation
Division, New York, NY, for Defendants City of New York,
Louis Pia, Richard Sica, Paul Heider, Frank Bovino, Maryann
Bubelnick, Dennis Brooks, Lt. William Nevins.
Mark David Zuckerman, NYC Law Department, New York,
NY, for Defendant Nancy Cardamone.
REPORT AND RECOMMENDATION
Peggy Kuo, United States Magistrate Judge:
*1 Plaintiff George Bell (“Plaintiff” or “Bell”) was
convicted of murder in the first degree in 1999 and
sentenced to life in prison without the possibility of parole.
In March 2021, his conviction was vacated, and the case
against him was dismissed. Plaintiff has now brought this
action against the City of New York (the “City”) and
New York Police Department (“NYPD”) Officers Louis
Pia (“Pia”), Richard Sica (“Sica”), Paul Heider (“Heider”),
Frank Bovino (“Bovino”), Maryann Bubelnik (“Bubelnik”),
Dennis Brooks (“Brooks”), and William Nevins (“Nevins”),
and Nancy Cardamone, in her capacity as administratrix of
the Estate of Officer Andrew Cardamone (“Cardamone”)
(collectively, “Individual Defendants,” and together with the
City, “Defendants”), alleging violations of 42 U.S.C. § 1983
and New York state common law relating to his wrongful
conviction. (See Am. Compl., Dkt. 52.)
Defendants have filed a partial motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6), requesting
dismissal of the federal and state malicious prosecutions
claims (in the Third and Fifth Claims) against Defendants
Pia and Sica, the federal fair trial claims (in the Second
Claim) against Defendants Nevins and Heider, and the
municipal liability claims against Defendant City of New
York (the Fourth Claim). (“Motion,” Dkt. 70; Defendants’
Memorandum of Law in Support of Motion to Dismiss
(“Defs. Mem.”), Dkt. 72.)
The Honorable Diane Gujarati referred the Motion to me for
a report and recommendation. For the reasons stated herein, I
respectfully recommend that the Motion be denied.
BACKGROUND
The following facts are taken from the Amended Complaint
(Am. Compl., Dkt. 52) and assumed to be true for purposes
of the Motion.
I. The Murders and Plaintiff's Arrest
On December 21, 1996, on Astoria Boulevard in Queens,
Mike Epstein, the owner of a check-cashing store, and Charles
Davis, an off-duty NYPD officer working as his security
guard, were shot and killed in a failed robbery attempt at the
store (the “Murders”). (Am. Compl. ¶ 42.)
Then-Mayor Rudolph Giuliani and top law enforcement
officials “began exerting intense pressure” to solve the crime
before Christmas, and the NYPD started a massive effort
to identify and arrest the perpetrators. (Id. ¶¶ 43-44.) Initial
attention focused on a local gang who had been involved in
similar armed robberies in the area. (Id. ¶ 45.) The police
placed wanted signs around the neighborhood stating that
the suspects “were involved in a past robbery at a check
cashing business in [Queens]” and describing the suspects as
“three black men ranging from 5’11” and 6’3” in height and
weighing 180, 185 and 190 pounds, respectively.” (Id. ¶ 47.)
The NYPD issued an “all points bulletin” which identified
the wanted men as “suspects in a robbery of another check
cashing store nearby” and stated that “two of the above
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Bell v. City of New York, Not Reported in Fed. Supp. (2023)
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individuals may be connected to the murder of the police
officer on 12/21/96 in 115PCT” (“All Points Bulletin”). (Id.
¶ 49.) The New York Daily News reported that investigators
believed that the suspects were members of a local gang that
had committed other armed robberies in the area, including
two armed robberies of check cashing businesses, one of
which occurred two days before the Murders. (Id. ¶¶ 45-46.)
*2 On December 23, 1996, the NYPD arrested John Mark
Bigweh (“Bigweh”) for selling marijuana. (Id. ¶ 53.) Bigweh,
who was on probation for robbery and assault charges, was
interrogated over the next two days. (Id. ¶¶ 54, 56.) He
initially told the police that he had been partying with Bell
and Gary Johnson (“Johnson”) on December 20 and 21, and
they later approached him on the street about going with them
to commit a robbery, along with a person named “Zebedia,”
but Bigweh declined to go with them. (Id. ¶ 59.) NYPD
Detective Michael Falciano then drove Bigweh around in a
van for six hours, after which Bigweh provided a second
statement, admitting that he participated in the robbery with
Bell, Johnson, a person named “Roti,” and a driver named
“Jason.” (Id. ¶¶ 60-61.) He identified Bell as the shooter. (Id.
¶ 56.)
On the basis of Bigweh's statement, NYPD officers instructed
Bigweh to call Bell (and Johnson, as discussed below)
and inform him that Bell's friend Mendez Collier had been
arrested and was at the station. (Id. ¶ 65.) Bell, who was sick
at home and had just taken Nyquil, left his home shortly after
midnight on December 25 and went to the station. (Id. ¶ 66.)
Bell did not match the description of the suspects the police
had previously described. He was 19 years old, had no
criminal record, had “limited mental capacity,” and worked
as a stock boy at Old Navy. (Id. ¶¶ 36-38.)
Upon arrival at the 115 th Precinct, Bell was arrested and
transported to the 109 th Precinct for interrogation. (Id. ¶
67-68.) When Bell's mother later came to look for him at the
115 th Precinct, she was informed that the police did not know
of his whereabouts. (Id. ¶ 69.)
At the 109 th Precinct, Bell was handcuffed to a chair and told
that he was “in big trouble.” (Id. ¶ 77.) After waiting there, he
was brought to an interrogation room with Pia and Sica. (Id. ¶
78.) The two detectives did not read Bell his Miranda rights,
but instead asked him to sign a paper waiving his rights.
Then they accused him of being involved in the Murders and
interrogated him about his role in them. (Id. ¶¶ 80-82.)
Bell maintained that he was not involved in the Murders and
did not know what the officers were talking about. (Id. ¶¶
83-87.) In response to his denials, the interrogation became
violent: Pia pressed a hockey stick against Bell's neck and told
him he could “use [his] head as a hockey puck,” “yanked” Bell
by his braids, tearing hair from his scalp, repeatedly knocked
him to the floor, and told Bell he would “put him in the fucking
hospital” unless Bell told him what he needed to know. (Id.
¶¶ 88-93.) Sica sat nearby, did not intervene, and encouraged
Bell to comply with Pia's demands. (Id. ¶¶ 94-96.) When
Bell asked if what he was experiencing was police brutality,
Sica responded “No, this is how we get things done.” (Id. ¶¶
97-98.) Pia and Sica “screamed” at Plaintiff that he would
never see his family again and that he would “get the electric
chair” unless he confessed to the Murders. (Id. ¶¶ 99-100.)
During the interrogation, Bell asked to call his mother and
an attorney but was told by Pia that “cop killers don't get
attorneys.” (Id. ¶ 101.) Bell was terrified and “began repeating
facts that Detective Pia [who had read Bigweh's statement] ...
fed to him,” telling Pia “ ‘what he wanted to know’ to make
the abuse and threats stop.” (Id. ¶¶ 102-03.)
Approximately nine and a half hours after his arrest, Bell
signed a statement, which he did not read, written by Pia,
that implicated him in the Murders. (Id. ¶ 104.) After being
allowed to sleep in a holding cell for three hours, Bell was
brought back to the interrogation room around 12:22 p.m.,
where he was asked to repeat his false confession on video to
Assistant District Attorney (“ADA”) Peter Reese (“Reese”)
while Pia and Sica were also in the room. (Id. ¶¶ 108-111.)
In the video, Bell repeated his confession, stated that he was
“being framed,” and, after describing his involvement, asked
Pia if he “did good.” (Id. ¶¶ 113-16.) Reese told Bell that he
was going to show him a photo of an individual to identify, to
which Bell responded, “I know, you showed me.” (Id. ¶ 117.)
Bell asked if he could speak to Reese alone, but his request
was denied. (Id. ¶ 118-19.)
*3 Plaintiff alleges that after his interrogation and
confession, Pia and Sica realized that they had coerced him
into implicating Mendez Collier in the crime, who they did
not believe was involved. In order to correct the error, Sica
created a falsified “DD5” report, in which he stated that after
the confession, Pia and Sica had a “brief conversation” with
Bell in his cell, and that Bell said he falsely accused Mendez
Collier because Bigweh was close to “Roti” and Bell “was
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Bell v. City of New York, Not Reported in Fed. Supp. (2023)
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afraid that he would be hurt in jail” if he implicated Bigweh.
(Id. ¶¶ 121-23.) Bell denies ever saying this. (Id. ¶ 124.) Pia
and Sica provided Bell's false confession and the fabricated
DD5 to prosecutors and, in turn, the grand jury, which issued
an indictment against Bell. (Id. ¶¶ 126, 310.)
Gary Johnson was interrogated by Defendants Cardamone
and Brooks. (Id. ¶ 141-147.) Johnson told them that he had
driven to the check-cashing store with someone he did not
really know named “Jason” and “two of Jason's friends that
[he] didn't know.” (Id. ¶ 145.) He claimed that Bell was
already at the check-cashing store when they arrived. (Id. ¶
146.) Johnson stated that he had passed out after a night of
partying, was “still drunk” when he woke up, and that “he did
not even remember the crime but had ‘seen it on the news’
but he ‘didn't think [he] was involved in it because [he] woke
up and it was just another day for [him].’ ” (Id. ¶¶ 144, 146
(alterations in the original).) Johnson was also arrested and
charged with the Murders.
Rohan Bolt, who was identified as the “Roti” in Bigweh and
Bell's confessions, was also arrested and charged with the
Murders. (Id. ¶¶ 135, 298.)
II. Additional Investigation into the Murders – Jason
Ligon's Statement and Alibi
On May 30, 1997, Jason Ligon (“Ligon”) was arrested and,
after five hours in custody and interrogation by Defendants
Bubelnik and Bovino, he confessed to being involved in the
Murders. (Id. ¶ 157.) He stated that he was the driver, that
Bell was the shooter, and that Bolt, now identified as the
person whom Bigweh and Bell called “Roti,” put the robbery
plan together. (Id. ¶¶ 135, 162.) Bubelnik had been present at
Bigweh's confession, and Plaintiff alleges that Bubelnik and
Bovino worked closely with Pia and Sica to “feed the same
facts” as those given to Bell to coerce a confession. (Id. ¶¶
158-59.) Ligon's written and video confessions “mirrored”
those given by Bell and provided more detail. (Id. ¶ 164.)
However, Ligon's counsel hired a private investigator who
determined that Ligon was in Washington, D.C. at the time
of the murders and that he was not involved. (Id. ¶ 165.)
This alibi information was given to the Queens District
Attorney's Office (“QDAO”), who confirmed its accuracy.
(Id. ¶¶ 166-67.) Ligon later told investigators that police
officers gave him alcohol during the interrogation. He has
since recanted his confession and stated that he was not
present at the robbery and murders. (Id. ¶¶ 170, 214.)
Plaintiff alleges that the QDAO was aware that Ligon was
not involved in the murders and had an alibi, but refused to
dismiss the charges against Ligon until after Bell, Bolt, and
Johnson were tried. (Am. Comp. ¶ 171.) Neither Bell nor his
counsel were informed by Bubelnik, Bovino, or the QDAO
that Ligon's confession, which implicated Bell, was false. (Id.
¶ 176-77.)
III. Investigations into the Speedstick Gang
On May 9, 1997, two off-duty police officers were attacked
delivering payroll to a business in Flushing, Queens. (Id. ¶
200.) Aaron Boone (“Boone”) and Robert Majors (“Majors”),
who were associated with the “Speedstick” Gang linked to
armed robberies in the area (id. ¶ 270), were arrested in
connection with the crime. (Id. ¶¶ 200-01.) The Daily News
stated that, based on information provided by the NYPD, “
‘Boone and Majors are suspects in other payroll heists in
Queens,’ ” including the Murders. (Id. ¶¶ 202-03.) Defendant
Heider signed a felony complaint against Boone and Majors
on May 10, 1997. (Id. ¶ 204.)
*4 In a DD5 dated May 16, 1997, Heider memorialized an
interview of “Witness #1” who provided a detailed account of
the activities “ ‘of a Robbery Ring that was run by the Twins
Aaron and Ammon Boone.’ ” (“DD5 288”) (Id. ¶ 256.) DD5
288 provided background on the robbery gang's operations
and summaries of at least seven armed robberies that the
group carried out in 1996 and 1997. (Id. ¶ 257.) Witness #1
identified Jamal Clark as a member of the robbery gang. He
also stated that he had personally participated with Clark,
Boone or Ammon Boone in several of the robberies. (Id. ¶
258.) Witness #1 gave information that directly implicated
this robbery gang in the Murders. As set forth in DD5 288,
[Witness #1] stated that he was told by Jamal Clark that
the group robbed a check cashing store on Astoria Blvd.
This job was set up by the [Boone] Twins and that Jamal
Clark was outside and that something went bad. They did
not get any money. Witness #1 stated that this was a phone
call and that Jamal Clark was down south at the club with
the Twins after this robbery. Jamal told him that he was
upset because he was doing a lot of jobs also in NY and
down south and that he was not getting a fair share of the
money. He was concerned that if he left that the Twins may
kill him because they felt that he knew to[o] much and
could tell the police. Jamal told him he was leaving and he
did.
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*Witness #1 stated that Jamal Clark had a code name for
all the robberies that he participated in with the group. The
name is JASON.
(Id. ¶ 260 (alterations and emphasis in original).) Witness #1
also stated that another gang member told him that Boone
later shot Clark in the back of the head. (Id. ¶ 262.)
Jamal Clark had been killed in March 1997, and a DD5 dated
March 28, 1997 shows that information regarding Clark's
murder was given to Pia and Sica (“DD5 63”). (Id. ¶ 277.)
Boone was indicted for Clark's murder in January 1999. (Id.
¶ 264.)
DD5 288 and several other DD5s related to the NYPD's
investigation of Speedstick were turned over to the QDAO.
(Id. ¶ 272.) Detective Stacey Calantjis, one of the “lead
detectives” working on the Speedstick investigation, also
stated that he and other Speedstick investigators had shared
“everything” they learned about Speedstick with Pia, Sica,
and Defendant Nevins, who was Pia and Sica's boss. (Id. ¶¶
280-82.)
In notes taken in 1997, in a folder labelled “Speedstick,”
the QDAO's lead trial counsel at Bell's trial, ADA Charles
Testagrossa (“Testagrossa”), recorded that he was informed
that Heider “ ‘[b]elieve[d] Jamal was driver in Davis
homicide [the homicide for which Mr. Bell was convicted]’;
‘Jason was Jamal’; and ‘Speed Stick Bosses: Twin Boones.
Bernard Johnson. Jamal Clark “Jason.” ’ ” (Id. ¶¶ 226-27
(alterations in original).)
IV. Bell's Trial and Conviction
A. Requests for Brady Material
Prior to and during Bell's criminal trial in 1999, Bell's counsel
sought exculpatory material pursuant to Brady v. Maryland,
373 U.S. 83 (1963). On March 25, 1997, Bell's counsel
demanded production of Brady material, pointing specifically
to media coverage of the gang that was robbing check cashing
stores prior to Mr. Bell's arrest. (Am. Compl. ¶¶ 196-97.) On
April 7, 1997, ADA Neal Morse responded that the QDAO
was “ ‘not in possession of, or aware of, any Brady material.’
” (Id. ¶ 198.)
On October 1997, Bell's counsel filed a motion to compel
Brady material, expanding the request to include information
about Boone and Majors as suspects in the Murders and
information about Ligon. (Am. Compl. ¶¶ 206-07.) The
QDAO again represented that there was no Brady material,
specifically stating, “ ‘[T]here is no evidence pointing to any
uncharged person as being involved in the crimes charged.’
” (Id. ¶ 208.)
*5 On January 19, 1999, Bell's counsel again sought Brady
material regarding Ligon, and was again told that none
existed. (Id. ¶ 210-12.)
B. Evidence Presented at Bell's Trial
At Bell's trial in 1999, the QDAO introduced Bell's coerced
confession. The prosecution also offered testimony from
Gregory Turnbull and Reginald Gousse. (Id. ¶¶ 239-43.)
Turnbull testified that he saw suspects flee before sunrise
about 180 feet away, and refused to provide a sketch
because “it could have been anybody.” (Id. ¶ 240.) Gousse,
a jailhouse informant who received an “extraordinary favor”
from the QDAO of arguing for his immediate release so he
would not be detained by immigration authorities, “simply
restated information that was already available through public
news sources, including repeating errors that been publicly
reported.” (Id. ¶¶ 245-46.)
C. Unsuccessful Attempts to Introduce
Evidence Connecting Speedstick to the Murders
Bell's counsel sought to have Defendant Heider testify about
his investigation in the Boone and Majors case; however,
ADA Testagrossa represented to the court that there was “no
connection” between the crimes, and Heider's testimony was
precluded. (Id. ¶¶ 216-17.)
During the testimony of Defendant Nevins, Commanding
Officer of the Queens Homicide Squad, Bell's counsel asked
whether “ ‘[t]here was also a robbery of a check cashing
place that occurred in May of 1997,’ ” and whether “ ‘the
people that were arrested were Aaron Boone and Robert
[Majors].’ ” (Id. ¶ 218.) ADA Testagrossa objected on the
basis that there was no connection between the crimes, and the
objections were sustained. (Id. ¶¶ 218-19.) Likewise, when
counsel for Bell tried to ask “why guns recovered during the
investigation of the armored car robbery in 1997 were tested
against ballistics evidence at the check cashing store,” the
prosecutors “disclaimed knowledge of why these tests were
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conducted,” and called the two cases “ ‘completely different,’
” stating that there was “ ‘no connection’ ” between them. (Id.
¶¶ 220-21.)
Bell's lawyers were also unsuccessful in their attempt to call
the NYPD fingerprint expert to testify that he had compared
Jamal Clark's prints to those found at the scene of the Murder.
The prosecutor stated that fingerprints taken elsewhere were
“ ‘collateral and irrelevant.’ ” (Id. ¶ 223.)
D. Bell's Conviction and Subsequent Exoneration
Bell was convicted of murder in the first degree on June 11,
1999, and, on July 27, 1999, he was sentenced to life in prison
without the possibility of parole. (Id. ¶¶ 235, 253.)
Bell served more than 24 years in prison. (Id. ¶ 10.)
In March 2021, based on information from Bell's post-
conviction attorneys and after investigation by the QDAO's
Conviction Integrity Unit (“CIU”), the QDAO asked the state
court to vacate Bell's conviction. (Id. ¶¶ 11, 273, 303.) The
court granted the motion. See People v. Bell, 71 Misc. 3d 646
(N.Y. Sup. Ct. 2021). The QDAO then dismissed all charges
against Bell. (Am. Compl. ¶ 14.)
The exoneration was based in part on the revelation
that Brady material was not disclosed to Bell prior to
his conviction. Plaintiff states that the most significant
undisclosed exculpatory evidence is Heider's DD5 288, dated
May 16, 1997, which contained the statement by Witness
#1 that Speedstick member Jamal Clark described his own
involvement in the robbery of the checking cashing store on
Astoria Boulevard that had “gone bad.” (Id. ¶ 260.) It was
also discovered that DD5 288 and other DD5s related to the
NYPD's investigation of Speedstick were turned over to the
QDAO but not produced as Brady material. (Id. ¶ 272.)
*6 The CIU investigation uncovered additional exculpatory
evidence that was not disclosed to Bell, for example: the
NYPD All Points Bulletin, which stated that suspects in a
nearby robbery of a check cashing store were also suspects
in the Murders; a DD5 indicating that days before the
Murders, three or four men, including one whose scar and
mustache matched that of Jamal Clark's, appeared to be
casing Epstein's check cashing store; eyewitness statements
and a DD5 that contradicted Bell's confession regarding the
color of the getaway car; interviews with two eyewitnesses
who described the getaway vehicle as having North or
South Carolina license plates, tying the Murders to the
Boone twins, who owned a nightclub in South Carolina; and
information regarding Bigweh's testimony, including a DD5
reflecting that Bigweh stated that he was not involved in the
Murders, information that Bigweh's cooperation agreement
was terminated shortly before Bell's trial, and documents
showing that Bigweh had attempted suicide in custody
and experienced auditory hallucinations for which he had
received psychiatric evaluation. (Id. ¶ 276.)
V. Policies and Practices of the QDAO
Plaintiff alleges that the Brady violations that occurred in
relation to his conviction were not an isolated incident, but
part of a pattern and practice of the QDAO to encourage
Brady violations in order to secure convictions. (Id. ¶ 314.)
The QDAO had a policy and practice of “siloing” information
across bureaus, making it difficult for prosecutors from
different bureaus to access and share information, and giving
“plausible deniability” to prosecutors who did not search
beyond their own bureaus for exculpatory materials. (Id.
¶ 318.) The office also did not provide any training to
prosecutors on how to locate Brady material known to other
prosecutors in the office. (Id. ¶¶ 325, 348.) In Plaintiff's case,
the QDAO confirmed during its post-conviction investigation
that “significant” Brady material relating to the Speedstick
Gang was not located in the files of Bell, Bolt, or Johnson, but
rather, all Speedstick material was stored in a separate bureau.
(Id. ¶¶ 328-31.)
ADA Testagrossa stated that the failure to produce Brady
material was a “ ‘law office failure’ that occurred as a result
of ‘silo procedures engaged in by the [QDAO] during the
late 1990s.’ ” (Id. ¶ 335.) ADA Brad Leventhal, another
prosecutor in the case against Bell, stated that the failure to
produce Brady material “ ‘was the result of the [QDAO's]
architecture during the last millennium, which created an
environment in which significant possibilities for the failure
to share critical information existed.’ ” (Id. ¶ 343.) Plaintiff
alleges that during the period before Bell's arrest, New York
state courts reversed “numerous convictions as a result of the
QDAO's failure to comply with Brady.” (Id. ¶ 360.)
In addition to not training prosecutors on their Brady
obligations, Plaintiff alleges that the QDAO failed to
investigate or discipline violations of those obligations. (Id.
¶ 365.) Prior to and during Bell's prosecution, the QDAO
“had an extensive history of prosecutorial misconduct that
caused constitutional violations,” including Brady violations,
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“and the failure to correct the same.” (Id. ¶ 369.) In 1996,
the QDAO compiled a Prosecutorial Misconduct Survey
(“Survey”), which identified at least 39 cases where an
appellate court found, or the QDAO admitted, that the
QDAO committed misconduct, including Brady violations.
(Id. ¶¶ 372-73.) Plaintiff alleges that this represents “just a
fraction” of all instances of misconduct committed by the
QDAO between 1988-1995 and identifies an additional 19
judicial decisions finding misconduct that were not included
in the Survey. (Id. ¶¶ 374, 386.) Plaintiff alleges that,
despite this knowledge of documented misconduct, QDAO
leadership did not discipline prosecutors or implement any
policies, procedures, evaluations, or other changes to avoid
committing Brady violations. (Id. ¶¶ 376-84, 393.)
STANDARD OF REVIEW
To survive a Rule 12(b)(6) motion, Plaintiff's allegations must
be supported by “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’ ” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible 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. The court accepts
“all factual allegations in the complaint as true and draw[s]
all reasonable inferences in favor of the plaintiff.” Hayles v.
Aspen Properties Grp., LLC, 782 F. App'x 3, 5 (2d Cir. 2019).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “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.’
” Hayles, 782 F. App'x. at 5 (quoting Twombly, 550 U.S. at
558).
DISCUSSION
I. Malicious Prosecution Claims Against Pia and Sica
*7 Plaintiff alleges that Defendants Pia and Sica engaged
in malicious prosecution when they coerced Plaintiff's
confession to crimes he did not commit and gave that coerced
confession to prosecutors, the grand jury and trial jury,
causing Bell to be wrongfully prosecuted for those crimes.
(Am. Compl. ¶¶ 466-77, 495-507.) The Third Claim asserts
a federal claim under 42 U.S.C. § 1983, and the Fifth Claim
asserts a claim under state common law.
The elements of federal and state law malicious prosecution
claims are “substantially the same.” Boyd v. City of New York.,
336 F.3d 72, 75 (2d Cir. 2003). To demonstrate a § 1983 claim
for malicious prosecution, “a plaintiff must show a violation
of his rights under the Fourth Amendment” and “prove (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, 160-61 (2d
Cir. 2010) (quotations omitted). 1
Defendants argue that the malicious prosecution claims fail on
three grounds: first, that Pia is entitled to absolute immunity
based on his testimony to the grand jury; second, that Plaintiff
has not plausibly alleged how conduct by Pia and Sica
overcomes the presumption of probable cause created by
the grand jury indictment; and third, that Plaintiff does not
plausibly allege that Sica initiated or continued criminal
proceedings against him. (Defendants’ Memorandum of Law
in Further Support of Motion to Dismiss (“Defs. Reply”) at
1, Dkt. 78.)
A. Absolute Immunity for Grand Jury Witnesses
Grand jury witnesses are entitled to absolute immunity for
their testimony before a grand jury. Rehberg v. Paulk, 566
U.S. 366, 367 (2012); see also Matthews v. City of New York,
889 F. Supp. 2d 418, 439-440 (E.D.N.Y. 2012) (dismissing
plaintiff's malicious prosecution claim “insofar as it is based
on the Individual Defendants’ grand jury testimony and
pretrial hearing testimony.”). “Rehberg, however, does not
justify absolute immunity where liability is based not ‘on
the witness’ testimony,’ but on other conduct ‘laying the
groundwork for an indictment’—where the perjury ‘was but
one additional step’ taken to push the case forward.” Coggins
v. Cnty. of Nassau, 988 F. Supp. 2d 231, 244 (E.D.N.Y. 2013),
aff'd in part, appeal dismissed in part sub nom. Coggins v.
Buonora, 776 F.3d 108 (2d Cir. 2015) (quoting Sankar v.
City of New York, No. 07-CV-4726 (RJD)(SMG), 2012 WL
2923236, at *3 (E.D.N.Y. July 18, 2012)).
Defendants argue that Pia, who testified in the grand jury
proceeding in Bell's case, is entitled to absolute immunity
for his testimony pursuant to Rehberg. (Defs. Mem. at 5.)
Defendants state that “Det. Pia's Grand Jury testimony reflects
that his testimony was limited to an inculpatory statement
that plaintiff made and which Det. Pia recorded. As that
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was the entirety of Det. Pia's involvement in the Grand
Jury proceedings, he is entitled to absolute immunity under
Rehberg for such testimony.” (Id. at 6.)
*8 Defendants’ argument is misplaced. Plaintiff's malicious
prosecution claim against Pia rests not on Pia's testimony to
the grand jury, but on his conduct “ ‘prior to’ and ‘independent
of’ grand jury testimony.” (Plaintiff's Memorandum of Law
in Opposition to Defendants’ Partial Motion to Dismiss
(“Pl. Mem.”) at 11, Dkt. 75 (quoting Coggins v. Buonora,
776 F.3d at 113).) Specifically, Plaintiff alleges that Pia
(together with Sica) coerced Bell's confession, then forwarded
it to the prosecutor. The fact that Pia then testified to
the grand jury about that confession does not grant him
immunity for his actions in coercing Plaintiff's confession
prior to his testimony. A police officer is not entitled to
absolute immunity as a grand jury witness “when a §
1983 plaintiff alleges that the officer withheld and falsified
evidence in addition to committing perjury before the grand
jury.” Coggins v. Buonora, 776 F.3d at 112-13. “When a
police officer claims absolute immunity for his grand jury
testimony under Rehberg, the court should determine whether
the plaintiff can make out the elements of his § 1983 claim
without resorting to the grand jury testimony. If the claim
exists independently of the grand jury testimony, it is not
‘based on’ that testimony, as that term is used in Rehberg.”
Id. at 113. Because Pia's conduct in coercing the confession
(separate from his grand jury testimony) laid the groundwork
for the indictment, Plaintiff is capable of making out the
elements of his malicious prosecution claim without reference
to Pia's grand jury testimony. 2
Accordingly, Pia is not entitled to absolute immunity with
regard to the malicious prosecution claim against him.
B. Probable Cause
“[T]he existence of probable cause is a complete defense to a
claim of malicious prosecution in New York.” Savino v. City
of New York, 331 F.3d 63, 72 (2d Cir. 2003). “ ‘[I]ndictment
by a grand jury creates a presumption of probable cause.’ ”
Manganiello, 612 F.3d at 161-162 (quoting Savino, 331 F.3d
at 72).
“If plaintiff is to succeed in his malicious prosecution
action after he has been indicted, he must establish that the
indictment was produced by fraud, perjury, the suppression
of evidence or other police conduct undertaken in bad faith.”
Colon v. City of New York, 60 N.Y.2d 78, 83 (1983). “A
plaintiff may demonstrate fraud or perjury through ‘evidence
establishing that the police witnesses have not made a
complete and full statement of facts either to the Grand Jury
or to the District Attorney, that they have misrepresented
or falsified evidence, that they have withheld evidence or
otherwise acted in bad faith.’ ” Ying Li v. City of New
York, 246 F. Supp. 3d 578, 612 (E.D.N.Y. 2017) (quoting
Rothstein v. Carriere, 373 F.3d 275, 283 (2d Cir. 2004)). “[A]
police officer may not reasonably rely on a known coerced
confession as lawful grounds for probable cause.” Ricciuti
v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997).
Allegations that police officers coerced a false confession
or withheld exculpatory evidence are sufficient to overcome
a presumption of probable cause. Rodriguez v. City of New
York, 590 F. Supp. 3d 518, 539 (E.D.N.Y.), amended on
reconsideration in part, 607 F. Supp. 3d 285 (E.D.N.Y. 2022).
Defendants argue that Plaintiff has not overcome the
presumption of probable cause created by his indictment
because his allegations are “vague, conclusory, and
speculative.” (Defs. Reply at 3.) They also contend that in
order to state a claim for malicious prosecution, Plaintiff must
“establish what occurred in the grand jury,” but that he has
failed to do so. (Defs. Mem. at 4 (quoting Rothstein, 373 F.3d
at 284).)
I find that Plaintiff has sufficiently alleged facts that overcome
the presumption of probable cause created by the indictment.
Plaintiff describes in detail how Pia and Sica coerced his
confession, that they knew his confession was false, and that
they provided this falsified information to prosecutors for use
in indicting and prosecuting Plaintiff. Plaintiff alleges that
Pia and Sica could not reasonably rely upon a confession
they knew to be coerced or false to establish probable
cause. Moreover, despite Defendants’ assertions, Plaintiff
is not required “to prove what happened before the grand
jury to negate probable cause” when he bases his malicious
prosecution claims on what occurred outside—not inside—
the grand jury proceedings. (See Defs. Mem. at 4 (quoting
Frederick v. New York City, No. 11 CIV. 469 (JPO), 2012
WL 4947806, at *9 (S.D.N.Y. Oct. 11, 2012)) (grand jury
minutes ordered to be produced for court's in camera review
in order to determine whether there was a “particularized
need” justifying unsealing) and citing Rothstein, 373 F.3d at
283 (malicious prosecution claim dismissed where plaintiff
failed “even to attempt to make [a] showing” of “fraud,
perjury, suppression of evidence or other misconduct in the
grand jury” when plaintiff alleged only that defendant made
false and malicious report to law enforcement).) 3
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C. Initiation or Continuation of a Criminal Proceeding
Against Plaintiff
*9 “A jury may permissibly find that a defendant initiated
a prosecution where he ‘fil[ed] the charges’ or ‘prepar[ed an]
alleged false confession and forward[ed] it to prosecutors.’
” Manganiello, 612 at 163 (2d Cir. 2010) (quoting Ricciuti,
124 F.3d at 130). “With respect to Section 1983 malicious
prosecution claims, district courts in this circuit have ‘held
that a jury could find an officer liable despite the fact
that he did not bring the formal charges or fill out a
complaining affidavit, [because] that officer reported the
evidence to the complaining officer.’ ” Rodriguez, 590 F.
Supp. at 535 (quoting Bryant v. Crowe, 697 F. Supp. 2d 482,
492-93 (S.D.N.Y. 2010)). “When a police officer creates false
information likely to influence a jury's decision and forwards
that information to prosecutors, ... the harm occasioned by
such an unconscionable action is redressable in an action
for damages under 42 U.S.C. § 1983.” Matthews, 889 F.
Supp. 2d at 440 (quoting Ricciuti, 124 F.3d at 130). “[T]here
is no requirement that an officer have direct contact with
the prosecutor.” Maldonado v. City of New York, No. 11-
CIV-3514 (RA), 2014 WL 787814, at *6 (S.D.N.Y. Feb. 26,
2014).
Defendants argue that Plaintiff fails to allege that Sica played
an “active role” in the prosecution because he did not
“initiate” or “continue” proceedings against Bell, pointing
out that Pia, not Sica, signed the criminal complaint against
Plaintiff. (Defs. Mem. at 6; Defs. Reply at 4; see Am. Compl
¶ 468.)
Plaintiff was not required to allege that Sica brought formal
charges against Plaintiff in order to plead that Sica initiated
or continued proceedings against him. Plaintiff alleges that
Sica participated in coercing Plaintiff's confession, fabricated
and signed a DD5 stating that Bell said he had falsely accused
Mendez Collier, and provided both the false confession and
fabricated DD5 to prosecutors. (Am Compl. ¶¶ 121-23, 126;
Pl. Mem. at 13.) Plaintiff was not required, as Defendants
contend, to allege that the DD5 was presented to the
grand jury (Defs. Reply at 4), only that Sica provided
the falsified document to prosecutors. See Boley v. Durets,
No. 12-CV-4090 (ARR)(JO), 2013 WL 6562445, at *6
(E.D.N.Y. Dec. 10, 2013) (finding that “defendant police
officers initiated the proceeding by knowingly forwarding
false evidence to prosecutors.”).
Accordingly, I find that Plaintiff has sufficiently pled
malicious prosecution claims against Defendants Pia and
Sica.
II. Fair Trial Claims Against Defendants Nevins and
Heider
Plaintiff alleges that Nevins and Heider deprived him of
his right to a fair trial by failing to disclose exculpatory
information to him or to prosecutors. (Am. Compl. ¶¶
452-465; Pl. Mem. at 14.) Specifically, Plaintiff alleges that
Heider deliberately chose not to disclose Brady evidence
and affirmatively misled prosecutors by representing that his
investigation into the Speedstick Gang had no relation to the
Murders, and that Nevins possessed information about the
Speedstick Gang's involvement in the Murders that he did not
provide to prosecutors. (Am. Compl. ¶¶ 282, 452-465.)
“A fair trial claim is a civil claim for violations of a
criminal defendant's Fourteenth Amendment due process
rights.” Fappiano v. City of New York, 640 F. App'x 115,
118 (2d Cir. 2016) (citing Ramchair v. Conway, 601 F.3d
66, 73 (2d Cir. 2010)). “A fair trial claim may ... arise
where the police or prosecutors withhold material exculpatory
or impeaching evidence from a defendant. Th[is] theory of
liability is essentially a civil claim seeking damages for a
Brady violation.” 4 Id. at 118 (citing Bermudez v. City of New
York, 790 F.3d 368, 376 n.4 (2d Cir. 2015)).
*10 A violation of Brady v. Maryland, 373 U.S. 83
(1963) has three elements: “The evidence at issue must be
favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” Fappiano, 640 F. App'x
at 118 (quoting United States v. Rivas, 377 F.3d 195 (2d
Cir. 2004)). “To establish prejudice, a plaintiff must show
the evidence was material; i.e., whether the evidentiary
suppression undermines confidence in the outcomes of the
trial.” Id. at 118 (quotation omitted). “The Second Circuit
has ‘suggested, though without so concluding, that a civil
Brady claim requires a showing that the non-disclosure
was intentional.’ ” Fraser v. City of New York, No. 20-
CV-04926 (CM), 2021 WL 1338795, *5 (S.D.N.Y. Apr. 9,
2021) (quoting Bellamy v. City of New York, 914 F. 3d 727,
751 n.23 (2d Cir. 2019)).
A. Nevins
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Defendants argue that Plaintiff improperly alleges a theory
of supervisory liability against Nevins, that there is no denial
of fair trial claim based on a police officer's failure to
conduct an adequate investigation, and that Plaintiff has not
plausibly alleged that Nevins suppressed evidence. (Defs.
Mem. at 7-8; Defs. Reply at 5-6.) Defendants contend that
the allegation that Nevins withheld exculpatory information
about the connection between the investigation into the
Speedstick Gang and the Murders is “completely conclusory
and speculative” because Plaintiff “in no way specifies
exactly what information he is referring to or that Lt. Nevins
was the NYPD officer investigating this case who had the
responsibility for interacting with the [QDAO] prosecutors
regarding such information.” (Defs. Mem. at 8.)
Plaintiff's claim against Nevins is not premised on a theory
of supervisory liability but is based on his individual
actions in failing to turn over Brady material to the
prosecutors. (Pl. Mem. at 16.) Plaintiff alleges that Nevins,
who was the Commanding Officer of the Queens Homicide
Squad, possessed information about the Speedstick Gang's
involvement in the Murders because Det. Calantjis, one of
the lead detectives in the Speedstick investigation, “provided
all of the information he had” to Pia, Sica and Nevins. (Am.
Compl. ¶¶ 218, 280-81.) Plaintiff may seek to hold Nevins
liable for his personal involvement in actually possessing
Brady material and failing to turn it over to prosecutors.
See Jackson, 552 F. Supp. 3d at 376-77 (noting that there
is no special test for supervisory liability under Section
1983 and permitting claims against supervisory officer to
proceed where plaintiff pleaded “direct participation in
certain constitutional violations.”).
Likewise, Plaintiff does not assert that Nevins is liable under
Section 1983 for failure to conduct an adequate investigation
by not pursuing leads regarding Speedstick's involvement in
the Murders. Rather, Plaintiff's allegations against Nevins rest
on his failure to turn over potentially exculpatory information
in his possession to prosecutors.
The information from the Speedstick investigation would
have included material showing the possible involvement of
members of Speedstick in the Murders and could have been
favorable to Plaintiff. Nevertheless, when Nevins testified
at Plaintiff's trial and was questioned by defense counsel
about a robbery committed by Speedstick, ADA Testagrossa
objected on the basis that there was no connection between
the crimes. (Pl. Mem. at 15; Am. Compl. ¶¶ 218-19.)
The prosecutors also never produced information about the
Speedstick investigation in response to Plaintiff's requests for
Brady material. Plaintiff contends that it is reasonable to infer
from these facts that either Nevins withheld the Speedstick
evidence from the prosecution or, in the alternative, that the
prosecutors withheld it from Plaintiff. (Am. Compl. ¶ 282; Pl.
Mem. at 15-16.) 5
*11 Plaintiff's allegations are plausible. Drawing all
reasonable inferences in favor of Plaintiff, as is required at
this stage, it is reasonable to infer that Nevins possessed
exculpatory information from the Speedstick investigation
that he withheld from prosecutors. See Ying Li, 246 F. Supp.
3d at 627 (finding that plaintiff sufficiently pled a Brady
violation where defendant police officer did not inform the
district attorney's office about exculpatory evidence). Plaintiff
does not need to specify what information Nevins had
concerning Speedstick, because Det. Calantjis provided “all”
the information he had about the Speedstick investigation
with Nevins, which would include information about the
connection between Speedstick members and the Murders.
Without deciding whether the non-disclosure of exculpatory
evidence must be intentional for a fair trial claim based on a
violation of Brady, I also find that because Nevins withheld
information of obvious exculpatory value from prosecutors, it
is reasonable to infer that the non-disclosure was intentional.
See Valentin v. City of Rochester, No. 11-CV-6238 (CJS),
2018 WL 5281799, at *13 (W.D.N.Y. Oct. 24, 2018), aff'd,
783 F. App'x 97 (2d Cir. 2019) (stating that a police officer
intentionally suppresses exculpatory evidence when he “hides
the information, which is known only to the police, from the
prosecutor.”).
B. Heider
Defendants argue that Plaintiff fails to plead any facts
supporting the allegation that Heider withheld exculpatory
information from prosecutors. They contend, to the contrary,
that Heider created DD5 288 (which he did provide to
prosecutors), that Heider cannot be held accountable for
notes taken by ADA Testagrossa, and that Testagrossa's notes
contain information provided by Heider which Plaintiff does
not contend is false. 6 (Defs. Reply at 6.)
Plaintiff plausibly alleges that Heider possessed and failed to
turn over exculpatory material to prosecutors. As one of the
lead detectives investigating Speedstick, Heider was “aware
of substantial evidence” that members of the Speedstick
Gang, not Bell, had committed the Murders. He prepared
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the DD5 288 containing a witness statement linking Jamal
Clark and the Speedstick Gang to the Murders, identifying
Clark as using the code name “Jason.” He also signed the
felony complaint charging armed robbery against Speedstick
members Boone and Majors, who were reported in the news
media as being suspects in the Murders. (Pl. Mem. at 14-15;
Am. Compl. ¶¶ 202-204, 260.)
ADA Testagrossa's notes indicate that, at some point in 1997,
Heider shared at least some information with the prosecution
regarding the Speedstick Gang, including that the driver
“Jason” was actually Jamal Clark, and who the “Bosses” of
the gang were. (Am. Compl. ¶¶ 226-27.)
However, when Bell's counsel sought to have Heider testify
at Plaintiff's trial, his testimony was precluded based on
ADA Testagrossa's representation to the court that there was
“no connection” between Heider's Speedstick investigation
and the Murders. (Id. ¶¶ 216-17.) It is plausible, as
Plaintiff alleges, that at the time of the trial in 1999,
Heider falsely misrepresented to ADA Testagrossa that there
was no connection between the Murders and Speedstick,
notwithstanding any previous communications. (Id. ¶¶
228-29.) It is also plausible that Heider did not share with
prosecutors all the information in his possession that was
exculpatory as to Bell's guilt. Finally, it is plausible, given the
direct link between the information Heider possessed and the
Murders, that Heider's withholding of exculpatory material
was intentional. (Id. ¶ 233.)
*12 Plaintiff argues, in the alternative, that ADAs
Testagrossa and Leventhal lied to the court, rather than
Heider. (Id. ¶¶ 230-32, 234.) However, as discussed supra,
Plaintiff is permitted to plead in the alternative at this point,
and the pleading is sufficient if any alternative is sufficient
to state a claim. Fed. R. Civ. P. 8(d); see also Breton, 404 F.
Supp. 3d at 814.
Accordingly, I find that Plaintiff has sufficiently alleged fair
trial claims against Defendants Nevins and Heider.
III. Municipal Liability
Plaintiff alleges that the City is liable for the deprivation of
Plaintiff's constitutional rights under a theory of municipal
liability because policies and customs of the QDAO led to
Brady violations and were a “substantial factor” in Plaintiff's
wrongful conviction and imprisonment. (Am. Compl. ¶¶
478-94.)
“A municipality may be liable under Section 1983 if a
municipal ‘policy or custom’ causes ‘deprivation of rights
protected by the Constitution.’ ” Ying Li, 246 F. Supp. 3d at
636 (quoting Monell v. Dep't of Soc. Servs. of City of New
York, 436 U.S. 658, 690-91 (1978)). “A policy or custom
may be established by any of the following: (1) a formal
policy officially endorsed by the municipality; (2) actions or
decisions made by municipal officials with decision-making
authority; (3) a practice so persistent and widespread that
it constitutes a custom through which constructive notice is
imposed upon policymakers; or (4) a failure by policymakers
to properly train or supervise their subordinates, such that
the policymakers exercised ‘deliberate indifference’ to the
rights of the plaintiff.” Moran v. Cnty. of Suffolk, No. 11-
CIV-3704 (PKC)(GRB), 2015 WL 1321685, at *9 (E.D.N.Y.
Mar. 24, 2015); Vives v. City of New York, 524 F.3d 346, 350
(2d Cir. 2008) (formal policy or actions by a municipal official
possessing decision-making authority constitute custom or
policy); Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 62
(2d Cir. 2014) (widespread and persistent practice constitutes
a custom or policy); Parker v. City of Long Beach, 563
F. App'x 39, 41 (2d Cir. 2014), as amended (Apr. 21,
2014) (failure to train amounting to deliberate indifference
constitutes custom or policy). In addition, a plaintiff must
demonstrate “a causal connection between the custom or
policy” and the alleged deprivation of rights. Cordero v. City
of New York, 282 F. Supp. 3d 549, 563 (E.D.N.Y. 2017). “The
pleading standard for Monell claims is no greater than for
any other claim subject to Federal Rule of Civil Procedure
8(a).” Newson v. City of New York, No. 16-CV6-773 (ILG)
(JO), 2019 WL 3997466 (E.D.N.Y. Aug. 23, 2019).
Plaintiff asserts two theories of municipal liability. He
pleads that the QDAO had a policy, custom, or practice of
suppressing Brady material through its widespread practice of
siloing exculpatory information across separate bureaus, and
that QDAO policymakers failed to train or discipline ADAs
for Brady violations, thus exhibiting deliberate indifference
to constitutional violations. (Am. Compl. ¶¶ 478-94.)
A. Persistent and Widespread Practice
A plaintiff can demonstrate that a practice is widespread and
persistent by showing “that there is ‘a longstanding practice
or custom which constitutes the standard operating procedure
of the local governmental entity.’ ” Gem Fin. Serv., Inc.
v. City of New York, 298 F. Supp. 3d 464, 491 (E.D.N.Y.
2018), as amended (June 27, 2018) (quoting Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). A persistent and
widespread policy exists where “a local government is faced
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with a pattern of misconduct and does nothing, compelling
the conclusion that the local government has acquiesced
in or tacitly authorized its subordinates’ unlawful actions.”
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). When
a plaintiff alleges that the actions of subordinate employees
give rise to claim, “the unlawful practice must be ‘so manifest
as to imply the constructive acquiescence of senior policy-
making officials.’ ” Gem Fin. Serv., Inc., 298 F. Supp. 3d at
491 (quoting Newton v. City of New York, 779 F.3d 140, 156
n.18 (2d Cir. 2015)). “Repeated and consistent conduct often
indicate city involvement or acquiescence to a deprivation of
liberty.” Cordero, 282 F. Supp. 3d at 564.
*13 “Plaintiffs may adequately plead the existence of de
facto customs or policies based on governmental reports
documenting constitutional deficiencies or misconduct,”
Felix v. City of New York, 344 F. Supp. 3d 644, 658 (S.D.N.Y.
2018), and may also “cit[e] to complaints in other cases
that contain similar allegations ... involve factually similar
misconduct, [are] contemporaneous to the misconduct at issue
in the plaintiff's case, and result in an adjudication of liability.”
Buari v. City of New York, 530 F. Supp. 3d 356, 398 (S.D.N.Y.
2021).
Defendants argue that Plaintiff has not provided sufficient
evidence that the practice was widespread beyond the cases
against Plaintiff, Rohan Bolt and Gary Johnson—the three
individuals prosecuted for the Murders—and that any Brady
violations due to siloing practices may have been negligent
but were not a “conscious choice” of the City. (Defs. Mem. at
13-14; Defs. Reply at 8 (quoting Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 128 (2d Cir. 2004)).)
Plaintiff need not allege that any Brady violations or the
practices leading to them were the “conscious choice” of the
City or QDAO. To establish the existence of a widespread
de facto custom or policy, plaintiff must “plausibly allege
a practice so widespread that it may be inferred [that] ...
policymakers were aware of ‘subordinate[s’] unconstitutional
actions, and consciously chose to ignore them, effectively
ratifying the actions.’ ” Buari, 530 F. Supp. 3d at 401
(quoting Amnesty Am., 361 F.3d at 126). One may infer
from a sufficiently widespread practice that policymakers
acquiesced in its existence and continuation. See Gem Fin.
Serv., Inc., 298 F. Supp. 3d at 491. Therefore, it is sufficient
for Plaintiff to allege that policymakers consciously chose not
to take action against the widespread and persistent practice
of siloing exculpatory information in order for that practice to
constitute a de facto policy; it is not necessary to allege that
the practice itself was a conscious choice by the City.
Plaintiff alleges that the QDAO had “office-wide policies
and practices that encouraged Brady violations as a means
of securing convictions.” (Am. Compl. ¶ 314.) More
specifically, Plaintiff alleges that the QDAO deliberately
“siloed” information, making it “exceedingly difficult” for
prosecutors to share or access information across different
bureaus, thereby giving prosecutors “plausible deniability”
for failing to search for or produce exculpatory material. (Id.
¶ 318.) The “prevailing norm at the QDAO was that once
an ADA had reviewed documents in his or her own case
file or, at most, his or her own bureau of Brady material,
his or her Brady obligations were satisfied.” (Id. ¶ 322.)
During Bell's post-conviction investigation, the QDAO stated
that “significant” exculpatory information relating to the
Speedstick Gang was maintained in the Major Crimes and
Career Criminal Bureau, and not contained in Bell's case
file, which was in the Homicide Bureau. (Id. ¶¶ 328-30.) A
prosecutor's Brady obligations extend to all material evidence
known to that prosecutor, and “[a] prosecutor is presumed
to know all information gathered by his office in connection
with an investigation of the case” and “ ‘has a duty to learn
of any favorable evidence known to the others acting on the
government's behalf in the case.’ ” United States v. Ferguson,
478 F. Supp. 2d 220, 238 (D. Conn. 2007) (citing United
States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) and
quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)).
*14 Plaintiff offers multiple forms of evidence to
substantiate his claim that the siloing practice was
widespread and persistent. The Amended Complaint contains
sworn statements from QDAO prosecutors testifying to a
widespread siloing practice at the time of Plaintiff's case.
(Am. Compl. ¶¶ 335-350.) ADA Testagrossa stated that the
Brady violations in Plaintiff's case were a “ ‘law office failure’
that occurred as a result of ‘silo procedures engaged in by
the [QDAO] during the late 1990s.’ ” (Id. ¶ 335.) ADA
Leventhal stated that the Brady violations were “ ‘the result of
the [QDAO's] architecture during the last millennium, which
created an environment in which significant possibilities for
the failure to share critical information existed.’ ” (Id. ¶ 343.)
Plaintiff also provides a list of several cases in which appellate
courts “reversed numerous convictions as a result of the
QDAO's failure to comply with Brady,” citing to People
v. Steadman/Blair, 82 N.Y.2d 1 (1993), where the Court
of Appeals found that the QDAO “made a ‘determined
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effort’ to avoid its Brady obligations by ‘shield[ing]’ the trial
ADAs from knowledge of any agreement with a cooperating
witness (Am. Compl. ¶ 361); People v. Baba-Ali, 179 A.D.2d
725 (2d Dep't 1992), where the Appellate Division Second
Department “chastised the QDAO for an ‘inexcusable’ failure
to produce exculpatory records when [the prosecutors] were
‘under court order to do so’ and ‘had had them in their
possession for several months’ ” (Am. Compl. ¶ 362);
People v. Banch, 80 N.Y.2d 610, 621 (1992), where the
Court of Appeals reversed a conviction due to a failure to
produce a witness's prior statement under People v. Rosario,
9 N.Y.2d 286 (1961), “noting the QDAO's ‘seeming lack
of care in discharging their discovery obligation’ ” (Am.
Compl. ¶ 361); People v. Shim, 218 A.D.2d 757 (2d Dep't
1995), where the court “faulted the QDAO for failing to
disclose potential impeachment evidence” (Am. Compl. ¶
362); People v. Fearnot, 200 A.D.2d 583 (2d Dep't 1994),
where the conviction was reversed “due to multiple Rosario
violations” (Am. Compl. ¶ 362); and People v. Kirchner,
200 A.D.2d 766 (2d Dep't 1994), where the conviction was
reversed “because [the] QDAO failed to disclose potential
impeachment evidence.” (Am. Compl. ¶ 362.)
Plaintiff also describes a Prosecutorial Misconduct Survey
compiled by the QDAO in 1996 which recorded at least 39
instances of misconduct in the “few years” before Plaintiff's
trial and conviction, “including Brady and related discovery
violations, summation misconduct, improper reliance on
false evidence, and prejudicial degradation of criminal
defendants.” (Id. ¶¶ 371-75.) While not all of the cases
recorded in the Survey and cited by Plaintiff concern
prosecutorial misconduct related to Brady and Rosario
violations, many of them do, thus supporting the allegation
of a widespread and persistent practice of failing to produce
exculpatory information, including impeachment material.
Defendant argues that two of the cases cited by Plaintiff,
Steadman/Blair and Baba-Ali, are not sufficiently similar
to Plaintiff's claims because in the former “the [QDAO]
purposely shielded the trial attorneys from an agreement
with a cooperating witness,” while the latter “stands for the
unremarkable proposition that prosecutors failed to produce
court ordered exculpatory material.” (Defs. Reply at 8.) While
Steadman/Blair and Baba-Ali do not specifically reference
the siloing practice described by ADAs Testagrossa and
Leventhal (although the shielding of trial attorneys from
cooperation agreements has some similarity to siloing), both
cases contain findings by appellate courts of Brady violations
by QDAO prosecutors in adjudicated cases within a few
years of Plaintiff's arrest, investigation, and trial. They, along
with several of the other state appellate court cases cited
by Plaintiff, are factually similar to Plaintiff's allegations in
that they concern failures to produce exculpatory evidence,
were sufficiently contemporaneous, and contained findings in
adjudicated cases. See Buari, 530 F. Supp. 3d at 398. They,
therefore, may be relied upon to support Plaintiff's allegation
that the QDAO had a widespread and persistent practice of
not discovering and producing Brady material.
*15 Therefore, I find that Plaintiff has sufficiently alleged
a practice at the QDAO of not complying with Brady
obligations that is so persistent and widespread that it
constitutes a custom through which constructive notice is
imposed upon its policymakers. See Fraser, 2021 WL
1338795 at *11 (“[D]istrict courts in this Circuit have
consistently refused to dismiss Monell claims alleging that
a county prosecutor's office has sanctioned an unlawful
practice.”).
B. Failure to Train or Supervise
“The failure to train or supervise city employees may
constitute an official policy or custom if the failure amounts
to ‘deliberate indifference’ to the rights of those with whom
the city employees interact.” Wray v. City of New York,
490 F.3d 189, 196 (2d Cir. 2007). “To establish ‘deliberate
indifference,’ a plaintiff must show that: [1] a policymaker
knows ‘to a moral certainty’ that city employees will confront
a particular situation; [2] the situation either presents the
employee with ‘a difficult choice of the sort that training or
supervision will make less difficult’ or ‘there is a history
of employees mishandling the situation;’ and [3] ‘the wrong
choice by the city employee will frequently cause the
deprivation of a citizen's constitutional rights.’ ” Id. (quoting
Walker v. City of New York, 974 F.2d 293, 297-98 (2d
Cir. 1992)). Proof that a policymaker failed to respond to
repeated complaints of constitutional violations is sufficient
to establish deliberate indifference, but not required; a
plaintiff need only show that the policymaker's inaction was
the result of a “conscious choice” rather than negligence.
Amnesty Am., 361 F.3d at 128 (quoting City of Canton, Ohio
v. Harris, 489 U.S. 378, 389 (1989)). In addition, “where ...
a city has a training program, a plaintiff must—in addition
—‘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.’ ” Wray, 490 F.3d at 196 (quoting Amnesty Am.,
361 F.3d at 129 (internal quotations omitted)).
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Defendants argue that Plaintiff fails to state a Monell claim
for failure to train or supervise because he does not plausibly
allege deliberate indifference: Plaintiff alleges neither a
pattern of similar complaints regarding the QDAO's alleged
siloing practice, nor that any siloing that did occur was a
“ ‘conscious choice’ ” by the City. (Defs. Reply at 8-9.)
Defendants also contend that the allegations collected in the
1996 Prosecutorial Misconduct Survey are not sufficiently
connected to the facts of Plaintiff's case to make out a
pattern of similar conduct and, contrary to Plaintiff's claims,
demonstrates that the QDAO did investigate claims of
misconduct. (Id. at 10.) Finally, Defendants argue that there
is no causal connection between any failure to discipline or
train and the alleged siloing. (Id. at 9.)
Defendants’ arguments are unavailing.
In order to show that the City's failure to train or supervise
amounts to deliberate indifference to the rights of those
with whom its employees interact, it is not necessary to
allege that the violative practice itself, i.e., siloing, was a
“conscious choice” by the City. It is sufficient to show that a
policymaker's inaction in responding to repeated complaints
of constitutional violations was the result of a “conscious
choice” rather than negligence. Amnesty Am., 361 F.3d at 128.
*16 Moreover, Plaintiff is not required to allege a pattern
of conduct regarding the QDAO's siloing practice. Plaintiff's
allegations about the QDAO's failure to train, supervise, or
discipline regarding Brady violations are not limited to the
practice of siloing. (Pl. Mem. at 23.) He alleges that “[t]he
QDAO provided no training to prosecutors on how to locate
Brady material known to other prosecutors in the office,
and had a custom and practice not to internally investigate,
reprimand, sanction or discipline prosecutors for misconduct,
including frequent Brady violations ... [in] deliberate and
reckless disregard of their constitutional ethical duties.” (Am.
Compl. ¶¶ 325, 365-66.)
Thus, the pattern of similar complaints need not reference
the practice of siloing and may include complaints of Brady
violations more generally, since complaints in individual
criminal cases are likely to focus on specific instances of
failures to discover and turn over exculpatory material rather
than delve into the institutional reasons for such failures.
Plaintiff alleges that District Attorney Richard Brown and
Chief Assistant District Attorney Barry Schwartz read and
were aware of the appellate decisions finding that Brady
violations had occurred, were policymakers at the QDAO
at the time the Survey was compiled, and “ ‘expressed
concern’ to each other ‘about reversals that characterized
the trial assistant engaging in what the courts like to call
“prosecutorial misconduct.” ’ ” (Am. Compl. ¶¶ 378-82.)
Despite this, the QDAO did not implement any training, and
did not discipline any prosecutors for misconduct. (Id. ¶ 393.)
To the contrary, Plaintiff alleges that prosecutors who engaged
in Brady violations received positive evaluations for their
conduct and were rewarded with bonuses and promotions.
In one example cited by Plaintiff, a prosecutor who failed
to disclose Brady material and misrepresented that all Brady
material had been disclosed during a 1990 case—and who
was later admonished by the Grievance Committee for the
Ninth Judicial District for his conduct—received positive
evaluations noting that “[t]his assistant likes to win and fights
toward that end” and “is a true warrior in that he never
backs down or gets intimidated”; no mention is made of his
misconduct. (Id. ¶¶ 397-400.) In 1995, a conviction by this
same prosecutor was overturned because he failed to turn
over Brady material, yet that same year, he was promoted
to Deputy Bureau Chief of the Supreme Court Long Island
City Bureau, where he supervised 10-11 prosecutors. (Id.
¶ 406-07.) The conviction secured by another prosecutor
was reversed in 1992 after the court found that she failed
to produce Brady material and misrepresented that Brady
material did not exist; after the reversal, that prosecutor
was not disciplined, received no additional training, and no
note was placed in her evaluation. (Id. ¶ 424-26.) Instead,
the prosecutor was given salary increases and bonuses and
promoted to Bureau Chief. (Id. ¶ 427.)
“As the Supreme Court explained in [Connick v. Thompson,
563 U.S. 51 (2011)], a ‘pattern of similar constitutional
violations by untrained employees is ‘ordinarily necessary’
to demonstrate deliberate indifference for purposes of a
failure to train.’ ” Bertuglia v. City of New York, 839
F. Supp. 2d 703 (S.D.N.Y. 2012) (denying a motion to
dismiss plaintiff's failure to train claim where plaintiff alleged
“the City has a longstanding, de facto policy of never
disciplining prosecutors who commit specified types of
prosecutorial misconduct and not otherwise training them
to avoid misconduct” and pointed to “over fifteen cases
where City prosecutors allegedly committed misconduct” and
“allege[d] the existence of many more.”). As discussed supra,
Plaintiff has alleged that Brady violations were a widespread
institutional failure at the QDAO, establishing a pattern of
similar conduct by untrained employees.
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*17 Plaintiff has adequately alleged deliberate indifference.
The City and QDAO knew to a moral certainty that ADAs
would be in possession of Brady materials because “these are
basic facets of an ADA's job.” Bertuglia, 839 F. Supp. 2d at
738. Plaintiff has alleged that there was a history of Brady
violations at the QDAO. Despite the QDAO policymakers’
awareness of the prevalence and consequences of Brady
violations, they did not take any action to train, supervise, or
discipline prosecutors, and instead rewarded prosecutors who
committed Brady violations.
The fact that the QDAO compiled the Prosecutorial
Misconduct Survey does not, as Defendants argue,
demonstrate that it implemented training or discipline as
a result. Plaintiff alleges that QDAO policymakers were
aware of the Prosecutorial Misconduct Survey, as well
as judicial decisions reflecting prosecutorial misconduct
including Brady violations, yet took no action whatsoever as
a result of this knowledge. (Am. Compl. ¶¶ 376, 378-83, 393.)
Plaintiff alleges that the QDAO's failure to train or discipline
regarding Brady violations led prosecutors to “repeatedly,
without fear of reprisal, with[hold] valuable Brady material”
in Plaintiff's case. (Id. ¶¶ 484-86.) This is sufficient to
allege a causal connection between the alleged failure to
train or discipline and Plaintiff's wrongful conviction and
incarceration.
I, therefore, find that Plaintiff has adequately stated a Monell
claim based on the QDAO's failure to train or discipline its
employees for Brady violations that amounted to deliberate
indifference to the constitutional rights of the individuals
whom it prosecuted.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the
Motion be denied.
Any written objections to this Report and Recommendation
must be filed within 14 days of this report. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to file
objections within the specified time waives the right to appeal
any order or judgment entered based on this Report and
Recommendation. Caidor v. Onondaga Cty., 517 F.3d 601,
604 (2d Cir. 2008).
All Citations
Not Reported in Fed. Supp., 2023 WL 11916696
Footnotes
1 “In addition, under Section 1983, the plaintiff must further demonstrate ‘a post-arraignment deprivation of
liberty that rises to the level of a constitutional violation.’ ” Jackson v. Nassau Cnty., 552 F. Supp. 3d 350, 370
(E.D.N.Y. 2021) (quoting Bailey v. City of New York, 79 F. Supp. 3d 424, 448 (E.D.N.Y. 2015)). The parties
do not dispute that Plaintiff experienced a deprivation of liberty.
2 Because the alleged unlawful conduct occurred prior to Pia's testimony to the grand jury—and Defendants
described the testimony as consisting only of Plaintiff's confession (Defs. Mem. at 6)—I find it unnecessary to
consider the transcript containing the contents of his testimony, portions of which Defendants filed under seal.
(See Declaration of Mark D. Zuckerman, Dkt. 71; Ex. A to the Declaration of Mark D. Zuckerman, Dkt. 74.)
3 In any event, Defendants confirm that Bell's “inculpatory statement” was presented to the grand jury through
Pia's testimony (Defs. Mem. at 6), thus establishing that the statement Pia and Sica are alleged to have
coerced was used as part of the grand jury proceedings.
4 A police officer also “denies a defendant a fair trial when she creates ‘false information likely to influence a
jury's decision and forwards that information to prosecutors,’ ” Fappiano v. City of New York, 640 F. App'x
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at 118 (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d at 130), but Plaintiff does not allege that Heider or
Nevins fabricated any evidence. (See Pl. Mem. at 15.)
5 Plaintiff is permitted to plead in the alternative, and the pleading is sufficient if either alternative is sufficient.
“A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a
single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient
if any one of them is sufficient.” Fed. R. Civ. P. 8(d); see also Breton v. City of New York, 404 F. Supp. 3d
799, 814 (S.D.N.Y. 2019).
6 Defendants also state that Heider would be entitled to absolute immunity based on testimony given to a grand
jury under Rehberg v. Paulk, 566 U.S. 366 (2012), without identifying what grand jury testimony they are
referring to. (Pl. Mem. at 9.) As discussed supra, Rehberg does not provide absolute immunity for conduct
that occurred outside the grand jury, i.e., withholding exculpatory evidence from prosecutors.
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Braxton v. Bruen, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Red Flag
Vacated and Remanded by Braxton v. Bruen, 2nd Cir.(N.Y.), November
13, 2023
2021 WL 4950257
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Benjamin BRAXTON a/k/
a Obed/Edom Braxton, Plaintiff,
v.
Kevin BRUEN, et al., Defendants.
9:17-cv-1346 (BKS/ML)
|
Signed 10/22/2021
|
Filed 10/25/2021
Attorneys and Law Firms
Plaintiff pro se: Benjamin Braxton, 16-A-2314, Sing Sing
Correctional Facility, 354 Hunter Street, Ossining, NY 10562.
For Defendants: Letitia James, Attorney General of the State
of New York, Robert J. Rock, Office of Attorney General-
Albany, Department of Law, The Capitol, Albany, NY 12224.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, United States District Judge:
I. INTRODUCTION
*1 Plaintiff Benjamin Braxton a/k/a Obed Edom, an inmate
who was, at all relevant times, in the custody of the New
York Department of Corrections and Community Supervision
(“DOCCS”), brings this action under 42 U.S.C. § 1983
alleging that he 1 has been exposed to unreasonable levels
of secondhand smoke during his incarceration, in violation
of the Eighth Amendment. (Dkt. No. 42). 2 Plaintiff names
as Defendants DOCCS Deputy Commissioner of Counsel
Kevin Bruen, Deputy Commissioner of Program Services Jeff
McKoy, Deputy Commissioner of Facility Operations Joseph
Bellnier, 3 Deputy Commissioner of Administrative Services
Daniel F. Martuscello, III, and Deputy Commissioner Chief
Medical Officer Carl K. Koenigsmann. (Id.).
Defendants moved for summary judgment under Fed. R.
Civ. P. 56 on February 21, 2020, and Plaintiff opposed
that motion. (Dkt. Nos. 80, 86). On August 24, 2020,
United States Magistrate Judge Miroslav Lovric issued a
Report-Recommendation recommending that Defendants’
motion be denied. (Dkt. No. 88). The Court adopted the
Report-Recommendation on September 25, 2020, and denied
Defendants’ motion. (Dkt. No. 89). In light of the Second
Circuit's decision in Tangreti v. Bachmann, 983 F.3d 609
(2d Cir. 2020) (decided December 28, 2020), the Court
granted Defendants’ request to file a supplemental motion
for summary judgment on the limited issue of personal
involvement. (Dkt. No. 101). Presently before the Court is
Defendants’ supplemental motion for summary judgment,
(Dkt. No. 106), and Plaintiff's response, (Dkt. No. 109).
For the reasons discussed below, Defendants’ supplemental
motion for summary judgment is granted.
II. FACTS 4
*2 Plaintiff alleges that he was exposed to
Environmental Tobacco Smoke (“ETS”) while incarcerated at
Downstate Correctional Facility (“Downstate”), and Clinton
Correctional Facility (“Clinton”) between 2016 and 2017,
even though “starting in 1999, DOCCS adopted a smoke free
policy ... [and a]s part of this policy, smoking was strictly
prohibited within all facility buildings.” (Dkt. No. 106-7, at ¶
10; Dkt. No. 42, at ¶¶ 60–62). At Downstate, Plaintiff alleges
that he was housed in a cell with smokers who smoked “4–
5 packs of cigarettes each day.” (Dkt. No. 42, at ¶ 60). When
Plaintiff washed his t-shirts at night they would “be beige in
color in the morning” from the smoke. (Id.). Plaintiff would
“awaken at night wheezing and coughing from the smoke
of the smokers that surrounded his cell.” (Id. at ¶ 61). At
Clinton, Plaintiff reports that the “majority of the inmates are
smokers,” and that the smoke “rises like a ghostly apparition
-- lingering, and filling her lungs with its toxic gas.” (Id. at ¶
62; Dkt. No. 42-1, at 15; Dkt. No. 80-3, at 43–44). Inmates
“block the vents for fear of roaches in the system,” leading
to poor ventilation, and the DOCCS smoking policy was “not
enforced adequately.” (Dkt. No. 1-1, at 1; Dkt. No. 80-3, at
45). Officers would smoke inside the facility as well, “in the
hallways” and “hideaways ... where the camera can't detect
them.” (Dkt. No. 80-3, at 35–37).
Plaintiff asserts that exposure to ETS has caused him to
experience several health problems. He has had “asthma”
and “sinus issues,” has been “sneezing a lot,” and his nose
burns; he has been prescribed Nasacort and albuterol and has
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used Visine. (Dkt. No. 1-1, at 8–11, 22; Dkt. No. 42-1, at 15,
41). He has also experienced episodes of “fading out” and
dizziness, and he experiences “blackouts” twice each week
because of exposure to ETS. (Dkt. No. 42, at ¶¶ 80–81; Dkt.
No. 42-1, at 40; Dkt. No. 80-3, at 33).
The parties dispute whether Plaintiff ever properly submitted
grievances regarding ETS. Plaintiff testified that he filed two
grievances, and several follow-up letters seeking to appeal,
after he received no response to the grievances. Plaintiff
testified that he filed the first grievance on October 5, 2016 at
Clinton complaining of the “underenforcement of NYS non-
smoking policy.” (Dkt. No. 1-1, at 1; Dkt. No. 80-3, at 81–84)
(“October 5, 2016 grievance”). 5 On October 12, 2016, after
receiving no response, Plaintiff wrote to the IGRC Supervisor,
stating that he was appealing his grievance and attaching the
October 5, 2016 grievance. (Dkt. No. 1-1, at 2; Dkt. No. 80-3,
at 84–85). After he did not receive a response to this letter,
he wrote to the Superintendent of Clinton on October 21,
2016, again attaching his grievance, and requested that the
Superintendent “intervene in this matter.” (Dkt. No. 1-1, at 3;
Dkt. No. 80-3, at 84–85). Finally, after receiving no response
from the Superintendent, he wrote two letters on October
31, 2016 addressed to the State Commission of Corrections
in Albany: one to the attention of DOCCS Commissioner
Anthony Annucci, and one with the salutation “Dear IGRC
Administrator.” (Dkt. No. 1-1, at 4–7; Dkt. No. 80-3, at
86–87). Both letters stated that Plaintiff was appealing the
October 5, 2016 grievance. (Dkt. No. 1-1, at 6). In both
letters, Plaintiff asked that Clinton “conduct a survey for the
practicality of a non-smoking dormitory” in order to “avoid
further deterioration” of his health. (Dkt. No. 1-1, at 4–7). At
the end of the letter addressed to the “IGRC Administrator,”
Plaintiff wrote “CC: File” and listed the names of the five
Defendants in this case. (Id. at 6–7). Plaintiff testified that he
sent this to the five Defendants. (Dkt. No. 80-3, at 109).
Plaintiff testified that he submitted the second grievance on
February 11, 2017 at Clinton, by placing it in the appropriate
box (“February 11, 2017 grievance”). (Dkt. No. 1-1, at 12;
Dkt. No. 80-3, at 119). Plaintiff requested “a survey to
determine the compatibility of a non-smoking dormitory” at
the facility and attached to the grievance a “Proposal for
Non-Smoking Dormitory.” (Dkt. No. 1-1, at 13–19). After
receiving no response to this grievance, he wrote to the IGRC
Supervisor at Clinton on February 17, 2017, stating that he
was appealing his February 2017 grievance. (Dkt. No. 1-1, at
20; Dkt. No. 80-3, at 99). After receiving no response from
the IGRC Supervisor, Plaintiff wrote to the Superintendent
of Clinton on February 23, 2017, requesting a survey for a
non-smoking dormitory and enclosing his proposal; on the
subject line, Plaintiff wrote “grievance appeal.” (Dkt. No.
1-1, at 21; Dkt. No. 80-3, at 100–01). The Superintendent's
office stamped this letter as “received” on February 24, 2017.
(Dkt. No. 1-1, at 21). The Superintendent responded in a
memorandum dated February 24, 2017, advising Plaintiff to
“submit any grievances, or appeals directly to I.G.P. [Inmate
Grievance Program] office.” (Dkt. 80-3, at 102, 112–114). 6
Plaintiff testified that he did not submit his grievance to the
IGP, after receiving this response from the Superintendent,
because he had “already done it.” (Id. at 130).
*3 Plaintiff has submitted evidence that on April 19,
2017, he sent letters by regular mail to each of the
five Defendants who made up the Central Office Review
Committee (“CORC”) individually at their offices. (Dkt. No.
1-1, at 23–33; Dkt. No. 80-3, at 60). Plaintiff identified the
Defendants as CORC members because 7 NYCRR § 701.5
lists the position of each of the members of CORC, and the
name and contact information of the individuals currently
holding those positions were listed in the “2016-2017
Lawyer's Diary and Manual.” (Dkt. No. 109; Dkt. No 80-3,
at 58–60). In the letters, Plaintiff wrote that he was appealing
an attached February 11, 2017 grievance, and enclosed his
proposal for a non-smoking dormitory. (Dkt. No. 1-1, at 23–
33).
Defendants deny knowledge or receipt of any letters from
Plaintiff regarding ETS exposure. They contend that they
“never personally served as [ ] voting member[s] of CORC,”
because they had “multiple designees who were authorized
to act on [their] behalf that served on a rotating basis with
CORC.” (Dkt. No. 106-3, at 3 (Koenigsmann Declaration);
Dkt. No. 106-4, at 2 (Bellnier Declaration); Dkt. No. 106-5,
at 2 (McKoy Declaration); Dkt. No. 106-6, at 2 (Martuscello
Declaration); Dkt. No. 106-7, at 2 (Bruen Declaration)).
Defendants each deny ever “reviewing, investigating, or
responding to correspondence written by Plaintiff” or
“otherwise becoming aware of the subject matter of the
complaints alleged in this lawsuit.” (Dkt. No. 106-3, at 3; Dkt.
No. 106-4, at 2; Dkt. No. 106-5, at 2; Dkt. No. 106-6, at 2; Dkt.
No. 106-7, at 2). In his declaration, Defendant Koenigsmann
states that his office “routinely received several thousand
letters per year addressed to [him] from inmates in DOCCS
custody ... [t]he normal and ordinary procedure of the office
was for [his] administrative staff to review correspondence
and, based upon its content, determine which Division of
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Health Services official to whom the correspondence should
be forwarded.” (Dkt. No. 106-3, at 2).
Defendants assert that they were not “involved in the
enforcement of policies at Clinton,” and they “did not
personally enforce the anti-smoking policy at Clinton, or any
other facility, nor [were they] aware of any discrepancies
in its enforcement by facility staff.” (Dkt. No. 106-3, at
3; Dkt. No. 106-4, at 3; Dkt. No. 106-5, at 3; Dkt. No.
106-6, at 3; Dkt. No. 106-7, at 3). Defendant Koenigsmann
states that he worked “within the Division of Health Services
and [his] responsibilities included policy development and
implementation of medical policies and practices related to
the medical care.” (Dkt. No. 106-3, at 2). He asserts that
he “did not personally provide medical care to individual
inmates.” (Id.). Defendant Bellnier states in his declaration
that he was “charged with the overall operational and
security management, direction and oversight of over 60
DOCCS operated correctional facilities.” (Dkt. No. 106-4,
at 1). Defendant McKoy oversees the “programs and
services offered to incarcerated individuals to assist them in
redirecting their lives and becoming productive, law-abiding
members of society.” (Dkt. No. 106-5, at 2). Defendant
Martuscello asserts in his declaration that he “oversaw
the supervision of budget and finance, facilities planning,
personnel, support operations, nutritional services, and the
training academy.” (Dkt. No. 106-6, at 2). Defendant Bruen
“oversaw the Office of Counsel which provided legal support
and services to DOCCS.” (Dkt. No. 106-7, at 1). Therefore,
each Defendant describes DOCCS’ non-smoking policy as a
“facility level issue,” outside the purview of their supervisory
positions at DOCCS. (Dkt. No. 106-3, at 3; Dkt. No. 106-4,
at 3; Dkt. No. 106-5, at 3; Dkt. No. 106-6, at 3).
*4 The Defendants submitted evidence of searches in the
IGP and CORC databases, which show no record of a
grievance or appeal to CORC by Plaintiff regarding ETS.
(Dkt. Nos. 80-5 to 80-8 (containing copies of computer
printouts from the databases, and affidavits from the Assistant
Director of IGP and the IGP Supervisor at Clinton stating that
the computer searches demonstrate that they “did not receive,
nor ha[ve they] ever received” any grievances or appeals from
Plaintiff regarding ETS beginning in 2016)). 7
III. STANDARD OF REVIEW
Under Rule 56(a), summary judgment may be granted only
if all the submissions taken together “show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 323, 106 S.Ct. 2548. A fact is “material” if it
“might affect the outcome of the suit under the governing
law,” and is genuinely in dispute “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.
2005) (citing Anderson). The movant may meet this burden
by showing that the nonmoving party has “fail[ed] to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex, 477 U.S. at 322, 106
S.Ct. 2548; see also Selevan v. N.Y. Thruway Auth., 711 F.3d
253, 256 (2d Cir. 2013) (explaining that summary judgment
is appropriate where the nonmoving party fails to “ ‘come
forth with evidence sufficient to permit a reasonable juror to
return a verdict in his or her favor on’ an essential element of
a claim” (quoting In re Omnicom Grp., Inc. Sec. Litig., 597
F.3d 501, 509 (2d Cir. 2010))).
If the moving party meets this burden, the nonmoving party
must “set out specific facts showing a genuine issue for trial.”
Anderson, 477 U.S. at 248, 250, 106 S.Ct. 2505; see also
Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548; Wright v. Goord,
554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary
judgment motion, the district court must construe the facts in
the light most favorable to the non-moving party and must
resolve all ambiguities and draw all reasonable inferences
against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp.,
352 F.3d 775, 780 (2d Cir. 2003). Still, the nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot rely on “mere
speculation or conjecture as to the true nature of the facts to
overcome a motion for summary judgment,” Knight v. U.S.
Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (quoting Quarles
v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)).
Furthermore, “[m]ere conclusory allegations or denials ...
cannot by themselves create a genuine issue of material fact
where none would otherwise exist.” Hicks v. Baines, 593 F.3d
159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d
1451, 1456 (2d Cir. 1995)).
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*5 Where the plaintiff proceeds pro se, the Court must
read his submissions liberally and interpret them “to raise
the strongest arguments that they suggest.” McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos
v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, a
pro se party's “ ‘bald assertion,’ completely unsupported by
evidence, is not sufficient to overcome a motion for summary
judgment.” Jordan v. New York, 773 F. Supp. 2d 255, 268
(N.D.N.Y. 2010) (citing Carey v. Crescenzi, 923 F.2d 18, 21
(2d Cir. 1991)); see also Wagner v. Swarts, 827 F. Supp. 2d
85, 92 (N.D.N.Y. 2011).
IV. DISCUSSION
In the Amended Complaint, Plaintiff alleges that Defendants:
1) failed to “remedy the violation after learning” that
“Plaintiff was exposed to unreasonable high levels of
involuntary exposure to environmental tobacco smoke” from
Plaintiff's grievances, appeals and proposal regarding a
“non-smoking dormitory”; 2) exhibited “gross negligence of
supervisory control in managing prison officials/subordinates
with respect to underenforcement of non-smoking policy”;
and 3) “exhibited deliberate indifference to the right of
inmates by failing to act on information indicating that
unconstitutional acts were occurring.” (Dkt. No. 42, ¶ 58).
The sole issue before the Court is whether, in light of Tangreti,
Plaintiff has raised a material issue of fact as to Defendants’
personal involvement in these alleged violations of Plaintiff's
Eighth Amendment rights. “It is well settled in [the Second]
Circuit that 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) (internal quotations omitted). In Tangreti, the
Second Circuit recognized that, after Ashcroft v. Iqbal, there
is “no special test for supervisory liability.” 983 F.3d at
618 (citing Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009)). Instead, a plaintiff “must
plead and prove that each Government-official defendant,
through the official's own individual actions, has violated
the Constitution.” Id. Specifically, for Eighth Amendment
deliberate indifference claims, a plaintiff must show that the
prison official “kn[ew] of and disregard[ed] an excessive risk
to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.” Id. at 619 (internal quotations omitted). 8
There is evidence that Plaintiff cc'd each of the Defendants
in a letter Plaintiff wrote to the “State Commission of
Correction” on October 31, 2016. (Dkt. No. 1-1, at 6–7
(letter stating that it is an “appeal from a grievance” filed on
October 5, 2016 and requesting that Clinton “conduct a survey
to determine the feasibility of a Non-Smoking Dormitory”
because Plaintiff has “always been housed with inmates that
the majority were smokers”)). There is also evidence that
Plaintiff mailed letters to each Defendant individually on
April 19, 2017, stating that Plaintiff is “appealing a grievance
dated February 11, 2017” and attaching both his grievance
and Proposal. (Dkt. No. 1-1, at 23–33). In their declarations,
each Defendant states that he has no recollection of “ever
reviewing, investigating, or responding to correspondence
written by Plaintiff” and that he was not “aware of the subject
matter of the complaints alleged in this lawsuit prior to being
apprised of the existence of this litigation.” (Dkt. No. 106-3, ¶
12; Dkt. No. 106-4, ¶ 9; Dkt. No. 106-5, ¶ 9; Dkt. No. 106-6,
¶ 8; Dkt. No. 106-7, ¶ 9). Plaintiff does not offer any proof
that Defendants personally received his letters; nor does he
offer any evidence that Defendants responded to or otherwise
acted upon these letters.
*6 Even before Tangreti, receipt by a supervisory official of
a letter from an inmate, without more, has been insufficient
to establish the official's personal involvement in a § 1983
constitutional claim. Jones v. Annucci, No. 16-cv-3516, 2018
WL 910594, at *11–12, 2018 U.S. Dist. LEXIS 24359
(S.D.N.Y. Feb. 14, 2018) (noting that Acting Commissioner
of DOCCS Anthony Annucci's failure to respond to the
plaintiff's letter complaining of unconstitutional conduct,
“without more, does not plausibly allege his personal
involvement” and citing cases); Cole v. New York State Dep't
of Corr. & Cmty. Supervision, No. 14-cv-0539, 2016 WL
5394752, at *29, 2016 U.S. Dist. LEXIS 114872 (N.D.N.Y.
Aug. 25, 2016) (“[E]ven assuming [a prison official] received
plaintiff's letters, [the official's] failure to respond to them is
not sufficient to give rise to personal involvement under §
1983.”), report and recommendation adopted by 2016 WL
5374125, 2016 U.S. Dist. LEXIS 130962 (N.D.N.Y. Sept.
26, 2016); Houston v. Schiroro, No. 11-cv-7374, 2014 WL
6694468, at *14, 2014 U.S. Dist. LEXIS 165409 (S.D.N.Y.
Nov. 26, 2014) (“[R]eceipt of a grievance does not constitute
personal involvement.”); Walker v. Pataro, No. 99-cv-4607,
2002 WL 664040, at *12, 2002 U.S. Dist. LEXIS 7067
(S.D.N.Y. Apr. 23, 2002) (“[W]here a supervisory official
like the Commissioner of Corrections ... receives letters or
similar complaints from an inmate and does not personally
respond, the supervisor is not personally involved and hence
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not liable. On the other hand, where a supervisor receives an
inmate grievance or other complaint and responds to it, the
supervisor may be liable ... the Commissioner and individual
prison Superintendents receive innumerable letters and other
forms of inmate complaints and delegate subordinates to
handle them ... Thus, if mere receipt of a letter or similar
complaint were enough, without more, to constitute personal
involvement, it would result in liability merely for being a
supervisor, which is contrary to the black-letter law that §
1983 does not impose respondeat superior liability.”).
Here, even assuming the Defendants received Plaintiff's
mailings, and failed to act, such evidence would be
insufficient to establish personal involvement. See Smart v.
Annucci, No. 19-cv-7908, 2021 WL 260105, at *5, 2021
U.S. Dist. LEXIS 14339 (S.D.N.Y. Jan. 26, 2021) (“That
[Defendants] failed to act on Plaintiff's complaints ... cannot
support the inference that these Defendants, through ‘[their]
own individual actions, [have] violated the Constitution.’
”). 9
Plaintiff further contends that Defendants were aware
of Plaintiff's complaints by virtue of their positions as
voting members of CORC. (Dkt. No. 110, at 3–4).
Defendants deny that CORC “received or decided any
grievance appeals related to Braxton's underlying allegations
in this case related to second-hand smoke.” (Dkt. No.
106-1, at 5). However, again, even assuming that the
Plaintiff's submissions were received by the Defendant
individual CORC members, Plaintiff has failed to establish
the individual Defendant's personal involvement. Each
Defendant avers in his declaration he never personally served
as a voting member of CORC and instead had designees
serve on the committee in his place. (Dkt. No. 106-1, at
5; Dkt. No. 106-3, at 3; Dkt. No. 106-4, at 2; Dkt. No.
106-5, at 2; Dkt. No. 106-6, at 2; Dkt. No. 106-7, at 2).
Without more, there is no basis for finding Defendants’
deliberate indifference. 10 Cf. Eldridge v. Williams, No. 10-
cv-0423, 2013 WL 4005499, at *6, 2013 U.S. Dist. LEXIS
107555 (S.D.N.Y. July 30, 2013) (finding sufficient evidence
to establish the Deputy Superintendent for Health's personal
liability when he received a letter from a plaintiff asserting
that doctors had “threatened” to place her in a special
housing unit to “provide her with a smoke-free environment”
because of her “asthmatic condition,” and he responded to
the plaintiff's letter, but “allegedly failed to subsequently
ensure that [she] would be able to live in a smoke-free
environment”).
*7 Plaintiff argues that each Defendant was “ ‘aware’ of
the general issue of (‘ETS’)” based on 1) the enactment of
prison anti-smoking policies which reflects a “recognition”
on the part of DOCCS officials of the need to protect
inmates from ETS; and 2) the U.S. Surgeon General's “notice
of the dangers of ETS.” (Dkt. No. 109, at 4). However,
Plaintiff's allegations regarding general knowledge of prison
policies or warnings issued by the U.S. Surgeon General,
are insufficient to demonstrate personal involvement under §
1983. See Kravitz v. Leis, No. 17-cv-600, 2019 WL 1332774,
at *8, 2019 U.S. Dist. LEXIS 22714 (N.D.N.Y. Feb. 11,
2019) (finding the defendant's “general knowledge” of the
plaintiff's religious affiliation “insufficient to demonstrate
personal involvement,” explaining that “in order to prevail
on a § 1983 cause of action ... a plaintiff must show some
‘tangible connection’ between the unlawful conduct and the
defendant” (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d
Cir. 1986)), report and recommendation adopted by 2019 WL
1331999, 2019 U.S. Dist. LEXIS 48592 (N.D.N.Y. Mar. 25,
2019)).
In support of his argument that Defendants were personally
involved in the alleged constitutional violation, Plaintiff cites
Scott v. Hollins, where, he claims, Defendant Bellnier 11 was
found to be “ ‘ ‘aware’ of the general issue of (‘ETS’) and
[to have] allowed the continuation of a smoking policy that
violated Plaintiff's Eighth Amendment rights.’ ” (Dkt. No.
109, at 4 (citing No. 96-cv-0351, 2006 WL 1994757, at *7,
2006 U.S. Dist. LEXIS 47998 (W.D.N.Y. July 14, 2006))). 12
That another court may have found that there was evidence
that Defendant Bellnier was aware of the “general issue
of ETS exposure in the [Livingston Correctional Facilities]
dormitories” in the mid-1990s, and of that “plaintiff's specific
concerns of ETS exposure,” and challenge to the smoking
policy, 2006 WL 1994757, at *1, 7, 2006 U.S. Dist.
LEXIS 47998 (emphasis added), is insufficient to establish
Defendant Bellnier's personal involvement in Plaintiff's case.
Moreover, there is no evidence in the record that any of
the Defendants were aware of the general issue of smoke
exposure at Downstate or Clinton or of Plaintiff's specific
concerns regarding ETS.
Plaintiff also contends that Defendants had the “remedial
authority to alleviate his exposure to ETS because CORC
decisions have the effect of directives, which must be
implemented by the facility to which they apply.” (Dkt.
No. 109, at 4–16). However, without evidence of subjective
knowledge, the power to remedy a violation is not enough
to establish personal involvement in a deliberate indifference
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claim. See Tangreti, 983 F.3d at 619 (requiring that a prison
supervisor “know[ ] of and disregard an excessive risk
to inmate health or safety”). Because, as discussed above,
Plaintiff has not established that Defendants knew of his
ETS concerns, evidence that Defendants may have had the
authority to provide a remedy, is not sufficient to establish
personal involvement.
*8 Therefore, having found no genuine issue of material fact
as to any Defendant's personal involvement, the Court finds
that Defendants are entitled to summary judgment.
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ supplemental motion for
summary judgment (Dkt. No. 106) is GRANTED; and it is
further
ORDERED that the Amended Complaint (Dkt. No. 42) is
DISMISSED with prejudice; and it is further
ORDERED that the Clerk of the Court is directed to close
this case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 4950257
Footnotes
1 The record indicates that Plaintiff identifies as gender non-conforming and alternates between using the
pronouns “he” and “she.” (See, e.g., Dkt. No. 42, at ¶¶ 14 (“Plaintiff stated he was gender non-conforming”),
31 (“Plaintiff notified Superintendent that she was afraid for her safety”)). As Plaintiff used “he” in his
memorandum of law in opposition to the present motion for summary judgment, (Dkt. No. 109), the Court
will follow suit.
2 The operative pleading is Plaintiff's Amended Complaint, (Dkt. No. 42), as modified by the Court's November
15, 2018 Decision and Order, (Dkt. No. 41), which denied the inclusion of new Eighth Amendment claims
against new defendants unrelated to Plaintiff's exposure to second-hand smoke, (id. at 8).
3 The Clerk is respectfully requested to correct the spelling on the docket for Defendant Bellnier, who was
named in the Amended Complaint as “Belinier,” but who signed his affidavit “Bellnier.” (Dkt. Nos. 42, 106-4).
4 The underlying facts are set forth in Magistrate Judge Lovric's Report-Recommendation. (Dkt. No. 88). The
Court assumes familiarity with those facts, which are incorporated herein, and recounts additional facts,
which are relevant to the personal involvement determination, as necessary. Plaintiff failed to respond to
Defendants’ Statement of Material Facts, (Dkt No. 106-2), with a response mirroring their assertions, and
admitting or denying each assertion, as required by Local Rule 56.1(b). The Court has, in its discretion opted
to overlook Plaintiff's violation of the local rules and conducted a review of the entire record. See Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001). The facts are construed in the light most favorable to
Plaintiff as the non-moving party. Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).
5 Plaintiff attached as exhibits to the complaint the two grievances, as well as several follow-up letters. (Dkt.
1-1).
6 The memorandum from the Supervisor is not included in the record, although it appears that the Defendants
produced it to Plaintiff in discovery. (Dkt. No. 80-3, at 102).
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7 The Assistant Director of the Inmate Grievance Program explained, in a declaration submitted in support of
the motion for summary judgment, that the inmate grievance process involves three steps: First, the inmate
must “file a complaint with the IGRC”; “if the inmate is dissatisfied with the IGRC recommendation, the inmate
may appeal it to the Superintendent of the facility,” and “must [ ] submit[ ] the request directly to the IGRC at
the facility”; finally, “if dissatisfied with the Superintendent's response, the inmate may appeal the decision to
CORC [the Central Office Review Committee]”, and [t]he request to appeal to CORC must also be submitted
directly to the IGRC at the facility ... for forwarding to CORC.” (Dkt. No. 80-5, at 2–3).
8 Plaintiff also alleged “gross negligence of supervisory control in managing prison officials/subordinates with
respect to underenforcement of non-smoking policy.” (Dkt. No. 42, ¶ 58). Although negligent supervision was
one of the ways under Colon for establishing personal involvement in a constitutional violation under § 1983,
after Tangreti, Plaintiff must prove that the individual Defendants themselves showed deliberate indifference.
See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
9 Plaintiff and Defendants disagree about the significance of Johnson v. Fischer, No. 12-cv-0210, 2015 WL
670429, 2014 U.S. Dist. LEXIS 182153 (N.D.N.Y. Aug. 5, 2014), report and recommendation adopted by No.
12-cv-0210, 2015 WL 670429, 2015 U.S. Dist. LEXIS 18601 (N.D.N.Y. Feb. 17, 2015). In that case, the Court
found no triable issue as to the personal involvement of the DOCCS Commissioner, who was allegedly a
member of the CORC panel, because “there [was] no evidence in the record that [the Commissioner] reviewed
Plaintiff's grievances about the smoking issue or that he was made aware of the alleged violations of the
smoking policy,” and “Plaintiff's mere belief that [the Commissioner] reviewed his grievances [was] insufficient
to establish [his] personal involvement.” Id. at 2015 WL 670429, at *7, 2014 U.S. Dist. LEXIS 182153.
Plaintiff distinguishes this case from Johnson, arguing that while in Johnson there was “no evidence” that the
Defendant Commissioner “reviewed Plaintiff's grievance,” here “Plaintiff mailed his grievance ‘independently,’
‘separately’ ‘particularly’ ” to the Defendants. (Dkt. No. 109, ¶¶ 5, 9, 15, 21). However, in Johnson, the CORC
had reviewed and denied the Plaintiff's grievance, but because the CORC decision was unsigned, there was
“no evidence” that the Defendant had personally reviewed the grievances. 2015 WL 670429, at *7, 2014 U.S.
Dist. LEXIS 182153. This is, in fact, analogous to the case at hand; while the evidence supports that Plaintiff
mailed letters to Defendants, the evidence does not support that Defendants personally reviewed the letters.
10 In the Report-Recommendation, the Magistrate Judge considered whether liability could be premised on
the Defendants’ grossly negligent supervision of others, and concluded that Defendants failed to establish
their entitlement to judgment as a matter of law where Defendants did not confirm or deny receipt of the
letters and “failed to produce any documentary evidence or sworn affidavits/testimony demonstrating the
absence of genuine issues of material fact.” (Dkt. No. 88, at 27–28). Because the standard for personal
involvement post-Tangreti requires a showing “that each Government-official defendant, through the official's
own individual actions, has violated the Constitution,” 983 F.3d at 618, and Defendants have now each filed
declarations, the Court reaches a different conclusion.
11 In Scott v. Hollins, there is a defendant named “Belliner,” who was Superintendent of Livingston Correctional
Facility. No. 96-cv-0351, 2006 WL 1994757, at *7, 2006 U.S. Dist. LEXIS 47998 (W.D.N.Y. July 14, 2006).
There is no evidence that Belliner and Defendant Bellnier in this case, are the same. Even if they are, however,
Plaintiff's argument is without merit for the reasons discussed above.
12 Plaintiff cites Denis v. N.Y.S. Department of Correctional Services, where, Plaintiff claims, Defendant McKoy
was also named as a defendant in connection with a DOCCS inmate's ETS deliberate indifference to serious
medical needs claim. (Dkt. No. 109, at 14 (citing Denis v. N.Y.S. Dep't of Corr. Servs., No. 05-cv-4495, 2006
WL 217926, at *1–2, 2006 U.S. Dist. LEXIS 3118 (S.D.N.Y. Jan. 30, 2006), report and recommendation
adopted by 2006 WL 406313 (S.D.N.Y. Feb. 22, 2006))). In Denis, the defendant was “Joseph McCoy,” 2006
WL 217926, at *1, 2006 U.S. Dist. LEXIS 3118 at *1, here the named defendant is “Jeff McKoy.” (Dkt. No.
42, at 1). There is, therefore, no basis on which to conclude the defendants were the same. Moreover, as
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Plaintiff notes, in Denis, defendant McCoy was dismissed on statute of limitations grounds. (Dkt. No. 109,
at 15 (citing Denis, 2006 WL 217926, at *11, 2006 U.S. Dist. LEXIS 3118)). Thus, Plaintiff's citation of this
case is wholly unavailing.
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Braxton v. Bruen, Not Reported in Fed. Rptr. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 7478331
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Benjamin BRAXTON, aka Obed-
Edom Braxton, Plaintiff-Appellant,
v.
Kevin BRUEN, Deputy Commissioner of Counsel,
Jeff McKoy, Deputy Commissioner of Program
Services, Joseph Bellnier, Deputy Commissioner
of Facility Operations, Daniel F. Martuscello, III,
Deputy Commissioner of Administrative Services,
Carl J. Koenigsmann, Deputy Commissioner
Chief Medical Officer, Defendants-Appellees,
Superintendent Bell, Clinton Correctional Facility,
Seargeant Holland, Clinton Correctional Facility,
Seargeant Marion, Clinton Correctional Facility,
S. Devlin Varin, FNPL LIC#0499, Defendants.
21-2795
|
November 13, 2023
Appeal from a judgment of the United States District Court
for the Northern District of New York (Sannes, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is VACATED and
REMANDED to the district court for further proceedings
consistent with this order.
Attorneys and Law Firms
For Plaintiff-Appellant: Lauren Crane and Abigail Grise,
Rule 46.1(e) Law Students (Rachel Leung, Alec Wong, on the
brief), Jonathan Romberg, of Counsel, Seton Hall University
School of Law Center for Social Justice, Newark, NJ.
For Defendants-Appellees: Sarah L. Rosenbluth, Assistant
Solicitor General, of Counsel (Barbara D. Underwood,
Solicitor General, Andrea Oser, Deputy Solicitor General, on
the brief) on behalf of Letitia James, Attorney General of the
State of New York, Buffalo, NY.
Present: Debra Ann Livingston, Chief Judge, Barrington D.
Parker, William J. Nardini, Circuit Judges
SUMMARY ORDER
*1 Plaintiff-Appellant Benjamin Braxton appeals from the
October 25, 2021, judgment of the United States District
Court for the Northern District of New York (Sannes,
J.), granting Defendants-Appellees’ summary judgment
motion and dismissing his claim, brought pursuant to
42 U.S.C. § 1983, that Defendants-Appellees acted with
deliberate indifference to his medical needs in violation
of the Eighth Amendment. Braxton was incarcerated in
Clinton Correctional Facility (“Clinton”), a New York State
Department of Corrections and Community Supervision
(“DOCCS”) facility, where he alleges he was exposed to high
levels of environmental tobacco smoke (“ETS”) caused by
indoor smoking in violation of DOCCS policy. 1 Defendants-
Appellees are members of DOCCS's Central Office Review
Committee (“CORC”), the entity responsible for handling
inmate grievance appeals, who allegedly failed to respond
to letters that Braxton sent to them about his ETS exposure.
Braxton argues on appeal that the district court abused
its discretion by permitting Defendants-Appellees to file a
renewed motion for summary judgment and by ultimately
granting the motion. 2 Braxton additionally argues that the
district court abused its discretion by: (1) failing to reopen
discovery; and (2) denying Braxton's motion to amend
the complaint to add Clinton Superintendent Earl Bell as
a defendant. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the
issues on appeal.
I. The Renewed Motion for Summary Judgment
At the start, we discern no abuse of discretion in the district
court's determination to reconsider its summary judgment
ruling in light of this Court's decision in Tangreti. Between
the denial of the initial motion for summary judgment on
September 25, 2020—in which the district court applied
the standards for supervisory liability set forth in Colon v.
Coughlin, 58 F.3d 865 (2d Cir. 1995)—and the renewed
motion for summary judgment on March 30, 2021, this Court
clarified in Tangreti that plaintiffs “may not rely on a special
test for supervisory liability,” such as the gross negligence
standard articulated in Colon, but rather must “plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.” 983 F.3d at
616 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). The
district court accordingly reconsidered its summary judgment
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decision in light of Tangreti. To do so was entirely proper in
the circumstances of this case.
*2 As to the merits, Braxton argues that the district
court erred in granting summary judgment to Defendants-
Appellees because he raised triable issues of fact as to their
personal involvement in the constitutional violations that are
the basis for his claim. 3 We disagree. Deliberate indifference
in the context of Braxton's Eighth Amendment claim requires
that an official “know of and disregard an excessive risk
to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.” Tangreti, 983 F.3d at 619 (cleaned up).
Here, there is no evidence that the Defendants-Appellees were
personally involved in the alleged constitutional violations
or were aware of any substantial risk to Braxton's health.
See Provost v. City of Newburgh, 262 F.3d 146, 154 (2d
Cir. 2001) (noting that “[p]ersonal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983”) (quoting Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994)). Defendants-Appellees have
averred that they never saw Braxton's grievances, did not
personally serve on the CORC (but designated someone else
to serve in their stead), and were not personally involved in the
enforcement of the smoking policies as related to Braxton's
allegations.
We nevertheless conclude that in the circumstances of this
case, it was premature for the district court to grant summary
judgment in favor of Defendants-Appellees without first
permitting Braxton an opportunity for additional discovery.
Throughout this litigation, Braxton's theory of liability
has been that the CORC members were made aware of
his conditions of confinement through his letters to them
and failed to take action to remedy what they knew
to be unconstitutional conditions. For the first time at
the renewed motion for summary judgment, Defendants-
Appellees averred that they did not personally serve on the
CORC but had delegated others to do so. The identities of
these delegates were not available to Braxton beforehand and
are still unknown. In such circumstances, Braxton, who was
proceeding pro se, should have been afforded the opportunity
through at least brief discovery to identify the subordinate
officers who may have received his letters. As we stated in
Davis v. Kelly:
[W]hen a pro se plaintiff brings a
colorable claim against supervisory
personnel, and those supervisory
personnel respond with a dispositive
motion grounded in the plaintiff's
failure to identify the individuals
who were personally involved, under
circumstances in which the plaintiff
would not have been expected to
have that knowledge, dismissal should
not occur without an opportunity for
additional discovery.
160 F.3d 917, 922 (2d Cir. 1998). After this opportunity for
discovery, as Davis also teaches, “undisputed allegations that
the [Defendants-Appellees] lacked personal involvement will
ultimately suffice to dismiss” them from the case. Id. at 921.
Accordingly, we vacate the grant of summary judgment and
remand to the district court to reopen discovery as to the
identities of the CORC designees and the circumstances of
their designation.
II. Amending the Complaint to Join Superintendent
Bell
Braxton next argues that the district court improperly
prevented him from amending his complaint to add
Superintendent Bell as a defendant. “We review the district
court's denial of leave to amend for abuse of discretion.”
Broidy Cap. Mgmt. LLC v. Benomar, 944 F.3d 436, 447 (2d
Cir. 2019) (quotation marks and citation omitted).
*3 Here, the district court did not construe the proposed
amended complaint to assert an ETS claim against
Superintendent Bell. Ordinarily, this would not be an abuse
of discretion because the district court made no error of law,
nor did it make a clearly erroneous assessment of the facts
when it determined that the amended complaint only raised
claims against Superintendent Bell with respect to an alleged
assault, 4 not the ETS exposure. Knife Rights, Inc. v. Vance,
802 F.3d 377, 389 (2d Cir. 2015) (noting that “ordinarily we
will not identify [an abuse of discretion] absent an error of
law, a clearly erroneous assessment of the facts, or a decision
outside the available range of permitted choices”). At oral
argument, however, the State, recognizing the serious nature
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of Braxton's allegations, agreed with the Court that it would
like to be apprised of the situation at Clinton regarding ETS
and suggested that “one possible route would be to remand
for service on Bell.” Oral Arg. 39:06–40:17. In this unusual
posture, we remand for amendment of the complaint to join
Superintendent Bell as a defendant to Braxton's ETS claim
and for service on him.
* * *
We have considered Braxton's remaining arguments and
find them to be without merit, with one significant proviso.
Braxton argues that the district court abused its discretion
by “failing to direct pro bono counsel ... to assist [him] in
responding” to the renewed motion for summary judgment.
Braxton Br. 66. We disagree that the district court's decision
arose to an abuse of discretion.
Nonetheless, we pause to reiterate that during oral argument
the State attested to the need to discover the facts
regarding ETS at Clinton. We have no doubt given this
representation that Braxton meets the threshold requirements
for appointment of pro bono counsel, that counsel would
aid him in “investigat[ing] the crucial facts,” and that
“appointment of counsel would be more likely to lead to a
just determination.” See Hodge v. Police Officers, 802 F.2d
58, 61–62 (2d Cir. 1986). In such circumstances, the interests
of justice will best be served if pro bono counsel is available
to assist Braxton on remand. Per 28 U.S.C. § 2106, this Court
may “direct the entry of such appropriate judgment, decree,
or order, or require such further proceedings to be had as
may be just under the circumstances.” Under that authority,
on remand, the district court shall appoint Victor L. Hou of
Cleary Gottlieb Steen & Hamilton LLP as pro bono counsel.
Accordingly, we VACATE the judgment of the district court
and REMAND the case for further proceedings consistent
with this order.
All Citations
Not Reported in Fed. Rptr., 2023 WL 7478331
Footnotes
1 Braxton is gender non-conforming and has used different pronouns in different filings. Because his counsel
uses male pronouns in their brief, we do, as well.
2 Defendants-Appellees’ initial motion for summary judgment was denied. After this Court's opinion in Tangreti
v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the motion, supported with additional affidavits, was renewed
and subsequently granted.
3 We review the district court's determination de novo, “construing the evidence in the light most favorable to
the party against whom summary judgment was granted and drawing all reasonable inferences in that party's
favor.” Bey v. City of New York, 999 F.3d 157, 164 (2d Cir. 2021); see also Macfarlane v. Canadian Pac. Ry.
Co., 278 F.3d 54, 56–57 (2d Cir. 2002) (discussing renewed summary judgment motion). Summary judgment
is proper when there is “no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Truitt v. Salisbury Bank & Tr. Co., 52 F.4th 80, 85 (2d Cir. 2022) (quoting McElwee v.
Cnty of Orange, 700 F.3d 635, 640 (2d Cir. 2012)).
4 We agree with the district court as to its conclusion not to permit amendment to add these unrelated claims.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Brik v. Brodie, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4373557
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Roman BRIK, Plaintiff,
v.
Margo K. BRODIE; Ann M. Donnelly, Defendants.
23-CV-4330 (LJL)
|
Signed July 5, 2023
|
Filed July 6, 2023
Attorneys and Law Firms
Roman Brik, Staten Island, NY, Pro Se.
MEMORANDUM & ORDER OF SERVICE
LEWIS J. LIMAN, United States District Judge:
*1 Plaintiff, who is appearing pro se, seeks declaratory and
injunctive relief in this action against Chief United States
District Judge Margo K. Brodie and District Judge Ann M.
Donnelly. By order dated July 5, 2023, the Court granted
Plaintiff's request to proceed in forma pauperis (IFP), that is,
without prepayment of fees.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or
any portion of the complaint, that is frivolous or malicious,
fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
The Court must also dismiss a complaint when the Court lacks
subject matter jurisdiction of the claims raised. See Fed. R.
Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the
Court is obliged to construe pro se pleadings liberally, Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them
to raise the “strongest [claims] that they suggest,” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at
475 (citation omitted), has its limits – to state a claim, pro se
pleadings still must comply with Rule 8 of the Federal Rules
of Civil Procedure, which requires a complaint to make a short
and plain statement showing that the pleader is entitled to
relief.
Rule 8 requires a complaint to include enough facts to state
a claim for relief “that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
facially plausible if the plaintiff pleads enough factual detail
to allow the Court to draw the inference that the defendant is
liable for the alleged misconduct. In reviewing the complaint,
the Court must accept all well-pleaded factual allegations as
true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it
does not have to accept as true “[t]hreadbare recitals of the
elements of a cause of action,” which are essentially just legal
conclusions. Twombly, 550 U.S. at 555. After separating legal
conclusions from well-pleaded factual allegations, the Court
must determine whether those facts make it plausible – not
merely possible – that the pleader is entitled to relief. Id.
DISCUSSION
A. Claims against District Judge Ann M. Donnelly
Plaintiff alleges that District Judge Ann M. Donnelly's actions
in his cases before her violated his constitutional rights. He
seeks a declaratory judgment that her actions in those cases
were unlawful and violated his constitutional rights to due
process and equal protection and an injunction enjoining
Judge Donnelly from retaliating against him. (ECF 1 at 4.)
“[J]udicial immunity does not bar a claim for prospective
injunctive and declaratory relief.” Shtrauch v. Dowd, 651 F.
App'x 72, 73 (2d Cir. 2016) (citing Pulliam v. Allen, 466 U.S.
522, 541-43 (1984)). Nevertheless, Plaintiff is not entitled
to declaratory relief for his claims against Judge Donnelly
because he seeks such relief based on her past conduct. See id.
at 74 (holding that the plaintiff was not entitled to declaratory
relief because he alleged “only past conduct and does not
seek to prevent an ongoing or future violation of federal
law” (relying on Blanciak v. Allegheny Ludlum Corp., 77 F.3d
690, 698 (3d Cir. 1996))).
*2 Plaintiff does suggest that Judge Donnelly will retaliate
against him in the future for his exercise of his First
Amendment rights. Even if, under the assignment rules,
Plaintiff's future cases are assigned to Judge Donnelly as
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related to another open case before her, he does not allege a
“present, continuing violation of federal law,” Blanciak, 77
F.3d at 698, and there is no reason to assume that she would
violate his rights in the future. Because Plaintiff thus does
not seek to remedy a harm that is truly prospective, he does
show any entitlement to declaratory relief. Plaintiff's remedy
for any alleged bias on the part of Judge Donnelly in her
judicial decisions is an appeal. See LeDuc v. Tilley, No. 05-
CV-0157, 2005 WL 1475334, at *7 (D. Conn. June 22, 2005)
(“[D]eclaratory relief against a judge for actions taken within
his or her judicial capacity is ordinarily available by appealing
the judge's order.”).
The Court therefore dismisses Plaintiff's claims for
declaratory and injunctive relief against Judge Donnelly for
failure to state a claim on which relief can be granted.
B. Challenge to Rule 3 of the Rules for the Division of
Business Among Judges
Plaintiff seeks a declaration that assignment of pro se cases,
under the Rules for the Division of Business for the Eastern
District of New York, violates his constitutional rights. He can
also be understood as seeking to enjoin enforcement of the
relevant rules. Because Plaintiff has been granted permission
to proceed IFP, he is entitled to rely on the Court and the U.S.
Marshals Service to effect service. 1 Walker v. Schult, 717
F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d)
(“The officers of the court shall issue and serve all process ...
in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order
the Marshals Service to serve if the plaintiff is authorized to
proceed IFP).
To allow Plaintiff to effect service on Defendant Chief United
States District Judge Margo K. Brodie through the U.S.
Marshals Service, the Clerk of Court is instructed to fill
out a U.S. Marshals Service Process Receipt and Return
form (“USM-285 form”) for this Defendant. The Clerk of
Court is further instructed to issue a summons and deliver
to the Marshals Service all the paperwork necessary for the
Marshals Service to effect service upon Defendant.
If the complaint is not served within 90 days after the date the
summonses are issued, Plaintiff should request an extension
of time for service. See Meilleur v. Strong, 682 F.3d 56, 63
(2d Cir. 2012) (holding that it is the plaintiff's responsibility to
request an extension of time for service). Plaintiff must notify
the Court in writing if his address changes, and the Court may
dismiss the action if Plaintiff fails to do so.
CONCLUSION
Plaintiff's claim for declaratory and injunctive relief against
District Judge Ann M. Donnelly is dismissed.
The Clerk of Court is instructed to (1) send an information
package to Plaintiff; and (2) issue a summons for Chief
United States District Judge Margo K. Brodie, complete the
USM-285 form with the address for this defendant, and
deliver to the U.S. Marshals Service all documents necessary
to effect service.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose
of an appeal. Cf. Coppedge v. United States, 369 U.S. 438,
444-45 (1962) (holding that an appellant demonstrates good
faith when he seeks review of a nonfrivolous issue).
*3 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 4373557
Footnotes
1 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served
within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have effected service
until the Court reviewed the complaint and ordered that the summons be issued. The Court therefore extends
the time to serve until 90 days after the date the summons is issued.
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Brown v. Montone, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 2976023
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Antoinette BROWN, Plaintiff,
v.
Deputy MONTONE; Dr. Choundry; Dr.
Roth; and Nurse Vargas, Defendants.
No. 17-CV-4618 (KMK)
|
Signed 06/12/2018
|
Filed 06/13/2018
Attorneys and Law Firms
Antoinette Brown, Bedford Hills, NY, pro se.
Janice Powers, Esq., New York State Office of the Attorney
General, White Plains, NY, Counsel for Defendants.
OPINION & ORDER
KENNETH M. KARAS, United States District Judge
*1 Pro se Plaintiff Antoinette Brown (“Plaintiff”), currently
an inmate at Bedford Hills Correctional Facility (“Bedford
Hills”), brings this Action, pursuant to 42 U.S.C. § 1983,
against Deputy Montone (“Montone”), Dr. Choundry, Dr.
Roth, and Nurse Vargas (collectively, “Defendants”). Plaintiff
alleges that Defendants violated her rights under the Eighth
Amendment by failing to provide her with proper medical
care to treat an infected cyst and by placing her in a cold
room after surgery. (See Compl. 2–3 (Dkt. No. 2).) 1 Before
the Court is Defendants' Motion To Dismiss the Complaint
pursuant to Federal Rules of Civil Procedure 12(b)(6) and
41(b). (See Defs.' Mot. To Dismiss (“Defs.' Mot.”) (Dkt. No.
16).) For the reasons to follow, the Rule 12(b)(6) Motion is
granted.
I. Background
A. Factual Background
The following facts are taken from the Complaint, and are
assumed true for the purpose of resolving the Motion.
In May 2015, Plaintiff was transferred to Bedford Hills
from Albion Correctional Facility. (See Compl. 2–3.) Plaintiff
claims that at the time she was transferred to Bedford
Hills, her left breast was already infected, with what was
ultimately determined to be an infected cyst, for one year.
(See id. at 3.) While at Bedford Hills, Plaintiff's breast
remained infected for one year prior to her receiving an
operation. (See id.) Specifically, on October 3, 2016, Dr.
Roth operated on Plaintiff's left breast to treat the infection.
(See id.) Afterwards, “they placed [Plaintiff] in a freezing
cold infirmary room w[ith] [six] cold vents w[ith] air
duc[t]s blowing cold air.” (Id.) “[T]heir excuse” for the cold
temperature was that the heat did not come on until October
10. (Id.) In lieu of turning on the heat, Plaintiff was given
“[six] blankets [and] [three] sets of clothing” to keep warm.
(Id.) Plaintiff alleges that the “other [doctor] that runs the
infirmary” and unnamed C.O.’s, none of whom is a defendant
here, “saw and knew [Plaintiff] was cold.” (Id.)
Dr. Choundry, “[Plaintiff's] medical doctor,” treated her for a
year, though it is not clear whether this was before or after
the surgery. (Id.) According to Plaintiff, Dr. Choundry “often
squeezed ‘pus[s] and blood’ from this breast[,] documented it
in [Plaintiff's] chart[,] but did nothing to get [Plaintiff] to a[n]
outside hospital for surgery.” (Id.)
Plaintiff also alleges that, at some unspecified point in time,
she went to “the clinic” and told “Nurse Vargas that [she] had
a ‘salty’ taste in [her] mouth.” (Id.) Nurse Vargas then told
Plaintiff to “go back[,] lay down[,] and drink water.” (Id.) The
next day, Plaintiff was brought back to the medical unit and
placed in the infirmary with “a f/s over 500.” 2 (Id.) Plaintiff
then “had a mild stroke” and Bell's palsy. (Id.)
B. Procedural History
*2 Plaintiff filed her Complaint on June 15, 2017. (See
Dkt. No. 2.) Plaintiff's request to proceed in forma pauperis
was granted on July 24, 2017. (See Dkt. No. 6.) On October
23, 2017, counsel for all Defendants submitted a letter
to the Court requesting permission to file a Motion To
Dismiss on behalf Defendants pursuant to Federal Rules of
Civil Procedure 12(b)(6) and 41(b). (See Letter from Janice
Powers, Esq., to Court (Dkt. No. 12).) On October 24, 2017,
the Court entered an Order that Defendants could file their
Motion To Dismiss by November 22, 2017, and Plaintiff
should respond to any Motion by December 22, 2017. (See
Mot. Scheduling Order (Dkt. No. 15).)
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On November 22, 2017, Defendants filed their Motion To
Dismiss and accompanying papers. (See Dkt. Nos. 16–
17.) Plaintiff did not file any opposition to the Motion.
The Court will therefore consider the Motion fully briefed,
but independently consider the merits of the Motion. See
Goldberg v. Danaher, 599 F.3d 181, 183 (2d Cir. 2010)
(explaining that district courts should consider the merits of a
motion to dismiss rather than automatically grant the motion
if a plaintiff fails to respond).
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint
“does not need detailed factual allegations” to survive a
motion to dismiss, “a plaintiff's obligation to provide the
grounds of h[er] entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (alteration and internal
quotation marks omitted). Indeed, Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (alteration and internal quotation marks
omitted). Rather, a complaint's “[f]actual allegations must be
enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Although “once a claim has been
stated adequately, it may be supported by showing any set
of facts consistent with the allegations in the complaint,”
id. at 563, and a plaintiff must allege “only enough facts to
state a claim to relief that is plausible on its face,” id. at
570, if a plaintiff has not “nudged [his] claim[ ] across the
line from conceivable to plausible, the[ ] complaint must be
dismissed,” id.; see also Iqbal, 556 U.S. 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. But
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.’ ” (second alteration in original) (citation
omitted) (quoting Fed. R. Civ. P. 8(a)(2) ) ); id. at 678–79
(“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it
does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.”).
“[W]hen ruling on a defendant's motion to dismiss, a judge
must accept as true all of the factual allegations contained in
the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam), and “draw[ ] all reasonable inferences in favor
of the plaintiff,” Daniel v. T&M Prot. Res., Inc., 992 F. Supp.
2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's
Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012) ). Additionally,
“[i]n adjudicating a Rule 12(b)(6) motion, a district court
must confine its consideration to facts stated on the face of
the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters
of which judicial notice may be taken.” Leonard F. v. Isr.
Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal
quotation marks omitted); see also Wang v. Palmisano, 157 F.
Supp. 3d 306, 317 (S.D.N.Y. 2016) (same).
*3 Where, as here, a plaintiff proceeds pro se, the Court
must “construe[ ] [her] [complaint] liberally and interpret[ ]
[it] to raise the strongest arguments that [it] suggest[s].”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)
(internal quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro
se party from compliance with relevant rules of procedural
and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555,
559 (S.D.N.Y. 2013) (internal quotation marks omitted); see
also Caidor v. Onondaga Cty., 517 F.3d 601, 605 (2d Cir.
2008) (“[P]ro se litigants generally are required to inform
themselves regarding procedural rules and to comply with
them.” (italics and internal quotation marks omitted) ).
B. Analysis
Plaintiff alleges that Defendants were deliberately indifferent
to her medical condition, as she alleges that she had “a[n]
infected cyst in [her] breast” that was not operated on for a
year at Bedford Hills. (Compl. 3.) Plaintiff also alleges that
she was subjected to cruel and unusual punishment when
she was “placed ... in a freezing cold infirmary room w[ith]
[six] cold vents w[ith] air duc[t]s blowing cold air.” (Id.)
Defendant Montone argues Plaintiff's claim against him must
be dismissed for lack of personal involvement, (see Defs.'
Mem. 9–11), and Defendants Vargas, Roth, and Choudhury
argue that Plaintiff's claims must be dismissed because
Plaintiff has not adequately shown that the alleged lack of
medical care she received amounts to deliberate indifference
to Plaintiff's serious medical needs, (see id. 11–14). The Court
will address each of these arguments in turn.
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1. Personal Involvement of Montone
Montone is the “Deputy of Medical” at Bedford Hills. (Order
of Service 2 (Dkt. No. 5).) In order to establish liability, a
§ 1983 plaintiff must show that any given defendant “w[as]
personally involved in the allegedly unlawful conduct,”
Brown v. City of New York, No. 13-CV-6912, 2017 WL
1390678, at *7 (S.D.N.Y. Apr. 17, 2017), because “supervisor
liability in a § 1983 action depends on a showing of
some personal responsibility, and cannot rest on respondeat
superior,” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.
2003) (italics omitted). Under § 1983, a supervisor may be
shown to have been liable in the following ways:
(1) actual direct participation in the
constitutional violation[;] (2) failure
to remedy a wrong after being
informed through a report or appeal[;]
(3) creation of a policy or custom
that sanctioned conduct amounting
to a constitutional violation, or
allowing such a policy or custom
to continue[;] (4) grossly negligent
supervision of subordinates who
committed a violation[;] or (5) failure
to act on information indicating that
unconstitutional acts were occurring.
Id. at 145; see also Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994) ). Therefore, Plaintiff must plausibly allege conduct by
Montone that falls into one of the five categories identified
above. See Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL
365493, at *4 (S.D.N.Y. Jan. 24, 2017) (holding that the five
categories “still control[ ] with respect to claims that do not
require a showing of discriminatory intent” post-Iqbal ).
Plaintiff has not alleged any way in which Montone was
personally responsible for, or involved in the circumstances
that resulted in, her medical care. The gravamen of the
claims against Montone would appear to be that Dr. Roth and
Dr. Choundry failed to address Plaintiff's medical situation
despite Montone's supposed position of authority in the prison
system. However, the Complaint contains no allegations
whatsoever that Montone was involved in decisions regarding
what medical care Plaintiff received, or that he was aware of
or somehow permitted Dr. Roth or Dr. Choundry to provide
allegedly inadequate medical care to Plaintiff. See Provost
v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)
(explaining that direct involvement encompasses “intentional
participation in the conduct constituting a violation of the
victim's rights by one who knew of the facts rendering it
illegal”).
*4 Even if Montone was generally responsible for the
supervision of Dr. Roth and Dr. Choundry, something Plaintiff
does not allege, the Complaint makes no claims Montone
was “grossly negligent” in his supervision. Hernandez, 341
F.3d at 145. Moreover, Montone cannot be held personally
liable for constitutional violations merely “because he was
in a high position of authority” at Bedford Hills. Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994) (affirming summary
judgment in favor of the Commissioner of the New York
Department of Correctional Services); see also Victory v.
Pataki, 814 F.3d 47, 67 (2d Cir. 2016), as amended (Feb. 24,
2016) (explaining that “[a] defendant in a § 1983 action may
not be held liable for damages for constitutional violations
merely because he held a high position of authority” (internal
quotation marks omitted) ). “Supervisory status, without
more, is not sufficient to subject a defendant to [§] 1983
liability.” Fortunato v. Bernstein, No. 12-CV-1630, 2015 WL
5813376, at *6 (S.D.N.Y. Sept. 1, 2015) (internal quotation
marks omitted). Rather, personal involvement “requires a
showing of more than the linkage in the prison chain of
command.” Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.
1985); see also Richardson v. Goord, 347 F.3d 431, 435 (2d
Cir. 2003) (same).
Moreover, that Plaintiff wrote to Montone in his role as
Deputy of Medical does not establish that Montone was
aware of the infection or aware of the allegedly inadequate
treatment. (See Compl. 5.) “It is well-established that an
allegation that an official ignored a prisoner's letter of protest
and request for an investigation of allegations made therein
is insufficient to hold that official liable for the alleged
violations.” Allah v. Annucci, No. 16-CV-1841, 2017 WL
3972517, at *7 (S.D.N.Y. Sept. 7, 2017) (alterations and
internal quotation marks omitted); see also Woodward v.
Perez, No. 12-CV-8671, 2014 WL 4276416, at *8 (S.D.N.Y.
Aug. 29, 2014) (“It is well-established that a supervisory
defendant's receipt of a single letter identifying an alleged
wrong is insufficient for liability under [§] 1983.”); Walker v.
Pataro, No. 99-CV-4607, 2002 WL 664040, at *12 (S.D.N.Y.
Apr. 23, 2002) (“[I]f mere receipt of a letter or similar
complaint were enough, without more, to constitute personal
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involvement, it would result in liability merely for being a
supervisor, which is contrary to the black-letter law that §
1983 does not impose respondeat superior liability.” (report
and recommendation) (italics omitted) ).
Accordingly, based on the lack of any claim linking the
actions of Montone to the injuries allegedly suffered by
Plaintiff, Montone's Motion To Dismiss is granted.
2. Eighth Amendment Claims against Dr.
Roth, Dr. Choundry, and Nurse Vargas
Reading Plaintiff's complaint liberally, she appears to assert
two distinct Eighth Amendment violations. First, Plaintiff
alleges that she was subject to deliberate indifference to her
serious medical needs, namely an infection in her left breast.
Second, Plaintiff alleges that she was subject to cruel and
unusual punishment by being placed in a cold room after
undergoing an operation on that cyst. The Court will address
each of these claims in turn.
a. Deliberate Indifference To Serious Medical Needs
i. Applicable Law
“The Eighth Amendment forbids ‘deliberate indifference to
serious medical needs of prisoners.’ ” Spavone v. N.Y. State
Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976) ). A
convicted prisoner's claim of deliberate indifference to her
medical needs by those overseeing her care is analyzed under
the Eighth Amendment because it is an allegation that the
“conditions of confinement [were] a form of punishment”
and thus is a “violation of [the] Eighth Amendment right
to be free from cruel and unusual punishments.” Darnell
v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). 3 The inquiry
proceeds by two steps. “First, the plaintiff must establish that
[s]he suffered a sufficiently serious constitutional deprivation.
Second, the plaintiff must demonstrate that the defendant
acted with deliberate indifference.” Feliciano v. Anderson,
No. 15-CV-4106, 2017 WL 1189747, at *8 (S.D.N.Y. Mar.
30, 2017).
*5 “The first requirement is objective: the alleged
deprivation of adequate medical care must be sufficiently
serious.” Spavone, 719 F.3d at 138 (internal quotation marks
omitted). Analyzing this objective requirement involves two
inquiries: “[t]he first inquiry is whether the prisoner was
actually deprived of adequate medical care,” Salahuddin v.
Goord, 467 F.3d 263, 279 (2d Cir. 2006), and the second
“asks whether the inadequacy in medical care is sufficiently
serious. This inquiry requires the [C]ourt to examine how
the offending conduct is inadequate and what harm, if any,
the inadequacy has caused or will likely cause the prisoner,”
id. at 280. To meet the objective requirement, “the inmate
must show that the conditions, either alone or in combination,
pose an unreasonable risk of serious damage to h[er] health.”
Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). “There is
no settled, precise metric to guide a court in its estimation of
the seriousness of a prisoner's medical condition.” Brock v.
Wright, 315 F.3d 158, 162 (2d Cir. 2003); see also Smith v.
Outlaw, No. 15-CV-9961, 2017 WL 4417699, at *2 (S.D.N.Y.
Sept. 30, 2017) (same). Nevertheless, the Second Circuit
has suggested the following non-exhaustive list of factors
to consider when evaluating an inmate's medical condition:
“(1) whether a reasonable doctor or patient would perceive
the medical need in question as ‘important and worthy of
comment or treatment,’ (2) whether the medical condition
significantly affects daily activities, and (3) ‘the existence
of chronic and substantial pain.’ ” Brock, 315 F.3d at 162
(quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998) ).
“The second requirement is subjective: the charged officials
must be subjectively reckless in their denial of medical
care.” Spavone, 719 F.3d at 138. Under the second prong,
the defendant must “appreciate the risk to which a prisoner
was subjected,” and have a “subjective awareness of the
harmfulness associated with those conditions to be liable
for meting out that punishment.” Darnell, 849 F.3d at 35;
see also Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014)
(“Deliberate indifference is a mental state equivalent to
subjective recklessness,” and it “requires that the charged
official act or fail to act while actually aware of a substantial
risk that serious inmate harm will result.” (internal quotation
marks omitted) ). In other words, “[i]n medical-treatment
cases not arising from emergency situations, the official's
state of mind need not reach the level of knowing and
purposeful infliction of harm; it suffices if the plaintiff proves
that the official acted with deliberate indifference to inmate
health.” Nielsen, 746 F.3d at 63 (internal quotation marks
omitted). “[M]ere negligence” is not enough to state a claim
for deliberate indifference. Walker, 717 F.3d at 125 (internal
quotation marks omitted); see also Vail v. City of New York,
68 F. Supp. 3d 412, 424 (S.D.N.Y. 2014) (same). Relatedly,
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“mere disagreement over the proper treatment does not create
a constitutional claim,” and accordingly, “[s]o long as the
treatment given is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth
Amendment violation.” Chance, 143 F.3d at 703.
ii. Analysis
Assuming here that Plaintiff's allegations regarding an
infected cyst in her left breast and the mild stroke she
suffered at an unspecified time constituted sufficiently serious
medical conditions, Plaintiff has not adequately alleged that
Defendants “acted with a sufficiently culpable state of mind.”
Grimmett v. Corizon Med. Assocs. of N.Y., No. 15-CV-7351,
2017 WL 2274485, at *4 (S.D.N.Y. May 24, 2017). Plaintiff's
medical needs were not ignored by Dr. Roth, Dr. Choundry,
or Nurse Vargas. In her Complaint, Plaintiff alleges she had
an infection in her left breast that was not operated from the
time that Plaintiff was transferred to Bedford Hills in May
2015 until October 3, 2016. (Compl. 3.) However, Plaintiff
does not allege that Dr. Roth, Dr. Choundry, or Nurse Vargas
refused to treat her infection. In fact, Plaintiff alleges that
Dr. Roth operated on Plaintiff to treat the infection, and
there is no indication that he had declined to operate on
her previously. (See id.) Moreover, Plaintiff alleges that Dr.
Choundry “treated [her] for a year,” and “often squeezed
‘pus[s] and blood’ from [her] breast.” (Id.) Plaintiff does not
specify whether this treatment occurred before or after the
surgery, nor does she indicate why such treatment would
be deemed inadequate care under the circumstances. (See
id.) See Waller v. DuBois, No. 16-CV-6697, 2018 WL
1605079, at *7 (S.D.N.Y. Mar. 29, 2018) (“The mere delay
in surgery ... does not constitute deliberate indifference.”);
Robinson v. Clark, No. 15-CV-8434, 2017 WL 775813,
at *8 (S.D.N.Y. Feb. 27, 2017) (holding that a delay in
surgery from April 2015 to December 2015 is insufficient,
without more, to support an Eighth Amendment claim);
Feliciano, 2017 WL 1189747, at *11 (“Although a delay
in providing necessary medical care may in some cases
constitute deliberate indifference, the Second Circuit has
reserved such a classification for cases in which, for example,
officials deliberately delayed care as a form of punishment;
ignored a life-threatening and fast-degenerating condition
for three days; or delayed major surgery for over two
years.” (alterations and internal quotation marks omitted) );
Ferguson v. Cai, No. 11-CV-6181, 2012 WL 2865474, at
*4 (S.D.N.Y. July 12, 2012) (“Where temporary delays or
interruptions in the provision of medical treatment have been
found to satisfy the objective seriousness requirement in
[the Second] Circuit, they have involved either a needlessly
prolonged period of delay, or a delay which caused extreme
pain or exacerbated a serious illness.”); Beaman v. Unger, 838
F. Supp. 2d 108, 110 (W.D.N.Y. 2011) (holding that delay in
treatment of wrist and finger fractures due to “the two nurses
and [the doctor] misdiagnos[ing] [the plaintiff's] injuries, and
fail[ing] to recognize the severity of those injuries ... might
conceivably show malpractice, but they do not state an Eighth
Amendment claim.”); cf. Lloyd v. Lee, 570 F. Supp. 2d 556,
568 (S.D.N.Y. 2008) (finding “a sixteen-month delay from
the time [the plaintiff] was injured until he finally obtained
relief in the form of surgery on his shoulder,” to be sufficient
to defeat a motion to dismiss where the plaintiff “purportedly
experienced extreme pain, discomfort, and loss of mobility”
throughout the relevant period). Here, Plaintiff's delayed
surgery for a non-life-threatening and non-fast-degenerating
condition, coupled with treatment from Dr. Choundry for the
condition, does not rise to the level of deliberate indifference.
*6 Further, that Dr. Choundry “did not[ ] ... get [Plaintiff]
to an outside hospital for surgery,” (Compl. 3), is not a
basis for an Eighth Amendment claim. Nor is Nurse Vargas'
advice to lay down and drink water in response to Plaintiff's
statement that she had a salty taste in her mouth. Rather, each
of these incidents is a dispute with the medical staff as to
the particularities of Plaintiff's treatment. See Chance, 143
F.3d at 703 (“It is well-established that mere disagreement
over the proper treatment does not create a constitutional
claim.”); Nelson v. Deming, 140 F. Supp. 3d 248, 262
(W.D.N.Y. 2015) (dismissing deliberate indifference claim
because the “[p]laintiff's disagreement with th[e] course of
treatment does not amount to deliberate indifference by [the]
[d]efendants”); Washington v. Westchester Cty. Dep't of Corr.,
No. 13-CV-5322, 2014 WL 1778410, at *6 (S.D.N.Y. Apr.
25, 2014) (“[I]t is well-settled that the ultimate decision of
whether or not to administer a treatment or medication is
a medical judgment that, without more, does not amount
to deliberate indifference.”); Idowu v. Middleton, No. 12-
CV-1238, 2013 WL 4780042, at *9 (S.D.N.Y. Aug. 5,
2013) (“[The] [p]laintiff's disagreement with [a defendant]’s
diagnostic technique and medical judgment cannot provide
the basis for a deliberate indifference claim under the
Eighth Amendment.”); Sonds v. St. Barnabas Hosp. Corr.
Health Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001)
(“[D]isagreements over medications, diagnostic techniques
(e.g., the need for X-rays), forms of treatment, or the need
for specialists or the timing of their intervention, are not
adequate grounds for a [§] 1983 claim. These issues implicate
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medical judgments and, at worst, negligence amounting to
medical malpractice, but not the Eighth Amendment.”). This
is particularly true given Plaintiff's surgery by Dr. Roth
and Plaintiff's treatment the very next day for additional
symptoms, which does not appear to have involved Nurse
Vargas, related to Bell's palsy and a mild stroke. (See Compl.
3.) Plaintiff's allegations suggest that she received medical
consultations and surgery, and the mere fact of a potential
delay or a disagreement with the chosen methods of treatment
is insufficient to support her Eighth Amendment deliberate
indifference claim. Therefore, this claim is dismissed.
b. Cruel and Unusual Punishment
Plaintiff also alleges that after the operation, she was
“placed ... in a freezing cold infirmary room w[ith] [six]
cold vents w[ith] air duc[t]s blowing cold air.” (Id.) Plaintiff
was given six blankets and had three sets of clothing on,
but “vapors were blowing out of [her] mouth like [she] was
outside.” (Id.)
However, Plaintiff's Complaint fails to personally name
any of the Defendants or offer any facts indicating their
involvement in the alleged constitutional violations related
to his placement in the cold room. Plaintiff merely alleges
that “they” placed her in the room after the operation, but
does not identify who “they” are and makes no mention of
who placed her in the room. (Id.) Thus, personal involvement
on the part of any Defendant is lacking here. See Medina v.
Kaplan, No. 16-CV-7223, 2018 WL 797330, at *6 (S.D.N.Y.
Feb. 8, 2018) (finding no personal involvement where the
Plaintiff made no mention of who was involved in the alleged
incident); Andrews v. Ford, No. 08-CV-3938, 2009 WL
2870086, at *3 (S.D.N.Y. Sept. 3, 2009) (dismissing for lack
of personal involvement where “the [c]omplaint provides no
factual allegations indicating that any of the Defendants were
personally involved in the alleged misconduct”).
III. Conclusion
For the reasons stated above, Defendants' Rule 12(b)(6)
Motion To Dismiss is granted. 4 Because this is the first
adjudication of Plaintiff's claims on the merits, the dismissal
is without prejudice. If Plaintiff wishes to file an amended
complaint, she must do so within 30 days of the date of
this Opinion & Order. Plaintiff should include within that
amended complaint any changes to correct the deficiencies
identified in this Opinion that Plaintiff wishes the Court to
consider. Plaintiff is advised that the amended complaint
will replace, not supplement, the original complaint. The
amended complaint must contain all of the claims and
factual allegations Plaintiff wishes the Court to consider.
The Court will not consider factual allegations contained in
supplemental letters, declarations, or memoranda. If Plaintiff
fails to abide by the 30-day deadline, her claims may be
dismissed with prejudice.
The Clerk of Court is respectfully directed to terminate the
pending Motion, (Dkt. No. 16), and to mail a copy of this
Opinion & Order to Plaintiff's address listed on the docket.
*7 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 2976023
Footnotes
1 For ease of reference, given Plaintiff's use of a standard complaint form, the Court cites to the ECF-generated
page numbers stamped at the top of Plaintiff's Complaint.
2 Plaintiff does not define it means to have “a f/s over 500,” (Compl. 3), but Defendants note in their
Memorandum of Law that Plaintiff's allegation is that “she was in the medical unit for elevated fasting blood
sugar,” (Defs.' Mem. 6).
3 Plaintiff's Complaint and the briefing on the instant Motions did not indicate whether Plaintiff was a convicted
prisoner or a pretrial detainee at the time of the alleged violations. However, results from a New York
State inmate information search indicate that Plaintiff (or someone with the same name and date of birth
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as Plaintiff) was first received into custody on August 4, 2014. See Inmate Information, New York State
Department of Corrections and Community Supervision, http://nysdoccslookup.doccs.ny.gov/ (last visited
June 11, 2018) (DIN # 14G0691). Thus, it appears that Plaintiff was a convicted prisoner when the alleged
constitutional violations occurred in May 2015. Accordingly, the Court analyzes Plaintiff's claims under the
Eighth Amendment standard.
4 Because the Court has decided these cases by way of Defendants' Motion pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court declines to consider Defendants' Motion pursuant to Federal Rule of Civil
Procedure 41(b) with regard to Plaintiff's failure to prosecute.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Brown v. Peters, Not Reported in F.Supp. (1997)
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1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.
DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,
1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which
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Brown v. Peters, Not Reported in F.Supp. (1997)
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forms the basis of defendants' motion to dismiss—
the absence of defendants' personal involvement in a
constitutional deprivation. Section 1983 imposes liability
upon an individual only when personal involvement of that
individual subjects a person to deprivation of a federal right.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective
if it fails to allege personal involvement sufficient to establish
that a supervisor was “directly and personally responsible for
the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir.1987).
*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their duties
owed to Plaintiff and is the proximate cause of [the violation
of plaintiff's constitutional rights].” Proposed Am. Compl.,
at 3. Brown continues in the same vein, stating that
defendants owed duties to plaintiff to carry out their jobs in a
professional manner and they failed to carry out those duties
appropriately. The complaint states that defendants held
specific responsibilities, such as checking for outstanding
warrants, which if performed properly should have alerted
them to a problem. However, nowhere does the complaint
set forth allegations that these defendants either participated
directly in any constitutional infraction or that they were even
aware of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing their
supervisory and ministerial functions. “These bare assertions
do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis,
1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to amend his
complaint for the same reason asserted here, to allege personal
involvement on the part of defendants. Brown's first amended
complaint failed to accomplish that task, and it appears that
even if allowed to amend again Brown would be unable to
make the requisite allegations with sufficient specificity to
sustain his complaint. Consequently, I find that amendment
would be futile, and I deny Brown's motion for leave to amend
his complaint.
I turn now to the magistrate judge's report-recommendation
and defendants' motions. The magistrate judge recommends
that I grant defendants' motions and dismiss the complaint
as to all defendants. The report-recommendation clearly
describes the grounds on which the magistrate judge
recommends dismissal as to each defendant. Fed.R.Civ.P.
72(b) requires the district judge to make a de novo
determination on “any portion of the magistrate's disposition
to which specific, written objection has been made.” Brown's
objections fail to address directly any of the analysis.
Brown's objections state (1) that he has been deprived of
his constitutional rights; (2) that he has stated a cause of
action; (3) that the court wrongly refused to appoint an
attorney for him and wrongly stayed discovery pending the
outcome of these motions; (4) that he seeks to file an amended
complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)
(6) motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that his
rights were violated; and (7) the text of the Fourteenth and
Eighth Amendments.
Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings. They
simply re-state the relief sought and the facts on which Brown
grounds his complaint and conclude that the magistrate
judge's conclusions are wrong. When the parties make only
frivolous, conclusive, or general objections, the court reviews
the report-recommendation for clear error. See Camardo v.
General Motors Hourly–Rate Employees Pension Plan, 806
F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider
objections which are frivolous, conclusive, or general and
constitute a rehashing of the same arguments and positions
taken in original pleadings); Chambrier v. Leonardo, 1991
WL 44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional claim
exists insufficient to form specific objections); Schoolfield
v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)
(objections stating that magistrate judge's decisions are
wrong and unjust, and restating relief sought and facts
upon which complaint grounded, are conclusory and do not
form specific basis for not adopting report-recommendation);
Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general
objection that report does not address violation of petitioner's
constitutional rights is a general plea that report not be
adopted and cannot be treated as objection within the meaning
of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.
denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169
(U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1
(1997) (when objections fail to address analysis directly, court
reviews report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is
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no clear error on the face of the record in order to accept the
recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review the
report-recommendation for clear error. After careful review,
I conclude that the magistrate judge's report-recommendation
is well-reasoned and is not clearly erroneous. 1 The
magistrate judge employed the proper standard, accurately
recited the facts, and reasonably applied the law to those facts.
Consequently, I adopt the report-recommendation.
CONCLUSION
Because plaintiff's proposed amendment demonstrates that
amendment would be futile, I deny plaintiff's motion for leave
to amend his complaint. I approve the magistrate judge's
recommendation and grant defendants' motions to dismiss.
Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a motion
to dismiss (dkt.13); defendants Bishop, Magee, Barton and
McMahan have filed a motion for summary judgment, or in
the alternative to dismiss (dkt.20); and defendants Herman,
Stewart and Stanford also have filed a motion to dismiss
(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,
33, 38). Defendants Bishop, Magee and McMahan have filed
a motion to stay discovery (dkt.41) and plaintiff has filed a
motion to extend time (dkt.44) in which to file opposition to
the latter motion for a stay of discovery.
The Court addresses these issues seriatim.
BACKGROUND
Plaintiff's amended complaint, which he has brought pursuant
to 42 U.S.C. § 1983, alleges the following facts. In
October, 1991, plaintiff was incarcerated in the Watertown
Correctional Facility in Watertown, New York. He applied
for an interstate compact because he wanted to return to
South Carolina to live with his common law wife, Pamela
Reid. During the application process, he was interviewed by
the facility's parole officer, identified only as defendant John
Doe # 1. After signing the necessary papers, his application
was forwarded to defendant Andrew Peters, the facility's
superintendent, who reviewed, signed and forwarded the
papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;
Exs. A, B.
On or about January 15, 1992, while his compact was waiting
for review at the Interstate Bureau, plaintiff was approved for
work release and sent to the Lincoln Work Release Center
in New York City. While at the center, plaintiff spoke to a
parole officer, defendant John Doe # 2, and told him that
he was seeking a compact that would return him to South
Carolina upon his conditional release. Plaintiff claims the
parole officer told him that he would handle the necessary
paperwork, although the officer had had no experience with
an interstate compact. Amend. Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his prospective
residence in that state. Upon discovering no one had contacted
her, plaintiff asked a lawyer he knew, Navron Ponds, to
inquire as to his compact status. In March, 1992, the
lawyer spoke with defendant Susan Bishop, who is the
director of the interstate compact program in South Carolina.
Bishop allegedly told Ponds that plaintiff “was disapproved
because there was a discrepancy about approving plaintiff['s]
compact.” The “discrepancy” was the fact that plaintiff owed
the state of South Carolina eighty-six days of confinement
from a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton, who
worked for the South Carolina Parole Department. Sometime
in March, 1992, Ponds made some calls to Barton and Magee.
A verbal agreement was reached, and plaintiff, upon speaking
with Barton and Magee was told that his compact had been
approved. He also was told that he should report to the South
Carolina Department of Parole upon being released. Amend.
Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center, plaintiff
processed paperwork related to his interstate compact. His
paperwork was sent by Doe # 2 to defendant Joseph Williams,
the superintendent of the center. Williams reviewed, signed
and returned the paperwork to plaintiff. On May 1, 1992,
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Brown v. Peters, Not Reported in F.Supp. (1997)
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upon his release from the center, plaintiff traveled to South
Carolina. Three days later, he entered a South Carolina parole
office and promptly was arrested because of the eighty-
six days of confinement that he owed the state. Plaintiff's
paperwork was given to defendant John McMahan, a parole
officer. Plaintiff claims that McMahan never returned this
paperwork to him. On May 20, 1992, the state of South
Carolina revoked plaintiff's parole and plaintiff was returned
to prison to serve the eighty-six days that he owed. When he
asked McMahan what would happen to his one year of parole
from New York, the officer allegedly told him that his New
York parole would run concurrently with his South Carolina
parole, and that when he finished his South Carolina parole,
he would not owe any parole whatsoever. Plaintiff served the
eighty-six days he owed and was released on July 31, 1992.
Amend. Compl. at ¶¶ 8–10.
In February, 1993, plaintiff was arrested on robbery charges
in South Carolina. The charges ultimately were dropped,
but he apparently encountered some difficulties regarding
this arrest as a result of a parole hold that New York state
had placed upon him. Bishop's office told him that it had
nothing to do with his parole hold and that any problem that
he had was between him and the state of New York. He
talked to authorities in Albany, New York regarding the parole
hold, but was not successful in his efforts to have the hold
removed. On September 30, 1993, after had been extradited
to New York as a fugitive from justice, plaintiff was given a
preliminary hearing at Riker's Island, New York. The hearing
officer found no probable cause that plaintiff had violated any
condition of parole. He was released. Amend. Compl. at ¶¶
11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered hardships
if his interstate compact had been handled correctly. He
alleges that defendant Deborah Stewart failed to follow up
and see whether plaintiff had arrived in South Carolina. If she
had, he argues, she would have discovered that he had been
arrested upon his arrival. He alleges that defendant Francis
Herman, a parole officer at the Interstate Bureau failed to
do his job by not investigating plaintiff's violation reports.
Amend. Compl. at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of his
Eighth and Fourteenth Amendment rights, wherefore he both
compensatory and declaratory relief.
DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss plaintiff's
complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds
that it fails to state a claim upon which relief may be
granted. In a Rule 12(b)(6) motion, all factual allegations
in the complaint must be taken and construed in plaintiff's
favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).
The Court's role is not to assess whether plaintiffs have
raised questions of fact or demonstrated an entitlement
to a judgment as a matter of law, as in a motion made
pursuant to FED.R.CIV.P. 56 for summary judgment, but
rather to determine whether plaintiff's complaint sufficiently
alleges all of the necessary legal elements to state a claim
under the law. See Christopher v. Laidlaw Transit, Inc.
899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.
New York City Transit Authority, 941 F.2d 119, 124 (2d
Cir.1991)). Factual allegations in brief or memoranda may not
be considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).
As superintendents at New York State Correctional facilities,
Williams and Peter may be found personally involved in the
alleged deprivation of plaintiff's constitutionally protected
rights by a showing that they: (1) directly participated in the
infraction; (2) knew of the infraction, but failed to remedy
the wrong; (3) created or continued a policy or custom under
which unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith, 781
F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also
may be imposed against Williams or Peters with a showing
of gross negligence or deliberate indifference to plaintiff's
constitutional rights. Id. Absent some personal involvement
by Williams or Peters in the allegedly constitutionally infirm
conduct of their subordinates, neither can be held liable under
§ 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking either
Williams or Peters to his alleged constitutional deprivations.
All that plaintiff has alleged is that Williams and Peters,
as superintendents, have reviewed and signed paperwork
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Brown v. Peters, Not Reported in F.Supp. (1997)
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relating to plaintiff's compact. Though it has long been held
that pro se complaints are held to “less stringent standards
than formal pleadings drafted by lawyers” for the purpose of a
motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972),
plaintiff has not explained how the ministerial conduct of
these two defendants was violative of the Constitution. Their
motion to dimiss should be granted.
B. Motion for Summary Judgment or to Dismiss by Bishop,
Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a motion
for summary judgment, or in the alternative a motion to
dismiss. The Court will treat their motion as a motion to
dismiss. “[C]omplaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.”
Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff
has not alleged specifically how the conduct of these four
defendants infringed upon his constitutional rights. In his
amended complaint, he contends that defendants violated the
Constitution by “continuously breaching [[[their] duty” to
him. This language underscores the defect with the complaint:
if it alleges anything at all, it alleges that defendants were
negligent in handling plaintiff's interstate compact and parole.
To state a cognizable § 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice. Hayes v.
New York City Dept. of Corrections, 84 F.3d 614, 620 (2d
Cir.1996); Morales v. New York State Dep't of Corrections,
842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not
encompass a cause of action sounding in negligence).
The Court finds that the claims against Bishop, Magee, Barton
and McMahan should be dismissed.
C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to follow
up and see whether plaintiff had arrived in South Carolina.
Herman, he likewise asserts, failed to do his job because he
did not investigate plaintiff's violation reports. Plaintiff has
not alleged how these actions run afoul of the Constitution;
and again, these claims seem to be grounded in negligence,
which is not actionable under § 1983. Hayes, 84 F.3d at 620.
Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that
defendant. Aside from naming Stanford as a defendant, and
alleging that he was the appointed Senior Parole Officer at
plaintiff's September 30, 1993 revocation hearing at Riker's
Island, plaintiff does not detail how Stanford violated his
constitutional rights. Absent some personal involvement by
Stanford in the allegedly constitutionally infirm conduct of
his subordinates, he cannot be held liable under § 1983. Gill,
824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart and
Herman's motion to dismiss should be granted.
D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have been
identified and served in this matter, the Court does not have
jurisdiction over these parties and does not reach the merits
of plaintiff's claims against them.
E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a motion
to stay discovery until the Court has made a ruling on their
motion to dismiss. Plaintiff has filed a motion to extend
the time in which he may file opposition to defendants'
motion. Plaintiff, however, has filed his opposing response
(dkt.47), therefore his instant discovery motion is denied as
moot. In that the Court recommends granting defendants'
motion to dismiss, discovery in this matter would be fruitless.
Accordingly, defendants' motion for a stay of discovery
pending the resolution of their motion to dismiss is granted.
CONCLUSION
WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to file
an opposing reply (dkt.44) is denied as moot; and it is further
ORDERED, that defendants Bishop, Magee and McMahan's
motion to stay discovery until their motion to dismiss is
decided (dkt.41) is granted; and it is further
RECOMMENDED, that defendants Peters and Williams'
motion to dismiss (dkt.13) be granted; and it is further
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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.
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Canario v. County of Rockland, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2522046
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Raymond CANARIO, Plaintiff,
v.
The COUNTY OF ROCKLAND, The Rockland County
District Attorney's Office, Hon. Thomas E. Walsh,
II, individually and in his official capacity as District
Attorney, Patrick Frawley, individually and in his
official capacity as Chief Assistant District Attorney,
Ryan Sweeney, individually and in her official capacity
as Assistant District Attorney, Michael Duganzsic,
individually and in his official capacity as Senior
Assistant District Attorney, Peter Walker, individually
and in his official capacity as Chief Criminal Investigator,
Matthew Wohl, individually and in his official capacity
as Investigator, The Town of Clarkstown, Clarkstown
Police Department, and John Does, (fictitious names
intended to be additional Parties not yet known, the
identity and number of whom is presently unknown
to Claimant) in their official capacities, Defendants.
No. 24-CV-4470 (KMK)
|
Signed September 2, 2025
Attorneys and Law Firms
Steven Jay German, Esq., Joel Murray Rubenstein, Esq.,
German Rubenstein, LLP, New York, NY, Counsel for
Plaintiff.
Gaetana Liantonio-McBridge, Esq., Lorin Ann Donnelly,
Esq., Milber Makris Plousadis & Seiden, LLP, Woodbury,
NY, Counsel for Defendant the County of Rockland.
Robert Benjamin Weissman, Esq., Saretsky Katz Dranoff
Weissman & Maynard, LLP, Elmsford, NY, Counsel for
Defendants Thomas E. Walsh, II, Patrick Frawley, Michael
Duganzsic, and Matthew Wohl in their individual and official
capacities.
Michael Kennedy Burke, Esq., Hodges Walsh & Burke LLP,
White Plains, NY, Counsel for Defendants the Town of
Clarkstown and Clarkstown Police Department.
ORDER & OPINION
KENNETH M. KARAS, United States District Judge:
*1 Raymond Canario (“Plaintiff”) brings this Action against
the County of Rockland (“Rockland”), the Rockland County
District Attorney's Office (“DA's Office”), Thomas E. Walsh,
II (“Walsh”), Patrick Frawley (“Frawley”), Ryan Sweeney
(“Sweeney”), Michael Duganzic (“Duganzic”), Peter Walker
(“Walker”), the Town of Clarkston, the Clarkstown Police
Department, and an unspecified number of John Does,
alleging, inter alia, deprivation of his rights under the First,
Fourth, Fifth, Eighth, and Fourteenth Amendments, false
arrest, malicious prosecution, malicious abuse of process,
and denial of a fair trial pursuant to 42 U.S.C. § 1983
(“Section 1983”), defamation under New York law, and
negligent hiring, training, supervision, and retention. (See
generally Compl. (Dkt. No. 4).) Before the Court are Motions
to Dismiss (“Motions”) by Rockland, (see Not. of Mot.
(Dkt. No. 59)), Clarkstown (see Not. of Mot. (Dkt. No.
61)), and Walsh, Frawley, Duganzic, and Wohl (collectively,
“Individual Defendants”) (see Not. of Mot. (Dkt. No. 64)).
For the reasons discussed below, the Motions are granted.
I. Background
A. Materials Considered
“ ‘When considering a motion to dismiss, the Court's review
is confined to the pleadings themselves,’ because ‘to go
beyond the allegations in the Complaint would convert
the Rule 12(b)(6) motion into one for summary judgment
pursuant to Rule 56.’ ” Watson v. New York, No. 22-
CV-9613, 2023 WL 6200979, at *1 (S.D.N.Y. Sept. 22,
2023) (alterations adopted) (quoting Thomas v. Westchester
Cnty. Health Care Corp., 232 F. Supp. 2d 273, 275
(S.D.N.Y. 2002)). “Nevertheless, the Court's consideration of
documents attached to, or incorporated by reference in the
Complaint, and matters of which judicial notice may be taken,
would not convert the motion to dismiss into one for summary
judgment.” Id.; see also Bellin v. Zucker, 6 F.4th 463, 473
(2d Cir. 2021) (explaining that “when ruling on Rule 12(b)
(6) motions to dismiss,” courts may “consider the complaint
in its entirety ..., documents incorporated into the complaint
by reference, and matters of which a court may take judicial
notice” (internal quotation marks and citation omitted)); Hu v.
City of New York, 927 F.3d 81, 88 (2d Cir. 2019) (“In deciding
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a Rule 12(b)(6) motion, the court may consider ‘only the facts
alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the pleadings[,] and matters of
which judicial notice may be taken.’ ” (quoting Samuels v. Air
Transp. Loc. 504, 992 F.2d 12, 15 (2d Cir. 1993))).
Rockland and Individual Defendants ask the Court to take
judicial notice of materials appended to their briefs. (See
generally Rockland Mem. in Supp. (“Rockland Mem.”) (Dkt.
No. 63); see also Indiv. Defs’ Mem. in Supp. (“Indiv. Defs’
Mem.”) (Dkt. No. 65) 2 n.2, 3 n.4, 5 n.6.)
The Court will take judicial notice of:
• documents related to Plaintiff's state court proceedings,
including decisions, (Decl. of Lorin A. Donnelly
(“Donnelly Decl.”), Ex. E (“Am. Decision”) (Dkt. No.
62-5)), and trial transcripts, (id., Ex. N (“March 14 Trial
Tr.”) (Dkt. No. 62-14); id., Ex. O (“March 17 Trial Tr.”)
(Dkt. No. 62-15)); 1
*2 • documents related to the prosecution of Plaintiff,
including felony complaints, (Donnelly Decl., Ex. B
(“Felony Compls.”) (Dkt. No. 62-2)), the grand jury
indictment (id., Ex. C (“Grand Jury Indictment”) (Dkt.
No. 62-3)), and an arrest report, (Decl. of Robert B.
Weissman (“Weissman Decl.”), Ex. I (“Arrest Rpt.”)
(Dkt. No. 66-9)); 2
• 2017, 2018, 2019, and 2020 annual reports filed by the
Village of Spring Valley with the New York Department
of State pursuant to 19 N.Y.C.R.R. § 1203, (Donnelly
Decl., Ex. G (“First 2017 Rpt.”) (Dkt. No. 62-7); id.,
Ex. H (“Second 2017 Rpt.”) (Dkt. No. 62-8); id., Ex. I
(“Third 2017 Rpt.”) (Dkt. No. 62-9); id., Ex. J (“First
2018 Rpt.”) (Dkt. No. 62-10); id., Ex. K (“Second 2018
Rpt.”) (Dkt. No. 62-11); id., Ex. L (“2019 Rpt.”) (Dkt.
No. 62-12); id., Ex. M (“2020 Rpt.”) (Dkt. No. 62-13)); 3
and
• a grand jury exhibit upon which Plaintiff relies in drafting
his Complaint, (Weissman Decl., Ex. M (“Grand Jury
Ex. 7”) (Dkt. No. 66-13)). 4
The Court takes judicial notice of these materials for the
fact of their existence and what they contain, not for the
truth of the matters asserted. See Broccoli v. Ashworth, No.
21-CV-6931, 2025 WL 880550, at *3 (S.D.N.Y. Mar. 21,
2025) (taking judicial notice “for the fact that they exist, not
the truth of the matters asserted therein” (citation omitted));
Hutchins, 2018 WL 4757970, at *7 (noting the court takes
judicial notice “only to establish the fact of such filings and
what they contained, not for the truth of the matter asserted
therein” (citation omitted)).
B. Factual Background
The following facts are drawn from Plaintiff's Complaint
and from materials of which the Court may take judicial
notice and are taken as true for the purposes of resolving the
instant Motions. See Div. 1181 Amalgamated Transit Union-
N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91,
94 (2d Cir. 2021) (per curiam).
*3 In April 2019, Plaintiff was hired as Assistant Building
Inspector by the mayor of Spring Valley, New York. (Compl.
¶ 29.) 19 N.Y.C.R.R. § 1203 requires that municipalities like
Spring Valley “annually submit to the [New York] Secretary
of State ... a report of its activities relative to administration
and enforcement of the [New York State Uniform Fire
Prevention and Building Code and the New York State Energy
Conservation Construction Code].” 19 N.Y.C.R.R. § 1203(1)
(b)(6), (7), (16); id. § 1203(4). These reports are also called
“1203 Reports.” (Compl. ¶ 34.) Plaintiff was assigned to
file 1203 Reports. (Id. ¶ 39.) Plaintiff, who had no prior
experience as a building inspector, was supposed to report to
the Building Inspector, a position that was vacant. (Id. ¶¶ 32,
40.) Plaintiff had difficulty completing the 1203 Reports, (see
id. ¶¶ 42–43, 45), and based his reporting “upon charts noting
inspection status provided by the staff [and] not from personal
visits and investigations,” which Plaintiff “believe[ed] ...
accurately reflected ... [building] inspections,” (id. ¶ 44).
Plaintiff characterized the information contained in the 1203
Reports that he submitted as “an estimate.” (Grand Jury Ex.
7 at 15; see also Compl. ¶¶ 47–48.) The chart below lists the
multiple 1203 Reports, the name of the person submitting the
report, and the date of submission.
Report Year Submitter Date of
Submission
First 2017 Report Manuel
Carmona March 14, 2019
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Second 2017 Report Manuel
Carmona June 10, 2019
Third 2017 Report Plaintiff July 2, 2019
First 2018 Report Plaintiff July 6, 2019
Second 2018
Report 5
Plaintiff July 26, 2019
2019 Report Wayne
Ballard March 31, 2020
2020 Report Wayne
Ballard July 5, 2021
(See Dkt. Nos. 62-7 to -13.)
The 1203 Reports list information including, for example,
the number of building permits issued by building type,
the number of buildings by type and how many of each
were inspected in the last year, and the number of new
constructions complete and percentage thereof that are at least
90% compliant. (Compl. ¶ 36; see, e.g., First 2018 Rpt.)
On March 23, 2021, a fire ignited at the Evergreen Court
Home for Adults, killing a firefighter and a resident. (Compl.
¶¶ 52, 54.) The Spring Valley Police Department investigated
the fire and concluded its investigation without making
any arrests. (Id. ¶ 55.) Plaintiff alleges that, after the
police department's investigation concluded, the DA's Office
“took up the criminal investigation,” at least partly because
“[t]he local media was pressuring [District Attorney] Walsh
to punish someone for the deadly fire.” (Id. ¶¶ 57–58.)
Plaintiff also alleges, “[u]pon information and belief,” that
“Defendants sought to have a detective with [the Spring
Valley Police Department] ... sign [a false] arrest/accusatory
instrument,” which the detective refused to do. (Id. ¶ 60.)
On April 1, 2021, Walsh announced, “We have assembled
today the investigative leaders from federal[,] state[,] and
local law enforcement agencies pursuing this inquiry into the
cause of the Evergreen Fire.” (Id. ¶ 73.)
On June 28, 2021, Chief Criminal Investigator Walker signed
a felony complaint that charged Plaintiff with three counts
of offering a false instrument for filing in the first degree
and three counts of falsifying business records in the second
degree. (See Felony Compls.) On June 29, 2021, Plaintiff was
arrested and given a desk appearance ticket. (Compl. ¶ 61;
Arrest Rpt. 2.) Wayne Ballard, another building inspector,
was also arrested. (See Compl. ¶ 62.) A June 29, 2021 Fox 5
article quoted Walsh as saying that “th[e] investigation is not
over and will continue into the events that led to this tragic
catastrophe and underlying governmental malfeasance.” (Id.)
A June 30, 2021 Lohud article about Plaintiff's arrest quoted
Walsh as saying, “Today is the culmination of a multi-
agency investigation that left no stone unturned.” (Id. ¶ 78.)
Wohl, a former New York Police Department officer, was
an investigator for Rockland and “worked on the team that
investigated Plaintiff.” (Id. ¶ 83.) “Upon information and
belief,” Wohl “made false statements under oath” prior “to
being hired by [the DA's Office].” (Id. ¶ 84.) Plaintiff cites
a website, “50-a.org,” as indicating that Wohl has “potential
credibility problems and adverse credibility ruling[s] by
judges.” (Id. ¶ 88.)
On July 5, 2021, a grand jury returned a nine-count
indictment, including Counts 1, 2, and 3, offering a false
instrument for filing in the first degree, 6 Counts 4, 5,
and 6, offering a false instrument for filing in the second
degree, 7 and Counts 7, 8, and 9, falsifying business records
in the second degree. 8 (See Grand Jury Indictment.) Plaintiff
alleges that Defendants “presented false evidence to the
Grand Jury ... and withheld relevant evidence with respect to
testifying witnesses.” (Compl. ¶ 66.)
*4 At an unspecified date, the case against Plaintiff was
assigned to Judge Kevin Russo of the Rockland County Court.
(See Am. Decision.) In April 2022, Plaintiff moved to dismiss
the indictment. (See Suppl. Decl. of Robert B. Weissman, Ex.
A (Dkt. No. 78-1).) In May 2022, Judge Russo ruled that the
“evidence presented ... was legally sufficient to support the
charges within the indictment” as to the first six counts. (Am.
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Decision 1.) Judge Russo noted that Plaintiff's arguments
as to the sufficiency of the evidence were “strong and
convincing arguments demonstrating possible deficiencies in
the [prosecution's] case.” (Id. 2.) Judge Russo dismissed the
seventh, eighth, and ninth counts of the indictment because
the 1203 Reports were records of the New York Secretary of
State and Plaintiff had no degree of control over those reports
as records of the Department of State. (Id. 3.)
Plaintiff alleges “[u]pon information and belief, [that]
Defendants did not produce a single document from
the Spring Valley Police Department to defense
counsel.” (Compl. ¶ 90.) A bench trial was held before Judge
Russo in March 2023. (See March 14 Trial Tr.; March 17 Trial
Tr.) The exact duration of the trial is unclear. On March 14,
2023, Judge Russo dismissed Counts 1, 2, 3, 7, 8, and 9 for
lack of evidence going to Plaintiff's intent to defraud. (March
14 Trial Tr. at 467:13–25.) On March 17, 2023, Plaintiff
was found not guilty on Counts 4, 5, and 6. (See March 17
Trial Tr. at 565:20–24.) The same day, Walker released a
statement: “The yearslong disorganization and disfunction of
the Spring Valley Building Department served as a defense
in these cases. The court chose not to hold these defendants
accountable for their role in the malfeasance in the building
department. We disagree with the [c]ourt's decision and are
disappointed in it.” (Compl. ¶ 3.)
On June 9, 2023, Plaintiff served a notice of claim on
Defendants. (Id. ¶ 9.)
C. Procedural Background
Plaintiff initiated this Action on June 12, 2024. (Compl.)
On August 12, 2024, the Court set a briefing schedule for
the Motions. (Dkt. No. 51.) After extensions, Defendants
filed their Motions on October 22, 2024. (Rockland Mem.;
Indiv. Defs’ Mem.; Clarkstown Mem. in Supp. (“Clarkstown
Mem.”) (Dkt. No. 61).) On January 6, 2025, Plaintiff filed
his Opposition. (Pl's Mem. in Opp. (“Pl's Opp.”) (Dkt. No.
73).) On January 15, 2025, Plaintiff filed a supplemental
opposition. (Pl's Supp. Mem. in Opp. (“Pl's Supp. Opp.”)
(Dkt. No. 74).) On February 5, 2025, Individual Defendants
filed their Reply, (Indiv. Defs’ Reply in Supp. (“Indiv. Defs’
Reply”) (Dkt. No. 79)), and Clarkstown filed a letter in reply,
((“Clarkstown Ltr. Reply”) (Dkt. No. 81)). On February 6,
2025, Rockland filed its Reply. (Rockland Reply in Supp.
(“Rockland Reply”) (Dkt. No. 82).)
II. Discussion
A. Standard of Review
The Supreme Court has held that while a complaint “does
not need detailed factual allegations” to survive a motion
to dismiss, “a plaintiff's obligation to provide the grounds
of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (alteration adopted) (internal quotation
marks and citation omitted). Indeed, Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (alteration adopted) (internal quotation
marks and citation omitted). Rather, a complaint's “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint,” id. at 563, and a plaintiff must
allege “only enough facts to state a claim to relief that is
plausible on its face,” id. at 570. However, if a plaintiff has
not “nudged [his] claim[ ] across the line from conceivable to
plausible, the[ ] complaint must be dismissed.” Id.; see also
Iqbal, 556 U.S. 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. But 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 ‘shown’—‘that the pleader is entitled to relief.’
” (alteration adopted) (internal quotation marks and citation
omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79
(“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it
does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.”).
*5 “[W]hen ruling on a defendant's motion to dismiss,
a judge must accept as true all of the factual allegations
contained in the complaint,” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam), and “draw[ ] all reasonable inferences
in favor of the plaintiff,” Daniel v. T&M Prot. Res., Inc.,
992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch
v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)).
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Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated
on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and
to matters of which judicial notice may be taken.” Leonard
F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks and citation omitted); see also Wang
v. Palmisano, 157 F. Supp. 3d 306, 317 (S.D.N.Y. 2016)
(same).
B. Analysis
Plaintiff has thirteen claims. As to all Defendants, Plaintiff
asserts a claim for “deprivation of federal rights” pursuant to
the First, Fourth, Fifth, Eighth, and Fourteenth Amendments,
(Compl. ¶¶ 95–100); false arrest under 42 U.S.C. § 1983
(“Section 1983”) and state law, (id. ¶¶ 101–06, 221–27);
malicious prosecution under Section 1983 and state law, (id.
¶¶ 107–27, 213–20); malicious abuse of process, (id. ¶¶ 142–
47); denial of fair trial, (id. ¶¶ 160–67); and defamation,
(id. ¶¶179–93). As to Walsh, Plaintiff alleges that his
“extrajudicial statements” give rise to a claim of denial
of fair trial, (id. ¶¶ 148–59), and a “stigma[-]plus” claim,
(id. ¶¶ 168–78). As to Rockland, Plaintiff asserts claims
for Monell liability, (id. ¶¶ 205–12), and negligent hiring,
training, supervision, and retention, (id. ¶¶ 228–39). Plaintiff
also asserts a claim for municipal liability. (Id. ¶¶ 194–204.) 9
The Court addresses first preliminary issues about sufficiency
of the pleading, then Plaintiff's claims in turn.
1. Sufficiency of the Complaint
Individual Defendants argue that the Complaint “lacks any
well-pleaded facts concerning what Frawley, Duganzic,
or Sweeney actually did in connection with Plaintiff's
claims.” (Indiv. Defs’ Mem. 18.) Clarkstown makes a similar
argument. 10 (See Clarkstown Mem. 2–3; Clarkstown Reply
5.) Plaintiff fails to address these points in his Opposition.
(See generally Pl's Opp.)
The Complaint mentions Frawley, Duganzic, and Sweeney
each only twice: first, as individuals who were served a notice
of claim, (see Compl. ¶ 9), and second, as parties to the
Action, (see id. ¶¶ 17–19). As for Clarkstown, the Complaint
notes only that it “is a municipal corporation of the State of
New York and is a resident of the Southern District of New
York.” (Id. ¶ 22.) There is no other mention of or allegation
concerning Clarkstown in the Complaint. Accordingly, all
claims against Frawley, Duganzic, Sweeney, and Clarkstown
are dismissed. See Harris v. Leon, No. 20-CV-10864, 2023
WL 2051171, at *5 (S.D.N.Y. Feb. 16, 2023) (“By lumping
all the defendants together in each claim and providing no
factual basis to distinguish their conduct, [the] complaint
failed to satisfy th[e] minimum standard [under Fed. R. Civ.
P. 8].” (omitting internal quotation)); Brock v. City of New
York, No. 19-CV-597, 2019 WL 438356, at *2 (E.D.N.Y.
Feb. 4, 2019) (dismissing municipality where the complaint
contained “no allegations against the municipality”); Jackson
v. City of Rochester, No. 17-CV-6448, 2018 WL 11317393,
at *3 (W.D.N.Y. May 14, 2018) (same).
*6 The Court now turns to whether Plaintiff has plausibly
alleged claims against the remaining Defendants: Rockland,
the DA's Office, Walsh, Walker, and Wohl.
2. Deprivation of Federal Rights (First Claim)
Plaintiff alleges that his rights under the First, Fourth, Fifth,
Eighth, and Fourteenth Amendments were violated. (Compl.
¶¶ 95–100.) Specifically, Plaintiff alleges that Defendants
“imposed” excessive force and summary punishment “upon
him,” and that he was deprived of equal protection under
the law, falsely arrested, and maliciously prosecuted. (Id. ¶¶
99(a)–(d).) Rockland argues that this claim “does not set forth
a plausible cause of action” and is, instead, a “catchall” claim.
(Rockland Mem. 21.) Plaintiff does not address this argument
in his Opposition. (See generally Pl's Opp.)
Plaintiff's failure to respond to Rockland's arguments, or to
make any argument at all with respect to this claim constitutes
abandonment. See Martinez v. Town of Clarkstown, No. 23-
CV-5364, 2024 WL 4124717, at *4 (S.D.N.Y. Sept. 9, 2024)
(deeming a claim abandoned where plaintiff failed to respond
to arguments in her opposition). To the extent that this claim
asserts false arrest and malicious prosecution claims under the
Fourth Amendment, a denial of the right to a fair trial under
the Fifth and Sixth Amendments, or a stigma-plus due process
claim under the Fifth and Fourteenth Amendments, these are
all duplicative of other claims which are discussed below.
3. False Arrest (Second and Twelfth Claims)
“A Section 1983 claim for false arrest ‘rest[s] on the
Fourth Amendment right of an individual to be free from
unreasonable seizures, including arrest without probable
cause.’ ” Dejesus v. City of Yonkers, No. 22-CV-2817, 2025
WL 81386, at *5 (S.D.N.Y. Jan. 13, 2025) (quoting Weyant
v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). A Section 1983
false arrest claim is substantially the same as a claim of false
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arrest under New York law. See Weyant, 101 F.3d at 852;
see also Higginbotham v. Sylvester, 741 F. App'x 28, 30 (2d
Cir. 2018) (summary order) (same); Delgado v. City of New
York, No. 19-CV-632, 2023 WL 6390134, at *8 (S.D.N.Y.
Oct. 2, 2023) (“A [Section] 1983 claim for false arrest, resting
on the Fourth Amendment right of an individual to be free
from unreasonable seizures, including arrest without probable
cause, is substantially the same as a claim for false arrest
under New York law.”). New York law requires a plaintiff
to show “that (1) the defendant intended to confine him,
(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.” Toussaint v. Cnty.
of Westchester, No. 21-CV-3817, 2022 WL 2834108, at *5
(S.D.N.Y. July 20, 2022) (citation omitted). “[T]he existence
of probable cause to arrest constitutes justification and is
a complete defense to an action for false arrest ... under
[Section] 1983.” Dillon v. Rosen, No. 22-CV-7035, 2022 WL
4538397, at *3 (S.D.N.Y. Sept. 28, 2022) (quoting Jenkins v.
City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007)); see also Figueroa
v. Mazza, 825 F.3d 89, 99 (2d Cir. 2016) (“The existence of
probable cause to arrest ... will defeat a claim of false arrest
under the Fourth Amendment.”); Jaegly v. Couch, 439 F.3d
149, 150 (2d Cir. 2006) (“[A] claim for false arrest will not
lie so long as the arresting officer had probable cause to arrest
the plaintiff for some crime.”).
*7 Generally speaking, an officer has probable cause to
arrest when he or she, “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) (per curiam);
see also Collier v. City of Mount Vernon, No. 19-CV-523,
2024 WL 4043135, at *8 (S.D.N.Y. Sept. 4, 2024) (noting
that an officer has probable cause to arrest where they
have “reasonably trustworthy information as to facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that an offense has been
committed by the person to be arrested”). As the Second
Circuit has observed:
To determine the existence of probable cause, a court
considers the totality of the circumstances, based on “a full
sense of the evidence that led the officer to believe that
there was probable cause to make an arrest.” The court
considers those facts available to the officer at the time of
the arrest and immediately before it. The significance of
each of these factors may be enhanced or diminished by
surrounding circumstances.
Dejesus, 2025 WL 81386, at *5 (quoting Guan v. City of N.Y.,
37 F.4th 797, 804 (2d Cir. 2022)).
There is no dispute that Plaintiff has adequately plead the first
three elements of a false arrest claim, but the Parties dispute
whether the arrest was otherwise privileged. Specifically,
Defendants argue that there was probable cause to arrest
Plaintiff. (See Rockland Mem. 13–16; Indiv. Defs’ Mem. 6–
14.) The “existence of probable cause gives an officer the
privilege to arrest.” Ost v. Allegany County, No. 17-CV-847,
2019 WL 1517560, at *3 (W.D.N.Y. Apr. 8, 2019) (quoting
Marshall v. Sullivan, 105 F.3d 47, 50 (2d Cir. 1996)). Insofar
as Rockland and Individual Defendants argue that the grand
jury indictment creates a presumption of probable cause that
defeats Plaintiff's false arrest claim, they are wrong. “The
presumption arising from a grand jury indictment only applies
to a malicious prosecution claim and not to a claim of false
arrest.” Reeder v. Vine, No. 20-CV-6026, 2023 WL 2044126,
at *6 (W.D.N.Y. Feb. 16, 2023). Even if that was not the
case, Defendants conveniently ignore the fact that Plaintiff's
arrest took place approximately one week before the grand
jury indictment issued. (Compare Arrest Rpt. (June 29, 2021),
with Grand Jury Indictment (July 5, 2021).) See Graham
v. Ferretti, No. 14-CV-5815, 2022 WL 20472223, at *11
(E.D.N.Y. Aug. 5, 2022) (“[T]he probable cause analysis
is not retroactive.”). Plaintiff argues that “the presumption
of probable cause [is] rebutted based on the suppression of
evidence, fraud, bad faith, and a lack of mens rea.” (Pl's
Opp. 14 (italics omitted).) The Court considers whether there
was probable cause to arrest Plaintiff for offering a false
instrument for filing in the first degree.
A person is guilty of offering a false instrument for filing in
the first degree when:
knowing that a written instrument
contains a false statement or false
information, and with intent to defraud
the state or any political subdivision,
public authority or public benefit
corporation of the state, he or she
offers or presents it to a public office,
public servant, public authority or
public benefit corporation with the
knowledge or belief that it will be
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filed with, registered or recorded in
or otherwise become a part of the
records of such public office, public
servant, public authority or public
benefit corporation.
N.Y. Penal Law § 175.35(1). Walker signed felony complaints
on June 28, 2021, and Plaintiff was arrested the following
day on the complaints. (See Felony Compls.; Arrest Rpt.
2.) Rockland asserts that “the significant inconsistences in
the 1203 [R]eports filed by Plaintiff established probable
cause to believe that the reported data was false.” (Rockland
Mem. 16.) Similarly, Individual Defendants argue that
“mathematical inaccuracies” and the “appearance[ ] and
disappearance[ ] of hundreds of buildings” in the 1203
Reports support probable cause to believe that “the data
reported was falsified.” (Indiv. Defs’ Mem. 9.) The felony
complaints refer specifically to the 1203 Reports that Plaintiff
filed for 2017 and 2018. (See Felony Compls. (referring to
Third 2017 Rpt., First 2018 Rpt., and Second 2018 Rpt.).)
Plaintiff does not dispute that he was the individual who
submitted the reports. (See Compl. ¶¶ 39–44.) That Plaintiff
alleges the figures in the reports were estimates, (see id. ¶¶
38–48), does not change the probable cause analysis.
*8 The 1203 Reports for 2017 and 2018 contain
discrepancies on which the arresting officers and felony
complaints could reasonably rely. Plaintiff filed a 2017 report
on July 2, 2019, even though Manuel Carmona had filed a
2017 report on June 10, 2019. (See Second 2017 Rpt.; Third
2017 Rpt.) There are numerous discrepancies between these
two reports: Carmona reported 87 areas of public assembly,
of which 30 were inspected, 270 multiple dwellings, and
743 commercial or industrial occupancies, of which 300
were inspected. (Second 2017 Rpt. 5.) Just one month later,
Plaintiff reported 516 areas of public assembly, of which 487
were inspected, 50 multiple dwellings, and 36 commercial or
industrial occupancies, of which 535 were inspected. (Third
2017 Rpt. 5.) Discrepancies also exist between Plaintiff's
2017 and 2018 reports. For example, the 2017 report states
that that there were 50 multiple dwellings containing 3 or
more dwelling units, of which 40 were inspected, and which
contained a total of 50 dwelling units. (Third 2017 Rpt.
5.) In contrast, the 2018 report states that there are 5 such
dwellings, which were all inspected, and which contained a
total of 150 dwelling units. (First 2018 Rpt. 6.) Similarly, the
number of commercial or industrial occupancies went from
36 to 0. (Compare Third 2017 Rpt. 5 with First 2018 Rpt.
6.) Even drawing inferences in Plaintiff's favor, the totality
of the circumstances supports the existence of probable cause
to arrest Plaintiff for offering a false instrument for filing
in the first degree. These discrepancies may reasonably be
seen as false statements or false information, and there is
no dispute that the New York Department of State is an
entity covered by the statute. See Hughes v. McWilliams, No.
04-CV-7030, 2009 WL 4823940, at *7 (S.D.N.Y. Dec. 15,
2009) (finding probable cause to arrest plaintiff for filing
a false instrument where the officer noted a “discrepancy
between ... two documents”), aff'd, 420 F. App'x 63 (2d
Cir. 2011); cf. Medina v. City of New York, No. 20-CV-797,
2021 WL 1700323, at *3 (S.D.N.Y. Apr. 29, 2021) (finding
probable cause to charge plaintiff with possession of a forged
registration where plaintiff's “VIN on her registration did not
match the VIN on her vehicle”).
Plaintiff argues in passing that “the presumption of probable
cause can be rebutted based on ... a complete lack of mens
rea.” (Pl's Opp. 10 (italics omitted).) On the contrary, the
arresting officers were not “under any obligation to inquire
into what [Plaintiff's] state of mind might have been when
he submitted the [reports].” Kravtchouk v. City of New York,
No. 16-CV-4787, 2019 WL 4918083, at *7 (E.D.N.Y. Sept.
30, 2019) (citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d
123, 128 (2d Cir. 1997)). “[I]n challenging the existence
of probable cause, [Plaintiff] places great reliance on the
features of [his] case that distinguish it from typical police
investigations and charging decisions.” Middelem v. Cnty. of
Suffolk, No. 99-CV-2707, 2003 WL 145247, at *9 (E.D.N.Y.
Jan. 9, 2003). However, “the subjective motivations of the
officer are not relevant to the determination of probable
cause.” Id.; see also Hagans v. Maher, No. 18-CV-1917,
2022 WL 4538561, at *9 (E.D.N.Y. Sept. 28, 2022) (noting
that this proposition is “well settled”). Plaintiff “has failed to
proffer any cogent [or plausible] allegations or reasoning as
to why it was unreasonable for the [arresting] officers to rely
upon the [1203 Reports].” Hagans, 2022 WL 4538561, at *9.
Accordingly, because there was probable cause to arrest, the
Court dismisses Plaintiff's false arrest claims. 11
4. Malicious Prosecution (Counts Three and Eleven)
“While the tort of malicious prosecution protects against the
consequences of wrongful prosecution, public policy favors
bringing criminals to justice, and accusers must be allowed
room for benign misjudgments. The law therefore places a
heavy burden on malicious prosecution plaintiffs.” Smith-
Hunter v. Harvey, 734 N.E.2d 750, 752 (N.Y. 2000); see
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also Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 2004)
(noting the heavy burden plaintiffs must meet on a malicious
prosecution claim under New York law). Federal and state
malicious prosecution claims have “overlapping standards.”
Kurtz v. Hansell, 664 F. Supp. 3d 438, 452 (S.D.N.Y. 2023),
aff'd sub nom. Kakar Kurtz v. Lawson, No. 23-7548, 2025
WL 39860 (2d Cir. Jan. 7, 2025). “To state a [Section] 1983
malicious prosecution claim 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.” Rodriguez v. City of New York, 623 F. Supp. 3d 225, 238
(S.D.N.Y. 2022) (quoting Cornelio v. Connecticut, 32 F.4th
160, 179 (2d Cir. 2022)).
*9 Under New York law, a plaintiff asserting malicious
prosecution must demonstrate: “(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 the defendant's actions.”
Cruz v. Cnty. of Rockland, No. 21-CV-2073, 2023 WL
6199189, at *6 (S.D.N.Y. Sept. 22, 2023) (quoting Dettelis v.
Sharbaugh, 919 F.3d 161, 163–64 (2d Cir. 2019)). In addition
to these four elements, a plaintiff must also show (5) “that
there was [ ] a sufficient post-arraignment liberty restraint to
implicate the plaintiff's Fourth Amendment rights.” Adam v.
City of New York, No. 21-CV-3956, 2024 WL 3875772, at *6
(E.D.N.Y. Aug. 19, 2024) (quoting Rohman v. N.Y.C. Transit
Auth., 215 F.3d 208, 215 (2d Cir. 2000)).
The Parties do not dispute the first two elements. Rockland
and Individual Defendants argue that there was probable
cause for Plaintiff's prosecution and that Plaintiff has failed
to plausibly allege malice or a deprivation of liberty. (See
Rockland Mem. 17–18; Indiv. Defs’ Mem. 14–16.) Plaintiff
argues that he has sufficiently alleged that the presumption of
probable cause may be rebutted, malice can be inferred, and
that he has suffered a sufficient deprivation of liberty. (See
Pl's Opp. 11–13.)
“No claim for malicious prosecution can survive if there was
probable cause for the prosecution.” Buari v. City of New York,
530 F. Supp. 3d 356, 384 (S.D.N.Y. 2021) (citing Boyd v.
City of New York, 336 F.3d 72, 75 (2d Cir. 2003)). A grand
jury indictment establishes a presumption of probable cause
that “may be rebutted by evidence that the indictment was
procured by fraud, perjury, the suppression of evidence or
other police conduct undertaken in bad faith.” Haughey v.
County of Putnam, No. 18-CV-2861, 2022 WL 4468066, at
*11 (S.D.N.Y. Sept. 26, 2022) (quoting Stansbury v. Wertman,
721 F.3d 84, 95 (2d Cir. 2013)). “[W]here a plaintiff's only
evidence to rebut the presumption of the indictment is his
version of events, courts will find such evidence to be nothing
more than mere conjecture and surmise that the plaintiff's
indictment was procured as a result of conduct undertaken
by the defendants in bad faith, which is insufficient to rebut
the presumption of probable cause.” Johnson v. McMorrow,
No. 19-CV-6480, 2023 WL 1797063, at *5 (S.D.N.Y. Feb.
7, 2023) (quoting Brandon v. City of New York, 705 F.
Supp. 2d 261, 272–73 (S.D.N.Y. 2010)); see also Merrill
v. Copeland, No. 19-CV-1240, 2022 WL 3212075, at *16
(N.D.N.Y. Aug. 9, 2022) (plaintiff's failure to explain how the
proceedings before the grand jury were “tainted” insufficient
to rebut presumption of probable cause created by grand jury
indictment); Gutierrez v. New York, No. 18-CV-3621, 2021
WL 681238, at *12 (E.D.N.Y. Feb. 22, 2021) (“Plaintiff has
adduced no evidence from which a reasonable juror could
conclude that Defendants procured his indictment through
fraud, perjury, or other bad faith.”); Soto v. City of New
York, 132 F. Supp. 3d 424, 456 (E.D.N.Y. 2015) (presumption
unrebutted where the “[p]laintiff merely surmises there was
bad faith ... [and] has neither sought nor produced the grand
jury minutes in this matter precluding any further evaluation
of what occurred before the grand jury”); Peterson v. Regina,
935 F. Supp. 2d 628, 643 (S.D.N.Y. 2013) (finding plaintiff's
offer of his “suspicions of impropriety as proof of the
defendants’ misconduct before the grand jury” insufficient to
rebut presumption).
*10 Rockland and Individual Defendants argue that the
grand jury indictment supplies the probable cause that is a
complete defense to the claim of malicious prosecution. (See
Rockland Mem. 17–18; Indiv. Defs’ 16.) Plaintiff argues that
this presumption “can be rebutted based on the suppression
of evidence, fraud, [ ] bad faith[,] and a complete lack of
mens rea.” (Pl's Opp. 10 (italics omitted).) Plaintiff asserts
that Defendants were “fully aware of the[ ] difficulties
faced by [P]laintiff in filing the[ ] [1203] [R]eports,” and
that Defendants “withheld this information from the [g]rand
[j]ury.” (Id.) Plaintiff further argues that Defendants’ alleged
attempt to convince a detective to sign an accusatory
instrument was similarly withheld from the grand jury. (Id.
11.) Finally, Plaintiff argues that “[D]efendants presented
false evidence to the [g]rand [j]ury and withheld evidence that
undermined the charges, including with respect to testifying
witnesses.” (Id.)
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Plaintiff alleges that the Defendants “presented false
evidence” to the grand jury, (Compl. ¶ 66), but fails to provide
any further context or details. Plaintiff also alleges, again
without providing any details, that Defendants withheld from
the grand jury Plaintiff's “difficulties” in filing the 1203
Reports, (id. ¶¶ 39–48), and that a law enforcement officer
allegedly refused to sign an accusatory instrument, (id. ¶
60). Plaintiff's allegations do not plausibly “show that any of
the Defendants fabricated, falsified, or suppressed evidence,
or otherwise acted in bad faith regarding Plaintiff's grand
jury indictment.” Diallo v. New York City, No. 23-CV-1238,
2025 WL 522514, at *8 (S.D.N.Y. Feb. 18, 2025), appeal
pending, No. 25-633 (2d Cir. Mar. 19, 2025). “At most, these
allegations show the weaknesses of the case against Plaintiff.”
Id.
With respect to what information was disclosed to the grand
jury, these allegations are applicable to the prosecutors, who
are “protected by absolute immunity.” Diallo, 2025 WL
522514, at *9 (citing Smhueli v. City of New York, 424
F.3d 231, 236 (2d Cir. 2005) (“Further, although absolute
immunity is an affirmative defense whose availability
depends on the nature of the function being performed by
the defendant official who is alleged to have engaged in the
challenged conduct ... the nature of that function is often
clear from the face of the complaint. In that circumstance,
the absolute immunity defense may be resolved as a matter
of law on a motion to dismiss the complaint pursuant to
Rule 12(b)(6).” (internal citations omitted)). The initiation
and pursuit of a criminal prosecution are “quintessential
prosecutorial functions protected by absolute immunity,” id.,
and, in any case, “[a] prosecutor is not required to present
to the grand jury exculpatory evidence,” Jimenez v. City
of New York, No. 23-CV-6751, 2025 WL 935233, at *15
(S.D.N.Y. Mar. 27, 2025), appeal pending, No. 25-776 (2d
Cir. Apr. 3, 2025). Accordingly, “[b]ecause Plaintiff has failed
to allege facts sufficient to rebut the presumption of probable
cause, dismissal of Plaintiff's malicious prosecution claim[s]
is warranted.” Diallo, 2025 WL 522514, at *10; see also
Thorpe v. Delta Air Lines, Inc., No. 24-CV-1089, 2024 WL
5007423, at *8 (E.D.N.Y. Dec. 6, 2024) (finding plaintiff
failed to overcome the presumption where his allegations
amounted to “mere conjecture and surmise that his indictment
was procured as a result of conduct undertaken by [defendant]
in bad faith”), appeal pending, No. 25-58 (2d Cir. Jan.
8, 2025); cf. Johnson v. United States, 759 F. Supp. 3d
425, 446, (S.D.N.Y. 2024) (finding plaintiffs overcame the
presumption when alleging in detail how “the prosecution's
case against [p]laintiffs rested in significant part on fabricated
evidence”); Bell v. City of New York, No. 22-CV-3251,
2023 WL 11916696, at *8 (E.D.N.Y. Sept. 1, 2023) (finding
plaintiff overcame the presumption where he “describe[d]
in detail how [defendants] coerced his confession, that they
knew his confession was false, and that they provided this
falsified information to prosecutors for use in indicting and
prosecuting [p]laintiff”); Werkheiser v. Cnty. of Broome,
655 F. Supp. 3d 88, 105 (N.D.N.Y. 2023) (finding plaintiff
overcame the presumption when alleging that defendants
“knew evidence was not reliable, failed to observe typical
guidelines for these types of investigations, and failed to
conduct further investigation,” but characterizing it as “a
close call”). 12
5. Abuse of Process (Fourth Claim)
*11 “In order to establish liability for malicious abuse of
process under [Section] 1983, a plaintiff must establish the
claim's elements under state law as well as the deprivation of
a constitutional right.” Barkai v. Nuendorf, No. 21-CV-4060,
2023 WL 2691712, at *35 (S.D.N.Y. Mar. 29, 2023) (quoting
Hoffman v. Town of Southampton, 893 F. Supp. 2d 438,
446 (E.D.N.Y. Sep. 28, 2012), aff'd, 523 F. App'x 770 (2d
Cir. 2013)). Under New York law, a plaintiff may assert an
abuse of process claim against a defendant who “(1) employs
regularly issued legal process to compel performance or
forbearance of some act (2) with intent to do harm without
excuse or justification, and (3) in order to obtain a collateral
objective that is outside the legitimate ends of the process.”
Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003)
(quoting Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994));
Dominguez v. Walsh, No. 22-CV-6443, 2025 WL 618868, at
*10 (S.D.N.Y. Feb. 26, 2025) (noting the same elements).
A collateral objective is the “crux of a malicious abuse of
process claim.” Kraft v. City of New York, 696 F. Supp. 2d 403,
416 (S.D.N.Y. 2010), aff'd, 441 F. App'x 24 (2d Cir. 2011).
To plead a collateral objective, a plaintiff must plausibly
plead not that defendant acted with an “improper motive,” but
rather an “improper purpose.” Savino, 331 F.3d at 77; see also
Lopez-Motherway v. City of Long Beach, No. 20-CV-5652,
2021 WL 965158, at *4 (E.D.N.Y. Mar. 15, 2021) (same). In
other words, “it is not sufficient for a plaintiff to allege that the
defendants were seeking to retaliate against him by pursuing
his arrest and prosecution. Instead, [the plaintiff] must claim
that they aimed to achieve a collateral purpose beyond or in
addition to his criminal prosecution.” Savino, 331 F.3d at 77
(emphasis added); see also Wetzel v. Town of Orangetown,
No. 06-CV-6117, 2010 WL 743039, at *5 (S.D.N.Y. Mar. 2,
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2010) (“New York Courts have made clear that a malicious
motive alone[ ] does not give rise to a cause of action for abuse
of process.”).
Individual Defendants argue that Plaintiff has failed to
plausibly allege a collateral objective, that probable cause is
a defense to a claim of abuse of process, and that Walsh,
Walker, and Wohl are entitled to qualified immunity. (See
Indiv. Defs’ Mem. 20–21.) Rockland argues that Plaintiff has
failed to establish Monell liability for Rockland and the DA's
Office. (Rockland Mem. 10.) Plaintiff did not address abuse
of process in his Opposition, (see generally Pl's Opp.), but
does in his Supplemental Opposition, (see Pl's Supp. Opp.).
There, Plaintiff argues that Defendants’ collateral objective
was “scapegoating him for the [Evergreen] fire.” (Id. 2.)
In so arguing, however, Plaintiff concedes that Defendants’
alleged collateral objective was, in fact, his prosecution,
and not some other purpose beyond or in addition to his
prosecution. This is fatal to Plaintiff's claim. See Savino, 331
F.3d at 77–78 (in analyzing an abuse of process claim, holding
that an allegation that defendants were “solely motivated
to seek vindication for [their] great political embarrassment
and humiliation” was an improper motive, not a purpose or
objective); Thorpe, 2024 WL 5007423, at *9 (dismissing
an abuse of process claim where the plaintiff alleged that
defendants’ collateral objective was scapegoating plaintiff);
LoPorto v. Cnty. of Rensselaer, No. 15-CV-866, 2018 WL
4565768, at *14–15 (N.D.N.Y. Sept. 24, 2018) (dismissing
an abuse of process claim where the plaintiff alleged that
a defendant tried to “scapegoat” him and collecting cases);
cf. Crews v. Cnty. of Nassau, No. 06-CV-2610, 2007 WL
4591325, *12 (E.D.N.Y. 2007) (“Because plaintiffs have
merely alleged that defendants were motivated by their desire
to cover up their misdeeds, but not that defendants had
a purpose other than to prosecute [plaintiff], the abuse of
process claim fails.”).
6. Denial of a Fair Trial (Fifth and Sixth Claim)
*12 “To establish a fair trial claim based on fabrication
of evidence, a plaintiff must show that “an (1) investigating
office[r] (2) fabricates evidence (3) that is likely to influence
a jury's decision, (4) forwards that information to prosecutors,
and (5) the plaintiff suffers a deprivation of liberty as a
result.” Savarese v. City of New York, 547 F. Supp. 3d
305, 347 (S.D.N.Y. 2021) (quoting Garnett v. Undercover
Officer C0039, 838 F.3d 265, 280 (2d Cir. 2016)); see also
Douglas v. City of Peekskill, No. 21-CV-10644, 2025 WL
965018, at *11–12 (S.D.N.Y. Mar. 31, 2025) (describing the
identical elements). Further, “[b]ecause a lack of probable
cause to arrest or prosecute is not a necessary element of a
fabricated evidence claim, the existence of probable cause
does not defeat such a claim.” McKinley v. Crevatas, No.
20-CV-3606, 2023 WL 4364182, at *12 (S.D.N.Y. July 6,
2023); Garnett, 838 F.3d at 278 (“[P]robable cause is no
defense to a denial of the right to a fair trial claim ....”).
“[I]n addition to the fabrication of evidence, ‘police officers
can be held liable for Brady due process violations under
[Section] 1983 if they withhold exculpatory evidence from
prosecutors.’ ” Moroughan v. County of Suffolk, 514 F. Supp.
3d 479, 535 (E.D.N.Y. 2021) (quoting Bermudez v. City of
New York, 790 F.3d 368, 376 n.4 (2d Cir. 2015) (alterations
omitted)); see also Bellamy v. City of New York, 914 F.3d
727, 751 (2d Cir. 2019) (“When police officers withhold
exculpatory or impeaching evidence from prosecutors, they
may be held liable under [Section] 1983 for violating the
disclosure requirements of Brady v. Maryland.”).
Plaintiff alleges that he was denied a fair trial due
to extrajudicial statements made by Walsh “to create a
‘high-profile’ case that would advance [h]is own career
goals,” (Compl. ¶¶ 148–59), and due to Defendants’ failure
to turn over any documents from the Spring Valley Police
Department, (id. ¶¶ 160–67), i.e., a Brady violation. Because
“[c]ourts have categorically rejected denial of a right to fair
trial claims based on Brady violations where the plaintiff was
not convicted in the underlying criminal trial,” McClean v.
Cnty. of Westchester, No. 17-CV-4492, 2018 WL 6329420,
at *16 (S.D.N.Y. Dec. 3, 2018), aff'd sub nom. McClean v.
City of Mount Vernon, 776 F. App'x 725 (2d Cir. 2019);
see also Hester v. Albany Cnty. Dist. Att'y, No. 20-CV-1153,
2021 WL 1968201, at *9 (N.D.N.Y. Apr. 22, 2021) (same
and collecting cases), report and recommendation adopted,
2021 WL 1966743 (N.D.N.Y. May 17, 2021); Ventillo v.
Falco, No. 19-CV-3664, 2020 WL 7496294, at *12 (S.D.N.Y.
Dec. 18, 2020) (same), the Court does not address the
Parties’ arguments on this issue. Accordingly, the Court need
only address whether Plaintiff has plausibly alleged whether
Walsh's extrajudicial statements denied him a fair trial.
To prevail upon a claim for denial of
a fair trial due to prejudicial publicity
[or extrajudicial statements], a plaintiff
must establish three elements: (1) that
there were “improper leaks” under
the canons of ethics; (2) that the
plaintiff had in fact been denied
his due process rights; and (3) that
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other remedies, such as voir dire,
peremptory challenges, and challenges
for cause, were not available, or were
used to no avail, to alleviate the effects
of the leaks.
McHenry v. Bell, No. 13-CV-657 GTS, 2015 WL 2354438, at
*9 (N.D.N.Y. May 15, 2015) (citing Jovanovic v. City of New
York, No. 04-CV-8437, 2010 WL 8500283, at *10 (S.D.N.Y.
Sept. 28, 2010)).
Plaintiff claims that Walsh's extrajudicial statements were
“reported by various media outlets,” thereby “creat[ing] a
highly prejudicial and inflamed atmosphere against Plaintiff,”
which in turn “compelled [the prosecution] to continue their
case against Plaintiff” and forced Plaintiff “to waive [his]
constitutional right to trial by jury.” (Compl. ¶¶ 153–54, 157–
58.) Plaintiff alleges that, following his arrest, Walsh made
statements to the press, including: “Make no mistake—this
investigation is not over and will continue into the events that
led to this tragic catastrophe and underlying governmental
malfeasance,” (id. ¶ 62), and “Today is the culmination of a
multi-agency investigation that left no stone unturned,” (id.
¶ 78).
*13 First, to the extent Plaintiff attempts to include a
statement made by Walsh, such a statement cannot support
a denial of a fair trial claim because it was made after the
trial. The trial concluded on March 17. (Id. ¶ 3; see generally
March 17 Trial Tr.) The statement attributed to Walsh was
necessarily made after the end of trial because it references
Judge Russo's decision and the disposition of the case: “We
are saddened and disappointed by Judge Russo's decision....
The people believe that sufficient evidence was presented to
establish the defendant's guilt beyond a reasonable doubt.”
(Compl. ¶ 91.) Second, Plaintiff does not allege that any of
Walsh's statements were improper leaks under the canons of
ethics or that other remedies were unavailable or ineffective.
Third, Plaintiff fails to clearly spell out how these statements
in fact denied his due process rights, see Powers v. Coe, 728
F.2d 97, 105 (2d Cir. 1984); rather, he conclusorily argues
that the statements “were false, misleading, prejudicial,
inflammatory, and therefore had an impact on the result of
the trial,” (Pl's Opp. 23). In short, even drawing inferences
in his favor, Plaintiff has failed to plausibly allege that the
deprivation of his right to a fair trial “was not ‘too remote a
consequence’ ” of Walsh's statements. Powers, 728 F.2d at
105–06 (quoting Martinez v. California, 444 U.S. 277, 279
(1980)). Accordingly, Plaintiff's denial of a fair trial claims
are dismissed.
7. “Stigma-Plus” Section 1983 (Seventh Claim)
“The Due Process Clause protects against a person's loss of
reputation when that loss is associated with the deprivation of
a federally protected liberty interest.” Fugelsang v. Dep't of
Educ. of New York City, No. 23-CV-8332, 2025 WL 974276,
at *7 (E.D.N.Y. Mar. 31, 2025) (citing Bd. of Regents v. Roth,
408 U.S. 564 (1972), and Valmonte v. Bane, 18 F.3d 992, 999
(2d Cir. 1994)). “Such a claim is referred to as a ‘stigma-plus’
claim because it involves an injury to one's reputation (the
stigma) coupled with the deprivation of some tangible interest
or property right (the plus), without adequate process.”
Balchan v. New Rochelle City Sch. Dist., No. 23-CV-6202,
2024 WL 2058726, at *8 (S.D.N.Y. May 7, 2024) (internal
quotation marks omitted) (quoting Segal v. City of New York,
459 F.3d 207, 212 (2d Cir. 2006)), reconsideration denied
sub nom. Balchan v. New Rochelle City Sch. Dist., 2024 WL
4333417 (S.D.N.Y. Sept. 27, 2024). At the motion to dismiss
stage, a plaintiff must (1) “plausibly plead the existence of
a stigmatizing statement,” that (2) is made publicly and (3)
“is ‘coupled with the loss of governmental employment or
deprivation of a legal right or status, such as a loss of job
opportunities.’ ” Walker v. Fitzpatrick, 814 F. App'x 620, 624
(2d Cir. May 19, 2020) (summary order) (quoting Abramson
v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002)). A plaintiff must
also show that the stigmatizing statement “is capable of being
proved false, and that he or she claims is false.” Mudge v.
Zugalla, 939 F.3d 72, 81 (2d Cir. 2019) (quoting Sadallah
v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004)); Balchan,
2024 WL 2058726, at *8 (“[A] plaintiff is generally required
to raise the falsity of these stigmatizing statements only as
an issue, not prove they are false.” (citation omitted)). The
“stigma” and the “plus” “must be sufficiently proximate,”
id. (quoting Velez v. Levy, 401 F.3d 75, 89 (2d Cir. 2005)
(holding that the statements must be made concurrently with
“the loss of employment ... or the termination or alteration
of some other legal right or status”))—this requirement is
satisfied where “(1) the stigma and plus would, to a reasonable
observer, appear connected,” and “(2) the actor imposing the
plus adopted (explicitly or implicitly) the statements in doing
so.” Velez, 401 F.3d at 89.
An actionable stigmatizing statement is one that “call[s]
into question plaintiff's good name, reputation, honor,
or integrity. Statements that denigrate the employee's
competence as a professional and impugn the employee's
professional reputation in such a fashion as to effectively
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put a significant roadblock in that employee's continued
ability to practice his or her profession may also fulfill this
requirement.”
Walker, 814 F. App'x at 624 (quoting Patterson v. City
of Utica, 370 F.3d 322, 330 (2d Cir. 2004)); Thurber v.
Finn Academy, No. 20-CV-6152, 2025 WL 834485, at *11
(W.D.N.Y. Mar. 17, 2025) (same). “Federal courts often
look to state substantive law of defamation in analyzing the
‘stigma’ component of a ‘stigma-plus’ claim.” Dolcine v.
Hanson, No. 17-CV-4835, 2021 WL 949748, at *6 (S.D.N.Y.
Mar. 12, 2021).
*14 Plaintiff alleges that, as a result of Walsh's extrajudicial
statements, he was “deprived of his liberty, was denied
fundamental constitutional rights, was publicly embarrassed
and humiliated, was caused to suffer severe emotional
distress, was forced to incur substantial legal expenses, had
his personal and professional reputation destroyed, and lost
his economic opportunities.” (Compl. ¶ 177.) Plaintiff also
alleges that he was denied a promotion that he “was intended
to receive” and was “fired from his positions as Code
Enforcement Official at Wesley Hills and Building Inspector
for New Hempstead.” (Id. ¶ 71.) The statements made by
Walsh that Plaintiff asserts support his claim are:
1. On April 1, 2021, “We have assembled today the
investigative leaders from federal state and local law
enforcement agencies pursuing this inquiry into the
cause of the Evergreen Fire,” (Compl. ¶ 73);
2. On June 30, 2021, “Today is the culmination of a multi-
agency investigation that left no stone unturned,” (id. ¶
78);
3. Following the end of trial, “We are saddened and
disappointed by Judge Russo's decision. The people
believe that sufficient evidence was presented to
establish the [Plaintiff's] guilt beyond a reasonable
doubt,” (id. ¶ 91.)
The first two statements are not stigmatizing statements
because they do not mention Plaintiff in any way, and so
cannot weigh upon his “good name, reputation, honor, or
integrity,” Thurber, 2025 WL 834485, at *1; see Linardos
v. Juthani, No. 24-CV-962, 2025 WL 887693, at *10 (D.
Conn. Mar. 21, 2025) (finding that the alleged stigmatizing
statement was “innocuous” and was not “sufficiently
derogatory to injure ... her reputation” and dismissing a
stigma-plus claim); Schulz v. Commack Union Free Sch. Dist.,
664 F. Supp. 3d 296, 305–06 (E.D.N.Y. 2023) (finding that
plaintiff had not satisfied the first element when he failed
to plausibly allege any stigmatizing statement “that even
arguably goes to the heart of his professional competence”
or “impugn[ed] [his] reputation” and dismissing a stigma-
plus claim); Dolcine, 2021 WL 949748, at *6 (dismissing
a stigma plus claim at summary judgment because plaintiff
could “point to no ... statements” that “attack[ ] an individual's
professional competence” or would “have a negative impact
on that individual's future employment prospects”).
Individual Defendants argue that the third statement is a “pure
and non-actionable expression of opinion.” (Indiv. Defs’
Mem. 23.) The applicable caselaw supports this position.
“[O]nly factual statements are actionable as defamation or
libel ... because New York law protects derogatory statements
which may be categorized as ‘opinion’ as opposed to ‘fact.’
” Solstein v. Mirra, 488 F. Supp. 3d 86, 96 (S.D.N.Y. 2020)
(quoting Chau v. Lewis, 771 F.3d 118, 128 (2d Cir. 2014)).
“Determining whether a statement is an allegation of fact
or mere opinion is a legal question for the court.” Id. To
determine whether a statement is one of opinion or fact, courts
look to four factors:
(1) whether the specific language in
issue has a precise meaning which
is readily understood or whether
it is indefinite and ambiguous;
(2) a determination of whether
the statement is capable of being
objectively characterized as true or
false; (3) an examination of the
full context of the communication
in which the statement appears; and
(4) a consideration of the broader
social context or setting surrounding
the communication[,] including the
existence of any applicable customs
or conventions which might signal to
readers or listeners that what is being
read or heard is likely to be opinion,
not fact.
Kirch v. Liberty Media Corp., 449 F.3d 388, 402 n.7 (2d Cir.
2006) (citation and quotation marks omitted).
*15 The third statement has a precise meaning but is not
capable of being characterized as true or false. That the
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statement begins, “The people believe[,]” weighs in favor
of its being an opinion. See Bellavia Blatt & Crossett,
P.C. v. Kel & Partners LLC, 151 F. Supp. 3d 287, 293–
95 (E.D.N.Y. 2015) (noting that rhetorical “indicators,” such
as word choice, inform an inquiry into whether a statement
is an opinion); cf. Shanahan v. Town of Huntington, 750 F.
Supp. 3d 7, 13 (E.D.N.Y. 2024) (finding that the word choice
of “worse,” “ridiculous,” and “largely subjective” indicated
that a statement was an opinion); Sall v. George, 20-CV-214,
2022 WL 1250854, at *8 (D. Vt. Jan. 11, 2022) (finding the
fact that the statement in question began with “ ‘I cannot
believe,’ strongly suggest[ed] that the words were expressing
an opinion”), report and recommendation adopted in relevant
part, rejected in part sub nom. Sall v. Seven Days, 2022
WL 632931 (D. Vt. Mar. 4, 2022). Further, the full context
also weighs in favor of the statement being an opinion—
Walsh made the statement after Plaintiff was acquitted of all
charges, and the statement comments upon the Judge Russo's
decision. (See Compl. ¶ 91.) As the statement contains
an opinion, “the [C]ourt must next determine whether the
statement is ‘pure opinion’ (and thus non-actionable) or
‘mixed opinion’ (and therefore actionable).” Solstein, 488
F. Supp. 3d at 97 (quoting Chau, 771 F.3d at 129). “Pure
opinion is a statement of opinion which is accompanied by
a recitation of the facts upon which it is based or does not
imply that it is based on undisclosed facts,” while mixed
opinion “is an opinion that does imply a basis in undisclosed
facts, or facts known only to the author.” Chau, 771 F.3d at
129. The third statement does not imply that it was based
on undisclosed facts, making it a non-actionable opinion.
See Wiese v. Kelley, No. 08-CV-6348, 2009 WL 2902513,
at *6 (S.D.N.Y. Sept. 10, 2009) (noting that a statement of
opinion “is not actionable as a stigmatizing remark” and
collecting cases); Grega v. Pettengill, 123 F. Supp. 3d 517,
553 (D. Vt. 2015) (finding that the statement “[t]he evidence
clearly shows that [plaintiff] was responsible for the death
of his wife” and asserted “[plaintiff's] guilt based on the
circumstantial evidence presented at the trial” “[did] not lend
itself to being objectively characterized as true or false,”
and was an “opinion about what the evidence showed rather
than stating for a fact that [plaintiff] murdered his wife”);
cf. Galgano v. Cnty. of Putnam, New York, No. 16-CV-3572,
2018 WL 4757968, at *31 (S.D.N.Y. Sept. 28, 2018) (finding
that a statement by a prosecutor “criticizing the dismissal
of the second indictment and discussing the weight of the
evidence presented to a secret grand jury proceeding is a
mixed opinion, because his statements clearly implied that his
opinion was based on undisclosed facts” (alterations adopted)
(quotation marks omitted)), opinion vacated in part on
reconsideration sub nom. Galgano v. Cnty. of Putnam, 2019
WL 2235891 (S.D.N.Y. May 16, 2019). To the extent Plaintiff
argues that the third statement is stigmatizing because it
implies or speculates that Plaintiff is guilty, “[t]he fact that
an innocuous statement may lead to unwarranted speculation
does not make the statement stigmatizing.” Linardos, 2025
WL 887693, at *10 (quotation marks omitted) (quoting
Leichter v. Lebanon Bd. of Educ., 917 F. Supp. 2d 177, 190
(D. Conn. 2013)); cf. Burley v. Bernstine, No. 21-CV-72, 2021
WL 11108682, at *6 (M.D. Pa. Apr. 13, 2021) (dismissing
a stigma-plus claim because plaintiff's speculation as to the
stigma, “the potential inability to receive a fair trial[,] is
simply insufficient to support a federal defamation claim”),
report and recommendation adopted, 2021 WL 11108156
(M.D. Pa. May 6, 2021), aff'd, No. 21-1956, 2021 WL
3719224 (3d Cir. Aug. 23, 2021); Filteau v. Prudenti, 161
F.Supp.3d 284, 293 (S.D.N.Y. 2016) (dismissing a “stigma-
plus” complaint where the allegations of “stigma” were
“conclusory and speculative”); Petrone v. Hampton Bays
Union Free Sch. Dist., No. 03-CV-4359, 2013 WL 3491057,
at *35 (E.D.N.Y. July 10, 2013) (granting summary judgment
on plaintiff's stigma-plus claim and noting in relation that
“plaintiff's speculation ... does not suffice to establish
that [the] statements would have prevented [plaintiff] from
obtaining employment”), aff'd, 568 F. App'x 5 (2d Cir. 2014).
Finally, even if any of these statements was stigmatizing, this
claim would still fail. Plaintiff alleges, without detail, that
he was fired from his jobs as Code Enforcement Official at
Wesley Hills and Building Inspector for New Hempstead.
(See Compl. ¶ 71). This can suffice as a burden “sufficient
to satisfy the stigma-plus standard.” Leise v. Vermont Hum.
Rts. Comm'n, No. 22-CV-9, 2024 WL 2924838, at *9 (D.
Vt. June 10, 2024) (noting that “[c]ourts have found ...
termination of plaintiff's government employment” suffices).
However, Plaintiff has failed to allege that “the stigmatizing
statements were made concurrently in time to [his] dismissal
from government employment.” Patterson, 370 F.3d at 330;
see also Grega, 123 F. Supp. 3d at 553 (dismissing a stigma-
plus claim because “[p]laintiff ha[d] not adequately alleged
that [the] statements were sufficiently proximate to her
termination”). Further, the remainder of Plaintiff's allegation
is insufficient to satisfy the “plus” prong because “[d]eletrious
effects which flow directly from a sullied reputation,” like
“the impact that defamation might have on job prospects, or,
for that matter, romantic aspirations, friendships, self-esteem,
or any other typica consequence of a bad reputation,” are
“normally insufficient to satisfy the ‘plus’ prong of a stigma-
plus claim.” Leise, 2024 WL 2924838, at *9 (alterations
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adopted) (quotation marks omitted) (quoting Valmonte, 18
F.3d at 1001).
Accordingly, Plaintiff's stigma-plus claim is dismissed.
8. State Law Claims
In light of the Court's dismissal of all of Plaintiff's
federal claims, the Court declines to exercise supplemental
jurisdiction over Plaintiff's state law claims of defamation
and negligent hiring. See 28 U.S.C. § 1367(c)(3) (“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 ....”).
“In 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.” Lara-Grimaldi v. Cnty. of Putnam, No. 17-
CV-622, 2022 WL 17541815, at *4 (S.D.N.Y. Dec. 6, 2022)
(alteration adopted) (quoting Pension Benefit Guar. Corp. ex
rel. St. Vincent Cath. Med. Ctrs. Ret. Plan v. Morgan Stanley
Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013)); see also
One Commc'ns Corp. v. JP Morgan SBIC LLC, 381 F. App'x
75, 82 (2d Cir. 2010) (summary order) (“If all of a plaintiff's
federal claims are dismissed, a district court is well within its
discretion to decline to assert supplemental jurisdiction over
any state law claims ....”).
III. Conclusion
*16 For the reasons set forth above, the Motions are
granted, and Plaintiff's Complaint is dismissed. The Court
notes that the DA's Office, Walker, and Sweeney have not
been served. (See Indiv. Defs’ Mem. 1 n.1; see generally
Dkt.) Summons issued as to all three. (Dkt. Nos. 29–33.) Rule
4(m) provides that a court may, following notice to plaintiff,
dismiss defendants who remain unserved 90 days after the
complaint is filed. Fed. R. Civ. P. 4(m). Plaintiff must serve
the DA's Office, Walker, and Sweeney within 30 days of this
Opinion & Order. Failure to do so may result in the Court
dismissing sua sponte the DA's Office, Walker, and Sweeney.
The Clerk of the Court is respectfully directed to terminate
the pending Motions at Dkt. Nos. 59, 60, and 64.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 2522046
Footnotes
1 See Ferranti v. Arshack, Hajek & Lehrman PLLC, No. 20-CV-2476, 2021 WL 1143290, at *3 (S.D.N.Y. Mar.
24, 2021) (“The [c]ourt may take judicial notice of a document filed before another court ....”); Hutchins v.
Solomon, No. 16-CV-10029, 2018 WL 4757970, at *7 (S.D.N.Y. Sept. 29, 2018) (taking judicial notice of
filings in a court case submitted by a party); Coggins v. Cnty. of Nassau, No. 07-CV-3624, 2008 WL 2522501,
at *7 (E.D.N.Y. June 20, 2008) (noting that “courts routinely take judicial notice[—]at the motion to dismiss
stage[—]of transcripts of related judicial proceedings, including criminal proceedings”).
2 See Phillips v. City of New York, No. 21-CV-8149, 2024 WL 4307923, at *2 (S.D.N.Y. Sept. 26, 2024) (noting
that “[j]udicial notice may be taken of public records, including ‘arrest reports, criminal complaints, indictments,
and criminal disposition data’ ” (quoting Wims v. New York City Police Dep't, No. 10-CV-6128, 2011 WL
2946369, at *2 (S.D.N.Y. July 20, 2011))).
3 See Gov't Emps. Ins. Co. v. Active Med. Care, P.C., No. 24-CV-995, 2024 WL 4790169, at *1 n.1 (E.D.N.Y.
Nov. 14, 2024) (taking “judicial notice of [New York] Department of State records”); Haru Holding Corp. v.
Haru Hana Sushi, Inc., No. 13-CV-7705, 2016 WL 1070849, at *2 (S.D.N.Y. Mar. 15, 2016) (taking judicial
notice of information provided by the New York State Department of State).
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4 See Hesse v. Godiva Chocolatier, Inc., 463 F. Supp. 3d 453, 462 (S.D.N.Y. 2020) (noting that judicial notice
“may be taken of documents that are ‘integral to the complaint’ such that the complaint ‘relies heavily upon
[the documents’] terms and effect” (quoting Palin v. N.Y. Times Co., 940 F.3d 804, 811 (2d Cir. 2019))).
5 The 2018 Reports appear identical.
6 A person is guilty of offering a false instrument for filing in the first degree when: “knowing that a written
instrument contains a false statement or false information, and with intent to defraud the state or any political
subdivision, public authority or public benefit corporation of the state, he or she offers or presents it to a public
office, public servant, public authority or public benefit corporation with the knowledge or belief that it will be
filed with, registered or recorded in or otherwise become a part of the records of such public office, public
servant, public authority or public benefit corporation.” N.Y. Penal Law § 175.35(1).
7 A person is guilty of offering a false instrument for filing in the second degree when: “knowing that a written
instrument contains a false statement or false information, he offers or presents it to a public office or public
servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a
part of the records of such public office or public servant.” N.Y. Penal Law § 175.30.
8 A person is guilty of falsifying business records in the second degree when: “with intent to defraud, he ...
[m]akes or causes a false entry in the business records of an enterprise.” N.Y. Penal Law § 175.05(1).
9 The Complaint omits paragraphs 128 to 141.
10 Clarkstown also argues that the Clarkstown Police Department is an administrative arm of Clarkstown
and therefore cannot be sued. (Clarkstown Mem. 2.) Clarkstown is correct that, “[u]nder New York law,
departments that are merely administrative arms of a municipality do not have a legal identity separate and
apart from the municipality and, therefore, cannot sue or be sued.” Sagaria v. Orange Cnty. Jail, No. 20-
CV-2287, 2021 WL 4392422, at *3 (S.D.N.Y. Sept. 24, 2021) (collecting cases). Accordingly, Plaintiff's claims
against the Clarkstown Police Department are dismissed with prejudice.
11 Because the Court finds that there was probable cause to arrest for offering a false instrument for filing in the
first degree, it does and need not reach whether there was probable cause to arrest for falsifying business
records in the second degree, as “[a] showing of probable cause to arrest for any single crime defeats a claim
for false arrest.” Witt v. Armstrong, No. 3:20-CV-1570, 2022 WL 3043546, at *4 (D. Conn. Aug. 2, 2022).
12 Because the Court has found that Plaintiff has failed to rebut the presumption of probable cause, it does
not reach whether Plaintiff has adequately pled the malice and deprivation of liberty elements of a malicious
prosecution claim.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:25-cv-00719-DNH-ML Document 11 Filed 02/20/26 Page 144 of 417

Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2007 WL 607341
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Paul CIPRIANI, Plaintiff,
v.
Harry C. BUFFARDI, Sheriff; Schenectady County Jail;
Cheryl Clark, M.D.; Kevin J. O'Connor, Defendants.
No. 9:06-CV-0889(LEK/DRH).
|
Feb. 20, 2007.
Attorneys and Law Firms
Paul Cipriani, Plaintiff, pro se.
DECISION and ORDER
LAWRENCE E. KAHN, U.S. District Judge.
*1 Presently before the Court is an amended complaint
filed by Plaintiff Paul Cipriani (“Plaintiff”). Amended Compl.
(Dkt. No. 10). This amended complaint was submitted
in compliance with the Memorandum-Decision and Order
issued by this Court on November 27, 2006 (“November
Order”). Mem.-Decision and Order (Dkt. No. 7).
In its November Order, the Court advised plaintiff that he
must set forth facts demonstrating that Defendants were
personally involved in a violation of Plaintiff's rights. Id. at 4.
Plaintiff was also advised that in order to establish the liability
of a municipality, he must allege a custom or policy which is
the moving force behind the violation. Id.
In his amended complaint, Plaintiff names thirteen defendants
and asserts numerous claims against them arising from his
confinement at Schenectady County Jail. Amended Compl.
(Dkt. No. 10).
The Court notes that plaintiff has not named “Schenectady
County Jail,” “Cheryl Clark,” or “Kevin J. O'Connor” in
his amended Complaint. Therefore, “Schenectady County
Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are hereby
dismissed as defendants in this action.
The Court also notes that Plaintiff's amended Complaint
mentions “Mr. Booth” and “Mr. Purdy” only in the caption,
and fails to allege any act or omission by these individuals.
Dismissal is appropriate where a defendant is listed in the
caption, but the body of the complaint fails to indicate what
the defendant did to the plaintiff. Gonzalez v. City of New
York, No. 97 CIV. 2246(MGC), 1998 WL 382055, at *2
(S.D.N.Y. July 9, 1998) (citing Crown v. Wagenstein, No. 96
CIV. 3895(MGC), 1998 WL 118169, at *1 (S.D.N.Y.Mar.16,
1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement) and Taylor v. City
of New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997)). Because
plaintiff has failed to allege any personal involvement on the
part of defendants “Mr. Booth” and “Mr. Purdy”, they are
hereby dismissed as defendants in this action.
In his amended Complaint, Plaintiff alleges that the remaining
Defendants committed various violations of his constitutional
rights, including inadequate medical care, breach of doctor-
patient confidentiality, excessive force, denial of due process
in a disciplinary proceeding, and interference with the
grievance process. Amended Compl. (Dkt. No. 10).
Based on the foregoing, Plaintiff's amended complaint as
against the remaining Defendants is accepted for filing.
Plaintiff is advised, however, that the U.S. Marshals cannot
effect service on a “John Doe” defendant. In the event
that plaintiff wishes to pursue this claim against the “John
Doe” defendants named in the amended Complaint, he must
take reasonable steps to ascertain their identities. Plaintiff
may then file a Motion to amend his complaint and seek
leave of the Court to add such individuals, by name, as
defendants to this lawsuit. Plaintiff is further advised that if
these individuals are not timely served, the action will be
against them will be dismissed.
*2 WHEREFORE, it is hereby
ORDERED, that “Mr. Booth,” “Mr. Purdy,” “Schenectady
County Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are
DISMISSED as defendants in this action, and it is further
ORDERED, that the Clerk revise the docket to add
“Schenectady County,” “Mr. Burns,” “Mr. Jones,” “Mr.
Adams,” “Ms. Jones,” “Ms. Hull,” “John Doe # 1,” “John Doe
# 7,” “John Doe # 10,” and “Loraine Walker” as defendants
in this action, and it is further
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Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2026 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 © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Crown v. Wagenstein, Not Reported in F.Supp. (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 118169
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Lakim CROWN, Plaintiff,
v.
Warden WAGENSTEIN; Parker T. # 10639 of
Emergency Response Unit, et al., Defendants.
No. 96 CIV. 3895(MGC).
|
March 16, 1998.
Attorneys and Law Firms
Lakim Crown, Brooklyn, for Plaintiff, Pro Se.
Paul A. Crotty, Esq., Corporation Counsel of the City of New
York, Attorney for Defendants Wangenstein and Parker, New
York, By Renee R. Nebens, Esq.
OPINION AND ORDER
CEDARBAUM, J.
*1 This is an action for damages brought by a pro se plaintiff
pursuant to 42 U.S.C. § 1983. Defendant Wangenstein moves,
pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint
for failure to state a claim upon which relief can be granted
against him in either his personal or official capacity. For the
reasons discussed below, defendant's motion is granted.
The complaint alleges that on November 28, 1995, while
plaintiff was incarcerated at New York City's Otis Bantum
Correctional Center (“OBCC”), plaintiff was assaulted by a
number of correction officers. (Compl. at 3–4). As a result,
plaintiff alleges that he sustained injuries to his head, neck,
back, and right leg. (Compl. at 4). In addition to the officers
involved in the assault, plaintiff sues Wangenstein, the warden
of OBCC at the time of the alleged assault.
Discussion
A motion to dismiss for failure to state a claim must be granted
if, when viewed in the light most favorable to the plaintiff
and when all allegations of the complaint are accepted as true,
it appears beyond doubt that the plaintiff can prove no set
of facts in support of the claim which would entitle him to
relief. Bolt Electric, Inc. v. City of New York, 53 F.3d 465,
469 (2d Cir.1995). In addition, a complaint and supporting
papers prepared by a pro se plaintiff must be read liberally and
interpreted to “raise the strongest arguments they suggest.”
Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995).
When an individual defendant is sued under § 1983, that
defendant's personal involvement in the alleged constitutional
deprivation is a prerequisite to an award of damages. See
Wright v.. Smith, 21 F.3d 496, 501 (2d Cir.1994). For a
claim under § 1983, a complaint sufficiently alleges personal
involvement of a supervisory official if it alleges one of the
following: (a) direct participation in the alleged wrong; (b)
failure to remedy a violation after receiving notice of it; (c)
creation of a policy or custom under which unconstitutional
practices occur; or (d) grossly negligent management of
subordinates who cause the constitutional violation. See Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996).
A § 1983 claim against a municipal official in his official
capacity is treated as a claim against the municipality itself.
Brandon v. Holt, 469 U.S. 464, 471–72, 105 S.Ct. 873,
83 L.Ed.2d 878 (1985). Section 1983 imposes liability on
municipalities only when the action that is alleged to be
unconstitutional implements or executes an official policy or
custom. See Monell v. Department of Social Services, 436
U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
From the complaint, it is unclear whether Wangenstein is
being sued in his personal or official capacity. However, pro
se complaints, if possible, should be construed as asserting
both claims. Jackson v. Dinkins, 1995 WL 657075 at *1
(S.D.N.Y. Nov.8, 1995)(citing Frank v. Relin, 1 F.3d 1317,
1326 (2d Cir.)(“a plaintiff who has not clearly identified in her
complaint the capacity in which the defendant is sued should
not have the complaint automatically construed as focusing
on one capacity to the exclusion of the other”), cert. denied,
510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993)).
*2 The complaint does allege an assault by certain members
of the OBCC Emergency Response Unit. (Compl. at 3–4). It
alleges that while the plaintiff was making a telephone call,
members of the Emergency Response Unit entered housing
area 1N and defendant Parker verbally harassed the plaintiff,
and with the assistance of other members of the Emergency
Response Unit, assaulted him. (Compl. at 3–4). However,
the complaint does not allege the personal involvement
of Warden Wangenstein. The complaint mentions Warden
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Crown v. Wagenstein, Not Reported in F.Supp. (1998)
© 2026 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
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2014 WL 234722
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Diane J. DAVIS, Plaintiff,
v.
Julie CAMPBELL, as the assigned Judge of Chenango
County Family Court; and Karen Peters, as Chief
Judge, New York State Supreme Court Appellate
Division, Third Judicial Department, Defendants.
No. 3:13–CV–0693 (LEK/ATB).
|
Jan. 22, 2014.
Attorneys and Law Firms
Diane J. Davis, pro se.
DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
*1 This matter comes before the Court following a Report–
Recommendation filed on June 26, 2013, by the Honorable
Andrew T. Baxter, U.S. Magistrate Judge, pursuant to 28
U.S.C. § 636(b) and Local Rule 72.1. Dkt. No. 3 (“Report–
Recommendation”). Pro se Plaintiff Diane J. Davis brought
this civil rights action challenging the legality of state-
court child custody proceedings that occurred in Chenango
County Family Court in 2011 and 2012. 1 Report–Rec. at
2–9. Plaintiff names as defendants two state-court judges,
Julie Campbell and Karen Peters (“Defendants”), and seeks
declaratory and injunctive relief. See generally Report–
Rec.; Dkt. No. 1 (“Complaint”). Because Plaintiff applied
to proceed in forma pauperis, Judge Baxter reviewed the
Complaint pursuant to 28 U.S.C. § 1915. Report–Rec. at
1. Judge Baxter recommends that Plaintiff's Complaint be
dismissed in its entirety because it fails to state a claim on
which relief may be granted, and because Defendants are
immune from suit. See Report–Rec. at 13–18. Plaintiff timely
filed Objections to the Report–Recommendation. Dkt. No. 5
(“Objections”).
A district court must review de novo any objected-to portions
of a magistrate judge's report-recommendation or specific
proposed findings or recommendations therein and “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); accord FED. R. CIV. P. 72(b); see also Morris v.
Local 804, Int'l Bhd. of Teamsters, 167 F. App'x 230, 232
(2d Cir.2006); Barnes v. Prack, No. 11–CV–0857, 2013 WL
1121353, at *1 (N.D.N.Y. Mar. 18, 2013). If no objections are
made, or if an objection is general, conclusory, perfunctory,
or a mere reiteration of an argument made to the magistrate
judge, a district court need review that aspect of a report-
recommendation only for clear error. Chylinski v. Bank of
Am., N.A., 434 F. App'x 47, 48 (2d Cir.2011); Barnes, 2013
WL 1121353, at *1; Farid v. Bouey, 554 F.Supp.2d 301, 306–
07 & n. 2 (N.D.N.Y.2008); see also Machicote v. Ercole,
No. 06 Civ. 13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug.
25, 2011) (“[E]ven a pro se party's objections to a Report
and Recommendation must be specific and clearly aimed
at particular findings in the magistrate's proposal, such that
no party be allowed a second bite at the apple by simply
relitigating a prior argument.”).
Judge Baxter recommends dismissal because, inter alia,
Defendants are protected by judicial immunity. Report–
Rec. at 13–15. Plaintiff states in her Objections that she
intended to sue the courts on which Defendants sit: Chenango
County Family Court and the New York State Supreme
Court Appellate Division, Third Judicial Department (“Third
Department”). Objs. at ¶¶ 7–9, 15. However, these courts
are also immune from suit. As branches of the New York
State Unified Court System, the Chenango County Family
Court and the Third Department are “arms of the state”
and are therefore protected by sovereign immunity, which
bars suits in federal court against states and state officials
acting in their official capacities. See, e.g., Gollomp v. Spitzer,
568 F.3d 355, 386 (2d Cir.2009); Bey v. Brooklyn Fam.
Ct., No. 11–CV–5209, 2012 WL 1145933, at *2 (E.D.N.Y.
April 5, 2012); McKnight v. Middleton, 699 F.Supp.2d 507,
521 (E.D.N.Y.2010). Accordingly, allowing Plaintiff leave to
amend the Complaint and name the state courts as defendants
would not remedy its deficiencies.
*2 The remainder of Plaintiff's Objections are irrelevant,
conclusory, or duplicative of arguments that were before
Judge Baxter. 2 See generally Objections. The Court therefore
reviews the remainder of the Report–Recommendation for
clear error and finds none.
Accordingly, it is hereby:
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ORDERED, that the Report–Recommendation (Dkt. No. 3)
is APPROVED and ADOPTED in its entirety; and it is
further
ORDERED, that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED in its entirety; and it is further
ORDERED, that the Court hereby certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this matter would
not be taken in good faith; and it is further
ORDERED, that the Clerk of the Court serve a copy of this
Decision and Order upon Plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge.
The Clerk has sent to the court a civil rights complaint,
together with an application to proceed in forma pauperis
(“IFP”), filed by pro se plaintiff, Diane J. Davis. (Dkt.Nos.1,
2).
I. IFP Application
A review of plaintiff's IFP application shows that she declares
she is unable to pay the filing fee. (Dkt. No. 2). This court
agrees, and finds that plaintiff is financially eligible 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, 678 (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
*3 In this civil rights complaint, plaintiff is challenging
proceedings that occurred in the Chenango County Family
Court in 2011 and 2012, relative to the custody of her
grandson and relative to a neglect petition that was filed
against her. (Compl.) (Dkt. No. 1). Plaintiff alleges that she
had custody of the child for seven years (2005–2012), during
which time the child's father was serving a criminal sentence
for sexual abuse. (Compl.¶ 6). Plaintiff claims that when the
child's father was released from custody, he attempted to
reestablish contact with the child, however, the child reported
that his father had molested him during visitation. (Compl.¶¶
8–10)
Notwithstanding these allegations, the father filed a custody
petition in the Chenango County Family Court to obtain
custody of the child from plaintiff. At the same time, plaintiff
filed cross-petitions to modify the father's visitation rights
because of the alleged abuse. (Compl.¶ 11–12). Plaintiff
alleges that her first assigned attorney requested that the
Family Court relieve him because “the child's father made
many custody petitions,” and the attorney would not be able
to represent plaintiff properly. (Compl.¶¶ 13–14). Defendant
Campbell, the Family Court Judge, assigned Andrew Puritz,
Esq., who plaintiff alleges “had no time for Plaintiff
whatsoever.” (Compl.¶ 15).
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Plaintiff claims that the child's school reported the child's
allegations of sexual abuse to the Chenango County Child
Protective Service (“CPS”). (Compl.¶ 16). Plaintiff also states
that she “would file new petitions as new allegations came
in,” but that after plaintiff had filed three petitions in an
eight-month period, defendant Campbell issued an order
prohibiting plaintiff from filing petitions on her own and
directing that any petition be filed by her attorney, Mr. Puritz.
(Compl.¶¶ 17–18). However, plaintiff claims that Mr. Puritz
refused “several times” to file petitions on plaintiff's behalf.
(Compl. ¶ 19). Plaintiff claims that by forbidding her from
filing “new” petitions pro se, and requiring her to proceed
with counsel, without giving plaintiff an opportunity to be
heard, defendant Campbell was violating plaintiff's federal
constitutional rights.
Plaintiff alleges that she continued to report the child's
allegations of sexual abuse to the Child Abuse Hotline.
(Compl.¶ 25). Plaintiff claims that one of the CPS workers
failed to properly report the allegations, and in July of 2011,
plaintiff reported the CPS worker to the “hotline.” Plaintiff
claims that the individual on the telephone “got really mad”
and told plaintiff that she would be hearing from the CPS
worker in question “within the hour.” (Compl. ¶¶ 26–27). The
CPS worker called plaintiff and made arrangements to meet
at the “victim's advocate's office,” but told plaintiff that Mr.
Puritz would not “do anything for her.” Plaintiff also claims
that, in retaliation for reporting the CPS worker, she filed a
neglect petition against plaintiff. (Compl.¶¶ 29–30).
*4 Plaintiff claims that as a result of the neglect petition,
defendant Campbell “took” the child from plaintiff's custody
without notice or hearing, and placed the child with his
father, “a convicted level III child molester, without any
precautions against the continuing sexual abuse reported by
the child.” (Compl.¶ 31).
Attorney Puritz was assigned to represent plaintiff on the
neglect case, but plaintiff claims that Attorney Puritz never
filed a petition to have the child returned to plaintiff or even
told plaintiff that such a procedure was available. (Compl.¶
32). Plaintiff alleges that Attorney Puritz did not represent
her properly and consistently ignored her telephone calls and
letters. Attorney Puritz told plaintiff that he knew that the
child was going to be taken, but never informed plaintiff.
(Compl.¶ 34). Plaintiff states that there was a “court hearing,”
but plaintiff never received notice from the court. (Compl.¶
35). Instead, the notice went to Mr. Puritz, and he failed to
notify plaintiff. Attorney Puritz appeared for the hearing, but
did not request an adjournment so that plaintiff could get
notice and an opportunity to be heard. (Compl.¶ 36).
Plaintiff claims that the CPS drove to plaintiff's house 15
minutes before the removal hearing 1 was to start, to notify
plaintiff of the hearing. Plaintiff was not home and states that
her twin sister did not accept service “because notice was
insufficient.” (Compl.¶¶ 37–40). Plaintiff states that she made
multiple applications for another attorney “because Mr. Puritz
did not want to do his job.” (Compl.¶ 41).
Plaintiff alleges that when she managed to get Mr. Puritz on
the telephone, he told her that he had 70 cases along with
plaintiff's neglect case, he had to take care of his “paying
clients” first, and he had no time for her case. (Compl.¶¶
43–45). Plaintiff states that she reported this conversation to
the Clerk of the Family Court and to the “Public Defender's
Office.” Plaintiff claims that the Public Defender's Office
took plaintiff's application for new counsel, but defendant
Campbell refused to appoint a new attorney without an
explanation. (Compl.¶¶ 46–47). Plaintiff “believes” that the
refusal to appoint new counsel, knowing that the assigned
attorney refused to do his job, was an unconstitutional
“policy” of the Family Court. (Compl.¶ 48–49).
Plaintiff states that during the pendency of the child neglect
proceedings against plaintiff, the child's father filed a custody
petition to have custody returned to him. The neglect petition
against the plaintiff and the custody petition filed by the
child's father were scheduled to be heard together. Trial for
both petitions was scheduled for January 23, 2012. (Compl.¶¶
50–51).
The complaint states that at the end of December “2012,” 2
she became “fed up” with Mr. Puritz's refusal to work, and
with the assistance of her “extended family,” collected enough
money for a retainer and hired private counsel. 3 (Compl.¶
52). Plaintiff alleges that her new attorney immediately
began working and filed the notarized “consent to change
attorneys.” (Compl.¶ 53). Counsel served the document on
Mr. Puritz, but he did not transfer plaintiff's file for two weeks,
notwithstanding the impending trial date. (Id.)
*5 Plaintiff's new counsel continued to act on plaintiff's
behalf in Family Court and filed witness lists for the trial.
The attorney also filed an ex parte application for the
funds, necessary to subpoena factual witnesses and to call
expert witnesses. (Compl.¶¶ 54–55). Counsel also filed an
application to adjourn the trial. (Compl.¶ 55). At the same
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time, the child's father filed a motion to disqualify plaintiff's
retained counsel because counsel's husband represented
the child's father in the criminal case that resulted in
his conviction. (Compl.¶ 56). Notwithstanding plaintiff's
opposition to the disqualification, defendant Campbell
granted the motion, and on January 18, 2012, reinstated
Attorney Puritz as counsel for plaintiff, without plaintiff's
consent. (Compl.¶¶ 57–61).
Plaintiff claims that defendant Campbell forced her to proceed
to trial with unprepared counsel, who had an “obvious
grudge” against plaintiff for firing him. (Compl.¶ 67).
Attorney Puritz did not represent her properly and did not
have her best interests in mind when he handled her three-
week trial. (Compl.¶ 65, 69). Specifically, plaintiff alleges
that Attorney Puritz did not make proper objections, and “in
fact, ... made no hearsay objections,” refused to call all of
plaintiff's desired witnesses, and he allowed CPS to introduce
records that were sealed and inadmissible. (Compl.¶¶ 70–
73). Defendant Campbell even offered to help Attorney Puritz
subpoena witnesses, although she had not given the same
assistance to retained counsel. (Compl.¶ 72).
The custody and neglect petitions were decided against
plaintiff, and all her visitation with the child was terminated.
(Compl.¶¶ 74–75). Plaintiff states that she appealed to
defendant Peters's court (the Appellate Division, Third
Department) and “initially” proceeded pro se on the appeal.
(Compl.¶ 75). Plaintiff claims that defendant Campbell
refused to give plaintiff access to her file for the appeal,
claiming “a policy” that only attorneys could look at the file
and telling plaintiff she should hire an attorney or ask for
assigned counsel. (Compl.¶ 76).
Plaintiff states that she was nervous that her appeal would be
dismissed as untimely, so she asked the Appellate Division for
assigned counsel. (Compl.¶ 77). The first attorney assigned by
the Appellate Division had a conflict, and a second attorney,
Sam D. Castellino, was appointed. (Compl.¶ 80). Plaintiff
was unhappy with Mr. Castellino's performance. (Compl.¶¶
82–91). Plaintiff did not share Mr. Castellino's view that
plaintiff should “work with” Social Services and claims that
Mr. Castellino refused to seek relevant records and exhibits.
(Compl.¶¶ 82, 86–88). Plaintiff alleges that, although Mr.
Castellino asked for reversal of Judge Campbell's decision, he
also suggested that plaintiff be placed under CPS supervision,
a proposal with which plaintiff strongly disagreed. (Compl.¶
89). Mr. Castellino also refused to raise issues of judicial bias,
prejudice, misconduct, and ineffective representation at trial.
(Compl.¶ 90).
*6 Plaintiff ultimately asked Mr. Castellino to withdraw,
and he did so. (Compl.¶ 91). Plaintiff was appointed another
attorney, Ms. Corbett. (Compl.¶ 92). However, plaintiff
became displeased with Ms. Corbett's performance when
Ms. Corbett decided to use Mr. Castellino's appellate brief,
rather than write her own, knowing that Mr. Castellino's
brief contained the offer to have plaintiff supervised by CPS.
(Compl.¶¶ 93–94). Ms. Corbett also told plaintiff that Mr.
Castellino was a friend of hers, that he did a “fabulous job”
on the appeal, and that Mr. Puritz did an “excellent” job
as plaintiff's trial counsel. She suggested that plaintiff go to
counseling for six months and then reapply for visitation with
the child. (Compl.¶ 95).
Plaintiff states that she also learned that there was a “cap”
on attorneys fees in the Appellate Division, and that with the
rate of $75.00 per hour, an attorney can only afford to spend
62 hours and 40 minutes working on a file, even if the case
required much more. Plaintiff states that she was never given
access to her file so that she could assess the magnitude of her
own record. Plaintiff seeks to challenge the “cap rule” of the
Appellate Division on “the grounds of equal protection and
access to courts.” (Compl.¶¶ 97–104).
Plaintiff states that, from her conversations with “several
attorneys,” she believes that attorneys are “deadly afraid”
to raise issues of judicial bias, prejudice, and misconduct.
(Compl.¶ 105). Because of this fear, plaintiff believes that
her right to raise relevant issues has been prejudiced,
and she states that she has “reversible issues” on appeal
based on defendant Campbell's bias. (Compl.¶ 106). Plaintiff
complains that defendant Peters's court consistently assigns
counsel who are “related to the Respondent” or who
would not work for her “fully” because of restrictions in
compensation or fear of sanctions. (Compl.¶ 107).
Plaintiff asks for declaratory and injunctive relief:
(1) declare unconstitutional the “rule or policy” of the
Chenango Family Court prohibiting pro se appellants
access to their own file;
(2) declare unconstitutional the “rule or policy” of the
Chenango County Family Court forbidding the filing of
new petitions by pro se litigants who are represented by
assigned counsel in pending proceedings;
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(3) declare unconstitutional the “rule or policy” of the
Chenengo County Family Court to “impose” assigned
counsel who “refuse” to do their work properly on
indigent litigants; and
(4) declare unconstitutional the “rule or policy” of the
Appellate Division to cap compensation of assigned
counsel.
(Compl. at pp. 12–13). For each of the above requests,
plaintiff asks the court to enjoin the enforcement of the policy
and to appoint a federal court monitor to “verify” compliance.
(Id.)
III. Abstention
A. Legal Standards
Pursuant to Younger v. Harris, 401 U.S. 37, 43–45 (1971),
the District Court is without jurisdiction under the abstention
doctrine if there is an ongoing state proceeding; where an
important state interest is implicated; and the plaintiff has
an avenue open for review of constitutional claims in state
court. See Parent v. New York, 485 F. App'x 500, 503 (2d
Cir.2012) (quoting Younger, supra; Liberty Mut. Ins. Co. v.
Hurlbut, 585 F.3d 639, 647 (2d Cir.1997)). The Younger
doctrine originally applied only to criminal proceedings,
but is now applicable to civil actions as well, including
state administrative proceedings. Id. (citations omitted). The
doctrine also applies to claims for declaratory and injunctive
relief. Id.
B. Application
*7 Plaintiff states in her complaint that appellate counsel
was given until June 7, 2013 to decide whether to use
former counsel's brief on appeal or to submit her own brief.
(Compl.¶¶ 92–94). Based on a deadline of June 7, 2013 for
determining whether to file a brief or use Mr. Castellino's
brief, it appears that plaintiff's state court appeal is still
pending in the Appellate Division. Thus, there is an ongoing
state court proceeding, and the first criterion in the abstention
analysis is met.
With respect to the second factor, it has been held that the
“resolution of domestic matters has been recognized as an
important state interest.” Parent, 485 F. App'x at 503–504
(citing Elk Grove Unified School Dist. v. Newdow, 542 U.S.
1, 12–13 (2004) (“ ‘[T]he whole subject of the domestic
relations of husband and wife, parent and child belongs to
the laws of the States and not to the laws of the United
States.’ ”)). The case also involves matters challenging the
constitutionality of judges' actions. It has been held that
“few interests can be considered more central than a state's
interest in regulating its own judicial system.” Spargo v. New
York State Com'n on Judicial Conduct, 351 F.3d 65, 75 (2d
Cir.2003) (citing Landmark Communications, Inc. v. Virginia,
435 U.S. 829, 848 (1978)). Because this case involves custody
matters, domestic relations, and the conduct of state court
judges in the course of exercising their jurisdictions, the case
falls within the area of important state interest. Thus, the
second factor also weighs in favor of abstention.
Finally, plaintiff has failed to show that there is no avenue
for any constitutional claims in state court. Plaintiff must
demonstrate that state law bars the effective consideration
of her constitutional claims. Spargo, 351 F.3d at 78. The
relevant question is whether the state's procedural remedies
could provide the relief sought, not whether they will provide
the constitutional ruling that plaintiff seeks. Id. at 79. Simply
because a state court has not ruled in plaintiff's favor does not
render the remedy inadequate for purposes of the abstention
doctrine. Parent, 485 F. App'x at 504.
Although plaintiff in this case complains bitterly about her
various assigned attorneys, she has named as defendants only
the Family Court judge assigned to her case and the Chief
Judge of the Appellate Division. She claims that she has been
told that attorneys will not raise issues of judicial bias or
misconduct. The first three of four claims for relief involve
only the alleged “policy” of the Family Court. (Compl. at
12). To the extent that plaintiff alleges that the Family Court
judge engaged in some sort of misconduct, the State of
New York provides a mechanism to file complaints against
state court judges. See N.Y. Jud. Law § § 41–47. New York
has created the State Commission on Judicial Conduct to
review complaints against judges, relating to the conduct,
qualifications, fitness to perform, or the performance of
official duties of any judge. Id. § 41(1). The governing
statute is accompanied by specific regulations. N.Y.Code
Comp.Code & Regs., tit. 22, § 100.2. These provisions are
also reflected in the New York State Constitution, with review
of the Commission's decisions in the New York Court of
Appeals. N.Y. Const., Art. 6, § 22(d).
*8 Thus, plaintiff could raise whatever misconduct claims
she wishes under New York law and regulations. Where
state remedies are available, the federal court should assume
that state procedures will afford an adequate remedy, in the
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absence of “unambiguous authority” to the contrary. Diamond
“D” Construction Corp. v. McGowan, 282 F.3d 191, 202 (2d
Cir.2002) (quoting Pennzoil v. Texaco, 481 U.S. 1, 15 (1987)).
Plaintiff's conclusory claims of bad faith or retaliation are
insufficient to establish that she cannot receive a full and
fair adjudication in the state court. See Bobrowsky v. Yonkers
Courthouse, 777 F.Supp.2d 692, 710 n .27 (S.D.N.Y.2011)
(conclusory allegations will not overcome the presumption
that plaintiff will receive a fair adjudication in state court).
Therefore, even assuming that the court had jurisdiction over
plaintiff's claims, the final abstention requirement weighs in
favor of the court declining jurisdiction. Even if the court were
not to abstain, dismissal would be appropriate.
IV. Judicial Immunity
A. Legal Standards
With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions. Mireless v. Waco, 502 U.S. 9, 9–10 (1991). Judicial
immunity has been created for the public interest in having
judges who are “at liberty to exercise their functions with
independence and without fear of consequences.” Huminski
v. Corsones, 396 F.3d 53, 74 (2d Cir.2004). Judicial immunity
applies even when the judge is accused of acting maliciously
or corruptly. Imbler v. Pachtman, 424 U.S. 409, 419 n. 12
(1976) (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)).
Judicial immunity is immunity from suit, not just immunity
from the assessment of damages. Mitchell v. Forsyth, 472
U.S. 511, 526 (1985). The only two circumstances in which
judicial immunity does not apply is when he or she takes
action “outside” his or her judicial capacity and when the
judge takes action that, although judicial in nature, is taken
“in absence of jurisdiction.” Mireles, 502 U.S. at 11–12.
B. Application
In this case, plaintiff has named two judges as the only
defendants: the Family Court Judge assigned to her case and
the Chief Judge of the Appellate Division, Third Department.
Every action alleged to have been taken by either judge
was in her judicial capacity and within her jurisdiction. The
handling of plaintiff's file and the appointment of counsel is
well within their judicial functions. Neither of the exceptions
to judicial immunity exist in this case. The Second Circuit has
specifically held that a Family Court judge's determination
of reasonable attorneys fees is a judicial act that is entitled
to absolute immunity. Bliven v. Hunt, 579 F.3d 204, 212 (2d
Cir.2009).
Judicial immunity does not bar a claim for prospective
injunctive relief against a judicial officer acting in her
judicial capacity, Pulliam v. Allen, 466 U.S. 522, 541–42
(1984). However, Congress has statutorily provided for such
immunity by amending section 1983 to provide that in “any
action brought against a judicial officer for an act or omission
taken in such officer's judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.” 42 U.S.C. § 1983, as
amended by Federal Courts Improvement Act of 1996, §
309(c), Pub.L. No. 104–317, 110 Stat. 3847, 3853 (1996).
*9 In this case, plaintiff does not allege that any
declaratory relief was unavailable in state court, and
generally, declaratory relief against a judge for actions taken
within his or her judicial capacity is ordinarily available by
appealing the judge's order. LeDuc v. Tilley, No. 05–CV–157,
2005 WL 1475334, at *7 (D. Conn. June 22, 2005) (citing
cases). Plaintiff has appealed the Family Court Judge's order,
and that appeal appears to be pending.
The doctrine of judicial immunity also does not shield judges
from claims for prospective declaratory relief.” LeDuc, 2005
U .S. Dist. LEXIS 12416, at *18. In this case, plaintiff's
request for declaratory relief is purely retrospective. She seeks
a declaratory judgment that past actions that occurred in
the context of the Family Court proceedings violated her
constitutional rights. 4 Although she states her requests for
“relief” in future terms and refers to the judges' actions as
“policies,” essentially, in her first three claims, she is asking
the court to invalidate the actions of the Family Court Judge. 5
Plaintiff's appeal of those orders and the ultimate custody
decision is still pending. Thus, both judges are entitled to
judicial immunity as to all claims. 6
V. Merits
A. Fee “Cap”
The court must also note that plaintiff's fourth cause of
action misstates the law that is the basis for her claim.
Plaintiff asks the court to declare the “policy” of the Appellate
Division to “cap compensation of assigned counsel at 62.7
hours of their work ....“ (Compl. at 13). The fee cap is
not defendants' “policy.” It is a statutory provision. New
York County Law § 722–b provides for the representation
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of persons accused of a crime or parties before the
Family or Surrogates Court. Section 722–b(1) (b) provides
that attorneys so appointed shall receive $75.00 per hour
and reimbursement for expenses reasonably incurred. This
includes trial, appellate and other types of representation.
The statute provides that for “representation on an appeal,
compensation and reimbursement shall be fixed by the
appellate court .” Id. § 722–b(3). While it is true that there
is a “cap” on fees of $4,400.00, the statute provides that
in extraordinary circumstances, the trial or appellate court
may provide for compensation in excess of the limit and
for payment of compensation and reimbursement before the
completion of representation. Id.
The allegations in the complaint are unclear. Although
plaintiff argues that the fee cap is unconstitutional, she
seems to be aware that attorneys may request additional
compensation. See Compl. ¶ 103 (“Upon information and
belief, none of these attorneys applied for additional
compensation ....”) Plaintiff seems to argue that it was
“unlikely” that her attorneys “read the entire record in a matter
of days,” and thus, they did not have enough time to work
on her appeal. She states that “[m]erely to read 1,800 pages
of the record requires 90 hours of work, and that does not
include legal research, drafting or putting the record together,
including tables of contents which is a job in itself.” (Compl.¶
101). Plaintiff assumes that if it takes 90 hours of work, but
an attorney can only devote approximately 62 hours of work
prior to reaching the cap, her attorneys must not have had
sufficient time to prepare a proper appeal because they never
asked for additional compensation. She appears to blame the
cap for this problem.
*10 Plaintiff's allegations fail to state a constitutional claim.
She is speculating that because her attorneys did not ask
for more money (that she is aware of), they must not have
spent enough time on her appeal and thus, plaintiff's access to
courts, due process, and equal protection rights were violated.
There is absolutely no basis for this claim. She was not
affected by the fee cap, 7 and in any event, neither of the
defendants would have had any responsibility for the statute
or for any attorney failing to ask for additional compensation.
B. Hybrid Representation
1. Legal Standard
As stated above, there is no constitutional right to “hybrid”
representation. Collins v. Beaver, No. 03–CV–416, 2005 WL
1801603, at *11 (E.D.N.Y. July 27, 2005). This is true under
either New York law or federal law. Id. (citing People v. White,
73 N.Y.2d 468, 479, cert. denied, 493 U.S. 859 (1989)). Even
a criminal defendant has no right to file a pro se supplemental
brief. Id. Although indigents have a right to appear pro se and
a right to appointed counsel, those rights may not be exercised
at the same time. Id. (citing Ennis v. LeFevre, 560 F.2d 1072,
1075 (2d Cir.1977).
2. Application
Plaintiff claims that the Family Court's “rule or policy”
preventing “new pro se petitions by individuals represented
by assigned counsel” is unconstitutional. Plaintiff appears
to believe that the fact that plaintiff was filing multiple
petitions claiming new instances of alleged abuse of the child,
these constituted “new” petitions that she was entitled to
file pro se, even though she was represented by counsel on
the custody issue. Plaintiff was not entitled to do so, and
she was not denied access to courts when the Family Court
limited her filings to those made by her assigned attorney. No
constitutional claim has been stated.
VI. Amendment
A pro se litigant's complaint should not be dismissed “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, 705 (2d Cir.1991).
In this case, plaintiff is suing two judges. Based upon the
doctrines of abstention and of judicial immunity, plaintiff
would be unable to amend the complaint to state a valid
claim against either of these two judges. Thus, this court will
recommend that, if this report is adopted, the court deny leave
to amend.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion for IFP status (Dkt. No. 2)
is GRANTED ONLY FOR PURPOSES OF FILING THIS
COMPLAINT, and it is further
RECOMMENDED, that plaintiff's complaint be
DISMISSED IN ITS ENTIRETY FOR FAILURE TO
STATE A CLAIM AND BASED ON IMMUNITY,
pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii)-(iii), and it is
RECOMMENDED, that if the court approves this
recommendation, it further certify that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C.
§ 1915(a)(3), and it is
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*11 ORDERED, that the Clerk serve a copy of this Order
upon Plaintiff in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), 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 (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir.1993) (citing Small v. Sec'y of Health and Human
Servs ., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. §
636(b) (1); FED. R. CIV. P. 72, 6(a), & 6(e).
All Citations
Not Reported in F.Supp.3d, 2014 WL 234722
Footnotes
1 For a full discussion of Plaintiff's allegations, reference is made to the Report–Recommendation.
2 Plaintiff objects to the referral of her Complaint to a magistrate judge. Objs. ¶¶ 30–32, 34. However, under
28 U.S.C. 636(b), the Court may designate a magistrate judge to submit recommendations as to dispositive
matters, and the Court may accept, reject, or modify those recommendations.
1 Plaintiff occasionally includes dates in her complaint. However, it is difficult to determine what hearing plaintiff
is discussing. She states in ¶ 35 that after the child was taken there was “also a court hearing” of which she
never received notice. However, in ¶ 37, she discusses a “removal hearing” of which she was improperly
“notified” by CPS driving to plaintiff's house 15 minutes prior to the hearing. It is unclear whether these are
the same, or two separate hearings.
2 Plaintiff may mean December of 2011 because the trial date was January 2012. (Compl.¶ 51).
3 Plaintiff does not include her retained attorney's name in the complaint.
4 As stated above, plaintiff also asks that the court appoint a “federal court monitor” to verify compliance.
(Compl. at 12–13).
5 It is meritless to assert, inter alia, that because she claims that she was appointed counsel that did not perform
to her liking, it was the “rule or policy” of the Chenengo County Family court to “impose upon indigent litigants
assigned counsel who refuse to do their work properly and who are fired for cause.” (Compl. at 12).
6 The court would point out that state law also supports this application of judicial immunity. In Swain v. New
York, 294 A.D .2d 956, 741 N.Y.S.2d 788, 789 (4th Dep't 2002), the Appellate Division held that the allegedly
negligent acts of the court and its clerks in conjunction with the assignment of counsel who allegedly failed
to perfect plaintiff's timely appeal were “cloaked with judicial immunity.” (citations omitted), leave to app. den.
99 N.Y.2d 501, 752 N.Y.S.2d 588 (2002).
7 The adequacy of fees for assigned counsel has been the topic of various suits in both state and federal court,
most of which have been brought by assigned counsel, challenging either the hourly rate or the procedures by
which attorneys are appointed in criminal cases. See e.g. Bliven, supra; Zeigler v. New York, No. 5:11–CV–37,
2013 WL 2461453 (N.D.N.Y. June 7, 2013) (assigned counsel attorneys and criminal defendants challenging
the adequacy of assigned counsel compensation); Campbell v. Poole, No. 04–CV–6261, 2008 WL 2561998,
at *2 (W.D.N.Y. June 26, 2008) (discussing alleged inadequacy of fees in relation to a petitioner's habeas
corpus application based on ineffective counsel); Levinson v. Lippman, 4 N.Y.3d 280, 794 N.Y.S.2d 276, 827
N.E.2d 259 (2005) (attorneys challenged validity of court rule providing for administrative review of fee awards
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in excess of statutory limits-rule held valid); New York County Lawyers Ass'n v. State, 192 Misc.2d 424,
745 N.Y.S.2d 376 (N.Y.Sup.Ct.2002) (New York County attorneys challenging the caps on amounts payable
to assigned counsel—granting preliminary injunction raising the rate paid to counsel, until the legislature
modified N.Y. County Law § 722–b and N.Y. Judiciary Law § 35, raising the rates payable to assigned
counsel).
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DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 2560008
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
John DERAFFELE, Plaintiff,
v.
CITY OF NEW ROCHELLE, Defendant.
No. 15-CV-282 (KMK)
|
Signed 06/13/2017
Attorneys and Law Firms
John DeRaffele, New Rochelle, NY, Pro Se.
Steven C. Stern, Esq., David A. Gold, Esq., Sokoloff Stern
LLP, Carle Place, NY, Counsel for Defendant.
OPINION & ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT
JUDGE
*1 John DeRaffele (“Plaintiff”), proceeding pro se, filed
this Action pursuant to 42 U.S.C. § 1983, alleging that the
City of New Rochelle (the “City” or “Defendant”) violated
his rights under the First, Fourth, Eighth, and Fourteenth
Amendments. (See Am. Compl. (Dkt. No. 56).) Before the
Court is Defendant's Motion To Dismiss Plaintiff's Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)
(6) (the “Motion”). (See Dkt. No. 60.) For the reasons to
follow, Defendant's Motion is granted. 1
I. Background
A. Factual Background
Plaintiff's Amended Complaint contains an abbreviated
factual background as compared to Plaintiff's initial
Complaint in this Action. (Compare Am. Compl. ¶¶ 4–23,
with Compl. 5–14.) 2 The following allegations are taken
from Plaintiff's Amended Complaint and are assumed true for
the purpose of resolving the instant Motion.
In December 1982, Plaintiff purchased the property at 867
Weaver Street, New Rochelle, New York (“867 Weaver
Street”) as “a pre-existing non-conforming home as dictated
by the 1955 zoning ordinance.” (Am. Compl. ¶ 2.)
Plaintiff avers that “[f]rom 1955 to present, no Certificate
of Occupancy has ever been issued for ... 867 Weaver
Street.” (Id. ¶ 7.) In 2007, the property adjacent to 867 Weaver
Street “consist[ed] of 16 acres, two single-family homes, [a]
barn, [a] garage[,] ... [a] commercial building[,] and [a] golf
range.” (Id. ¶ 8.) This land was sold to a developer to build
a “26 single family home sub[ ]division.” (Id.) Access to
this adjacent property was through Plaintiff's driveway and
“Plaintiff believed an easement was in effect at the time
of his purchase and ended upon the sale of [the] adjacent
property in 2007.” (Id.) Plaintiff “agreed to [a] limited use
[by] the developer ... until [the developer] could put in his
own entrance.” (Id.)
When the work on the adjacent property's driveway was
completed, the developer “refused to stop using Plaintiff's
driveway as a construction road.” (Id. ¶ 9.) Plaintiff thus
complained to the City Building Inspector, Paul Vacca
(“Vacca”), who “refused to take any action against the
developer,” and therefore “cause[d] the continuation of
trespassing of heavy duty trucks and equipment through
Plaintiff's property.” (Id.) Due to the inaction, Plaintiff
approached City Manager Charles Strome and Mayor Noam
Bramson about the developer's use of his driveway. (See id.)
*2 On November 12, 2010, one of Plaintiff's tenants “called
the fire department when their carbon monoxide alarm went
off.” (Id. ¶ 10.) Plaintiff contends “[i]t was a simple alarm”
to which “one fire truck responded and within minutes the
problem was corrected.” (Id.) However, Plaintiff's tenants
were precluded from reentering the home for approximately
two hours. (See id.) Vacca then arrived on the scene and
“went through ... Plaintiff's house without a search warrant
or permission.” (Id. ¶ 11.) Vacca instructed Plaintiff to come
to his office on November 16, 2010. (See id.) The following
day, Vacca sent an inspector to “inspect the outside of ...
Plaintiff's house and talk to the tenants on the third floor,”
which Plaintiff contends resulted in “additional tickets under
code 111-8.” (Id. ¶ 12.)
At the November 16, 2010 meeting, Vacca told Plaintiff that
“he [could not] find any files for 867 Weaver Street,” but that
he was “issuing five tickets based on a building card in the
City's files.” (Id. ¶ 13 (internal quotation marks omitted).)
Plaintiff continued to seek files pertaining to his property, (see
id. ¶¶ 13–14), but was ultimately told to file a freedom of
information law (“FOIL”) request, (see id. ¶ 15). On January
15, 2011, Plaintiff met with City Clerk Benny Giles (“Giles”)
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for approximately two hours to review files, after which both
Plaintiff and Giles concluded that “no files for 867 Weaver
Street existed.” (Id. ¶ 16.) On February 15, 2011, Plaintiff
was informed that files were in fact located and the next day,
Plaintiff was given “a brand new folder with several pieces of
paper in it.” (Id. ¶ 18.) Plaintiff ultimately determined that the
files were “bogus,” that he had already inspected them, and
that Giles “should be ashamed of himself.” (Id.)
The prosecution against Plaintiff for the housing violations
proceeded to trial before Judge Kettner in the City Court of
New Rochelle (the “City Court”) in May 2012. (See id. ¶ 21.)
Plaintiff asserts that the trial lasted approximately two years
and resulted in a $12,900 fine against Plaintiff. (See id. ¶ 22.)
Plaintiff paid the fine and immediately appealed the decision.
(See id. ¶ 23.)
Plaintiff seeks an “order ... [d]eclaring that Plaintiff's
rights were violated under the First, Fourth, Eighth[,] and
Fourteenth Amendment[s],” as well as monetary damages in
the amount of five million dollars, and punitive damages. (Id.
at 21–22.)
B. Procedural History
Plaintiff commenced the instant Action on January 15, 2015.
(See Dkt. No. 1.) Pursuant to a Scheduling Order adopted
by the Court on April 15, 2015, (see Dkt. No. 27), the City
and former defendants filed two motions to dismiss, which
were fully briefed on July 13, 2015, (see Dkt. Nos. 32–37,
40, 42, 44–45). In an Opinion & Order (“Opinion”) dated
March 30, 2016, the Court granted the motions and granted
Plaintiff leave to file an Amended Complaint. (See Dkt. No.
46.) Plaintiff filed his Amended Complaint on July 15, 2016,
asserting claims only against the City. (See Dkt. No. 56.)
On September 9, 2016, the City filed the instant Motion To
Dismiss and accompanying papers, (see Dkt. Nos. 60–63),
and on September 22, 2016, Plaintiff filed his opposition, (see
Dkt. No. 64).
On September 30, 2016, Plaintiff filed a Motion to Submit
Supplemental Information Requested by the Court, attaching
the decision of the Appellate Division in People v. DeRaffele,
43 N.Y.S.3d 667 (App. Div. 2016), issued September 20,
2016. (See Dkt. No. 65.) In the decision, the Appellate
Division reversed the June 19, 2014 judgment of Judge
Kettner, “remit[ed] the matter to the City Court for a new
trial before a different judge,” and remitted the $12,900
fine. DeRaffele, 43 N.Y.S.3d at 671. On November 7, 2016,
Defendant filed its papers in reply. (See Dkt. Nos. 69–70.)
On November 17, 2016, without prior permission of the
Court, Plaintiff filed sur-reply papers. (See Dkt. Nos. 76–77.)
Plaintiff additionally filed a document on February 15, 2017,
entitled “Supplemental Information to Court,” attaching over
100 pages of exhibits. (See Dkt. No. 78.)
II. Discussion
A. Standard of Review
*3 “While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration,
citation, and internal quotation marks omitted). Indeed,
Rule 8 of the Federal Rules of Civil Procedure “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Id. (alteration and
internal quotation marks omitted). Instead, a complaint's
“[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555.
Although “once a claim has been stated adequately, it may
be supported by showing any set of facts consistent with
the allegations in the complaint,” id. at 563, and a plaintiff
must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not
“nudged [his] claim[ ] across the line from conceivable to
plausible, the[ ] complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. 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. But 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.’
” (second alteration in original) (citation omitted) (quoting
Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks
a notable and generous departure from the hypertechnical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.”).
In addition, “when ruling on a defendant's motion to dismiss,
a judge must accept as true all of the factual allegations
contained in the complaint.” Erickson v. Pardus, 551 U.S.
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89, 94 (2007) (per curiam). Further, “[f]or the purpose of
resolving [a] motion to dismiss, the [c]ourt ... draw[s] all
reasonable inferences in favor of the plaintiff.” Daniel v. T &
M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y.
2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). “In adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated
on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and
to matters of which judicial notice may be taken.” Leonard
F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Hendrix v. City
of New York, No. 12-CV-5011, 2013 WL 6835168, at *2
(E.D.N.Y. Dec. 20, 2013) (same).
Where, as here, a plaintiff proceeds pro se, the court must
“construe[ ] [his] [complaint] liberally and interpret[ ] [it] to
raise the strongest arguments that [it] suggest[s].” Sykes v.
Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam)
(internal quotation marks omitted); see also Farzan v. Wells
Fargo Bank, N.A., No. 12-CV-1217, 2013 WL 6231615, at
*12 (S.D.N.Y. Dec. 2, 2013) (same), aff'd sub nom. Farzan
v. Genesis 10, 619 Fed.Appx. 15 (2d Cir. 2015). In deciding
a motion to dismiss a pro se complaint, it is appropriate to
consider certain “materials outside the complaint to the extent
that they are consistent with the allegations in the complaint,”
Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514,
at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks
omitted), including “documents that a pro se litigant attaches
to his opposition papers,” Agu v. Rhea, No. 09-CV-4732,
2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010)
(italics omitted); see also Walker v. Schult, 717 F.3d 119,
122 n.1 (2d Cir. 2013) (noting that a court may consider
“factual allegations made by a pro se party in his papers
opposing the motion” (italics omitted)). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro
se party from compliance with relevant rules of procedural
and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555,
559 (S.D.N.Y. 2013) (internal quotation marks omitted); see
also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir.
2008) (“[P]ro se litigants generally are required to inform
themselves regarding procedural rules and to comply with
them.” (italics and internal quotation marks omitted)).
B. Analysis
Plaintiff's Amended Complaint asserts claims only against
the City. 3 Plaintiff alleges that Defendant violated his rights
under the First, Fourth, Eighth, and Fourteenth Amendments.
(See generally Am. Compl.)
1. First Amendment
*4 Plaintiff asserts that “his [c]ivil [r]ights under the First
Amendment [were] violated because ... Plaintiff could never
petition the [C]ity ... for redress after experiencing the
conspiracy that took place ... from ... November 12, 2010 ...
until the trial ended on June 12, 2014.” (Id. ¶ 25.) Plaintiff
questions how he could “ever trust the fire department, police
department, building department or court system in the [C]ity
of New Rochelle after being treated in this manner.” (Id.)
Plaintiff further avers that his First Amendment rights were
violated by the City “through its employees” because they
were “aware of what was going on and took no action to
stop it.” (Id.) In response, Defendant contends that “Plaintiff
pleads no facts demonstrating the City or its employees
interfered with his right to petition the government.” (Mem.
of Law in Supp. of Def.'s Mot. To Dismiss (“Def.'s Mem.”)
10 (Dkt. No. 61).)
“[T]he right of access to the courts is an aspect of the First
Amendment right to petition the Government for redress
of grievances.” Bill Johnson's Rests., Inc. v. N.L.R.B., 461
U.S. 731, 741 (1983); see also Hamilton v. Fischer, No.
12-CV-6449, 2015 WL 8207439, at *2 (W.D.N.Y. Dec. 7,
2015) (“The Supreme Court has ‘made explicit that the [First
Amendment] right to petition extends to all departments of
the Government, and that the right of access to the courts
is but one aspect of the right of petition.’ ” (alterations and
some internal quotation marks omitted) (quoting BE & K
Constr. Co. v. N.L.R.B., 536 U.S. 516, 525 (2002))). Plaintiff
was afforded a full trial before Judge Kettner. To the extent
Plaintiff was displeased with the outcome of that trial, he had
—and took advantage of—the right to appeal the decision.
Indeed, Plaintiff recently succeeded on appeal, was awarded
a new trial before a different City Court judge, and the fines
were remitted. See DeRaffele, 43 N.Y.S.3d at 671. Moreover,
any claim that Plaintiff was deprived of his right to petition
the government for redress is belied by the fact of the filing
of this Action.
The crux of Plaintiff's right-to-petition claim appears to be a
claim for retaliatory prosecution under the First Amendment.
(See Am. Compl. ¶ 25 (“Vacca sought revenge against ...
Plaintiff for his complaints sent to ... Vacca's boss, the City
Manager, Mr. Charles Strome and Mayor Noam Bramson
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regarding the mishandling of Plaintiff's complaints regarding
his driveway.”).) As noted in the Court's prior Opinion, this
claim is barred by the statute of limitations. (See Opinion
18 n.14 (“[S]uch a cause of action would have accrued
on November 16, 2010 when the citations were issued ...
[and] that claim would have expired three years later on
November 16, 2013, long before the commencement of the
instant Action.” (citations omitted)).) Plaintiff has provided
no additional information to justify the tolling of the statute
of limitations. Accordingly, Plaintiff's claims under the First
Amendment are dismissed.
2. Fourth Amendment
In its prior Opinion, the Court found that “Plaintiff's Fourth
Amendment claim clearly accrued on November 12, 2010, the
date on which the allegedly illegal search and entry occurred,”
and therefore was “time-barred unless there [was] a basis for
tolling of the statute of limitations.” (Opinion 19 (citation
omitted).) Equitable tolling of the statute of limitations
is applied “only in ‘rare and exceptional circumstances,’
where ... ‘extraordinary circumstances’ prevented a party
from timely performing a required act, and the party ‘acted
with reasonable diligence throughout the period he sought
to toll.’ ” Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir.
2005) (alteration omitted) (quoting Doe v. Menefee, 391
F.3d 147, 159 (2d Cir. 2004)). Among these circumstances
are “[f]raudulent or deceptive acts on the part of [the]
defendants ..., but only to the extent that the fraud concealed
the existence of [the] plaintiff's cause of action and only for as
long as the fraud or deception actually prevented the plaintiff
from knowing or having reason to know that he has been
injured.” Verdon v. Consol. Rail Corp., 828 F. Supp. 1129,
1140 (S.D.N.Y. 1993).
*5 In his Amended Complaint, Plaintiff provides no facts
warranting tolling of the limitations period, but rather
reiterates the allegations that “Vacca entered [Plaintiff's]
home without probable cause or a search warrant.” (Am.
Compl. ¶ 27.) As the Court previously noted, “Plaintiff
does not allege any [facts suggesting fraud concealed the
existence of Plaintiff's claims] and, to the contrary, suggests
that he knew of the purported violations at the time they
occurred.” (Opinion 20.) Indeed, Plaintiff acknowledges that
he was present at the time of the search and entry, (see Am.
Compl. ¶ 11), and thus, it is clear that on November 12,
2010, he knew “of the injur[ies] which [are] the basis of
his [A]ction,” Pearl v. City of Long Beach, 296 F.3d 76,
80 (2d Cir. 2002) (internal quotation marks omitted); accord
Hueber v. McCune, No. 14-CV-49, 2014 WL 2047763, at *4
(W.D.N.Y. May 19, 2014) (“In the context of an allegedly
illegal entry into an individual's home, the plaintiff's claim
accrues when the plaintiff knows or should have known
that the entry occurred.”), aff'd, 589 Fed.Appx. 9 (2d Cir.
2014). Therefore, for the reasons stated in the Court's prior
Opinion, Plaintiff's Fourth Amendment claims are dismissed.
(See generally Opinion 19–21.)
3. Eighth Amendment
In his Amended Complaint, Plaintiff newly asserts that the
City violated his rights under the Eighth Amendment when
it “levied excessive fines of $12,900 for five violations
against ... Plaintiff.” (Am. Compl. ¶ 29.) The Court agrees
with Defendant that Plaintiff's Eighth Amendment claim is
moot. (See Reply Mem. of Law in Further Supp. of Def.'s
Mot. To Dismiss 8 (Dkt. No. 70).)
As noted, the Appellate Division reversed the conviction of
Plaintiff, ordered a new trial, and ordered remittance of any
fines Plaintiff paid. See DeRaffele, 43 N.Y.S.3d at 671. “A
case becomes moot ... when it is impossible for a court to
grant any effectual relief whatever to the prevailing party.”
Am. Freedom Def. Initiative v. Metro. Transp. Auth., 815 F.3d
105, 109 (2d Cir. 2016) (internal quotation marks omitted).
Whether excessive or not, Plaintiff has been returned the
$12,900. Thus, the relief Plaintiff seeks is now moot and
accordingly, his Eighth Amendment claim is dismissed. See,
e.g., Air Espana v. Brien, 165 F.3d 148, 153 (2d Cir. 1999)
(finding that the plaintiff's claims as to “fines that were
canceled ... are moot”).
4. Fourteenth Amendment
In the Amended Complaint, Plaintiff identifies 10 ways in
which his “rights under the Fourteenth Amendment were
violated.” (Am. Compl. ¶ 31.) These alleged violations
include: (1) the City Court's “grant[ing of] the Motion in
Limine”; (2) “[t]he conspiracy that was formed by ... Vacca
and included numerous department heads that lied under
oath to protect ... Vacca's false testimony and evidence”; (3)
“[t]he filing of false documents during the trial”; (4) “[t]he
delay of the trial[,] violating Plaintiff's right to a speedy
trial”; (5) “[t]he [City Court] sustaining ... the Prosecutor[’s]
(hundreds) of objections in order to prevent the truth from
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being revealed”; (6) the City Court's “[r]efusal to have [the
government's] witness declared a hostile witness”; (7) the
City Court's “[r]efusal to grant a mistrial”; (8) the City Court's
“refus[al] to acknowledge judicial review of laws”; (9) the
City Court's “refus[al] to acknowledge the truthful testimony
of Plaintiff's witnesses”; and (10) the City Court's “changing
the [b]urden of [p]roof.” (Id.) In his opposition to Defendant's
Motion, Plaintiff also argues that the “due process claim stems
from the fact that the City did not allow a notice to cure prior
to writing the five tickets.” (Reply in Opp'n to Mem. in Supp.
of Mot. To Dismiss (“Pl.'s Opp'n”) 26 (Dkt. No. 64).)
Each of Plaintiff's claims involves conduct effected by former
defendants Judge Kettner and prosecutor Murphy, with the
exception of the second claim, alleging the existence of a
conspiracy between former defendants Vacca, Whittemore,
Kelly, Murphy, and Judge Kettner. As detailed in the Court's
prior Opinion, such individuals have judicial, prosecutorial,
and testimonial immunity, (see generally Opinion 21–28),
and as explained in the Court's prior Opinion and infra,
the City cannot be held liable for the conduct of these
employees. 4 Moreover, to the extent these claims involve
alleged irregularities during the trial, they could be and, in
fact, were addressed on appeal by the Appellate Division.
5. Monell
*6 Defendant contends that Plaintiff has failed to state a
claim pursuant to Monell v. Department of Social Services
of the City of New York, 436 U.S. 658 (1978), as “[P]laintiff
suffered no violation of his constitutional rights.” (Def.'s
Mem. 17.) Additionally, Defendant argues that “[t]here are
no factual allegations that the alleged wrongful conduct took
place pursuant to some municipal policy, practice, or custom,”
and “[P]laintiff does not allege that any final policymaking
official took action against him.” (Id.)
In its prior Opinion, the Court found that because “Plaintiff
ha[d] failed to state a constitutional claim against any
individual Defendant, ... the Complaint [could not] satisfy
th[e] prerequisite to municipal liability.” (Opinion 33 (internal
quotation marks omitted).) Moreover, the Court held that
“even if any underlying cause of action had survived, Plaintiff
ha[d] not plausibly alleged a Monell claim against the City,
necessitating dismissal on this independent basis as well.” (Id.
at 34.) 5
Plaintiff has failed to cure the deficiencies identified in his
initial Complaint. Plaintiff's Amended Complaint still “does
not plead the existence of a municipal policy or custom at
all,” (id.), but rather realleges the existence of a conspiracy
in which the City “knowingly allow[ed] its employees ... to
falsely charge Plaintiff with [five] violations, ... enlist[ed]
other department heads to lie and present false reports against
Plaintiff ..., [and] enlisted the help of ... Judge ... Kettner[ ] to
ensure a victory on [the City's] behalf,” (Am. Compl. ¶ 1).
It is well established that a Monell claim cannot lie in the
absence of an underlying constitutional violation. See Segal
v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006)
(“Monell does not provide a separate cause of action ...;
it extends liability to a municipal organization where that
organization's failure to train, or the policies or customs
that it has sanctioned, led to an independent constitutional
violation.”); Stewart v. Schiro, No. 13-CV-3613, 2015 WL
1854198, at *16 (E.D.N.Y. Apr. 22, 2015) (explaining
that where “the [c]ourt has already determined that [the]
[p]laintiff failed to demonstrate an underlying constitutional
violation...., the Monell claim necessarily fails”); Thomas v.
Westchester County, No. 12-CV-6718, 2013 WL 3357171,
at *6 (S.D.N.Y. July 3, 2013) (“Absent an underlying
constitutional violation, a Monell claim cannot lie.”). As
detailed supra, Plaintiff has failed to allege a constitutional
violation pursuant to the First, Fourth, Eighth, or Fourteenth
Amendments. See Claudio v. Sawyer, 675 F. Supp. 2d 403,
408 (S.D.N.Y. 2009) (“Under Second Circuit case law, ...
a prerequisite to municipal liability under Monell is an
underlying constitutional violation by a state actor.”), aff'd,
409 Fed.Appx. 464 (2d Cir. 2011). Once a “district court
properly [finds] no underlying constitutional violation, its
decision not to address the municipal defendants' liability
under Monell [is] entirely correct.” Segal, 459 F.3d at 219;
see also Bolden v. County of Sullivan, 523 Fed.Appx. 832,
834 (2d Cir. 2013) (summary order) (“[B]ecause the district
court properly found no underlying constitutional violation,
its decision not to address the [c]ounty defendants' liability
under Monell was correct.”); Lener v. Hempstead Pub. Sch.,
55 F. Supp. 3d 267, 283 n.14 (E.D.N.Y. 2014) (“[W]hen a
plaintiff lacks any underlying claim of a deprivation of a
constitutional right, the claim of municipal liability on the part
of the municipal defendant must be dismissed as well.”).
*7 In his opposition to Defendant's Motion, Plaintiff—for
the first time—contends that “[t]he conspiracy was a common
practice of the City of New Rochelle” and that “Vacca ... [and
a] task force le[ ]d by Mr. Joseph Girardi ... would go through
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every house in [W]est New Rochelle, enter the premises
without a search warrant and then ticket the owner for illegal
multi-families when in fact these houses were legal non-
conforming pre-existing multi-family houses.” (Pl.'s Opp'n
29–30.) 6 Under Monell, “an act performed pursuant to
a ‘custom’ that has not been formally approved by an
appropriate decisionmaker may fairly subject a municipality
to liability on the theory that the relevant practice is so
widespread as to have the force of law,” Bd. of Cty. Comm'rs
of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997), which is
to say, that it is a “longstanding practice or custom which
constitutes the ‘standard operating procedure’ of the local
government entity,” Jett v. Dall. Indep. Sch. Dist., 491 U.S.
701, 737 (1989); see also Kern v. City of Rochester, 93
F.3d 38, 44 (2d Cir. 1996) (noting that a municipality's
custom “need not be memorialized in a specific rule or
regulation”). Therefore, a plaintiff may establish municipal
liability by demonstrating that a municipality “indirectly
caused the misconduct of a subordinate municipal employee
by acquiescing in a longstanding practice or custom which
may fairly be said to represent official policy.” Miller v.
County of Nassau, 467 F. Supp. 2d 308, 314 (E.D.N.Y. 2006).
To prevail on this theory of municipal liability, however, a
plaintiff must prove that the custom at issue is permanent
and well settled. See City of St. Louis v. Praprotnik, 485 U.S.
112, 127 (1988) (noting that the Supreme Court “has long
recognized that a plaintiff may be able to prove the existence
of a widespread practice that, although not authorized by
written law or express municipal policy, is ‘so permanent
and well settled as to constitute a custom or usage with the
force of law’ ”) (some internal quotation marks omitted)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–
68 (1970)). As the Supreme Court emphasized in Monell,
Congress enacted § 1983 to impose liability on municipalities
“because of the persistent and widespread discriminatory
practices of state officials,” and out of recognition that such
practices could become “so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law.” 436 U.S.
at 691 (some internal quotation marks omitted).
Here, Plaintiff's single conclusory statement in his opposition
that “the conspiracy was a common practice” is not sufficient
to state a claim for Monell liability under § 1983. See Gordon
v. City of New York, No. 10-CV-5148, 2012 WL 1068023, at
*4 (E.D.N.Y. Mar. 29, 2012) (“[M]ere conclusory references
to a policy or custom, with no supporting facts, will not
suffice to state a claim of § 1983 municipal liability.”); see
also Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 124 (2d
Cir. 1991) (“[O]ur prior cases suggest that an allegation of
municipal policy or custom would be insufficient if wholly
conclusory.”); 5 Borough Pawn, LLC v. City of New York,
640 F. Supp. 2d 268, 299 (S.D.N.Y. 2009) (dismissing Monell
claim because the plaintiffs' “assertion that the [c]ity ha[d]
an unconstitutional policy [was] based on nothing more than
their unsupported supposition”). The alleged “practice” of
visiting “every house in [W]est New Rochelle,” conducting
purportedly warrantless searches, and ticketing owners for
“legal non-conforming” uses, (Pl.'s Opp'n 30), does not rise
to the type of “permanent, or close to permanent” practice
which can trigger Monell liability, Davis v. City of New
York, 228 F. Supp. 2d 327, 346 (S.D.N.Y. 2002), aff'd, 75
Fed.Appx. 827 (2d Cir. 2003) (explaining that “[w]idespread
means that [the unconstitutional acts in question] are common
or prevalent throughout the [government body]; well-settled
means that the [unconstitutional acts in question] have
achieved permanent, or close to permanent, status”).
Furthermore, Plaintiff has not sufficiently alleged that a City
policymaker was responsible for the alleged unconstitutional
practice. See Pignone v. Village of Pelham Manor, No. 10-
CV-2589, 2014 WL 929805, at *4 (S.D.N.Y. Mar. 6, 2014)
(noting that “[a] plaintiff bears the burden of establishing
an official's status as a final policymaker with proof of
the official's scope of employment and his role within the
municipal or corporate organization”); cf. Dellutri v. Village
of Elmsford, 895 F. Supp. 2d 555, 568 (S.D.N.Y. 2012)
(“[The] [p]laintiff only alleges that the inspector and assistant
inspector issued a notice of violation. Without more, this
does not demonstrate that these individuals exercised final
policymaking authority.”). Indeed, even if the Court were to
assume that either Vacca or Joseph Girardi were policymakers
for the City, Plaintiff would need to demonstrate that they
were “policymaker[s] with respect to the particular issue
involved here” in order to hold the City liable for their
actions. Baity v. Kralik, 51 F. Supp. 3d 414, 437 (S.D.N.Y.
2014) (internal quotation marks omitted). As the Court
noted in its prior Opinion, Plaintiff is unable to do so,
as “ ‘the act of issuing citations cannot be said to be a
matter of policymaking.’ ” (See Opinion 35–36 n.26 (quoting
Emanuele v. Town of Greenville, 143 F. Supp. 2d 325, 335
(S.D.N.Y. 2001)).)
*8 To the extent Plaintiffs opposition identifies City
Manager Strome as a policymaker because he “became aware
of the conspiracy and did nothing to stop it and gave his
formal approval,” (Pl.'s Opp'n 30), Plaintiff offers no factual
support for this boilerplate assertion. In any event, as noted
above, Plaintiffs failure to establish “any underlying claim
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of a deprivation of a constitutional right” requires that his
“claim of municipal liability on the part of the [City] ... be
dismissed.” Lener, 55 F. Supp. 3d at 283 n.14. In the absence
of sufficient facts to establish municipal liability, the Court
dismisses all claims against the City.
III. Conclusion
In light of the foregoing analysis, the Court grants Defendant's
Motion To Dismiss Plaintiffs Amended Complaint.
Because Plaintiff has already amended his Complaint in
response to a decision on the merits of his claims, but has still
failed to state a claim, the Amended Complaint is dismissed
with prejudice. See Denny v. Barber, 576 F.2d 465, 471 (2d
Cir. 1978) (holding that the plaintiff was not entitled to “a
third go-around”); Melvin v. County of Westchester, No. l4-
CV-2995, 2016 WL 1254394, at *24 n.19 (S.D.N.Y. Mar.
29, 2016) (granting motion to dismiss with prejudice where
“[the] [p]laintiff has already had two bites at the apple, and
they have proven fruitless” (alteration and internal quotation
marks omitted)).
The Clerk of Court is respectfully requested to terminate the
pending Motion, (see Dkt. No. 60), and close this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 2560008
Footnotes
1 Plaintiff initially brought this Action against the City, Benny Giles, Douglas Kelly, Brian Murphy, Louis Chipper
Perone, Charles Strome, Paul Vacca, Daniel Whittemore, James Generoso, and Judge Susan Kettner,
alleging that all defendants violated his constitutional rights under the First, Fourth, Fifth, and Fourteenth
Amendments. (See Compl. (Dkt. No. 1).) In an Opinion & Order (“Opinion”) issued March 30, 2016, the Court
granted the City's and former defendants' motions to dismiss and granted Plaintiff leave to file an Amended
Complaint. (See Opinion 36 (Dkt. No. 46).) Plaintiff filed the instant Amended Complaint on July 15, 2016,
naming only the City as Defendant. (See Am. Compl.)
2 For a fuller recitation of the relevant factual background, see the Court's prior Opinion. (See Opinion 2–5.)
3 While Plaintiff continues to detail the allegedly wrongful acts of City employees, the “Introduction,” “Nature
of the Suit,” and “Parties” sections of Plaintiff's Amended Complaint make clear that Plaintiff intends only
to name the City as Defendant. (See Am. Compl. 1 (“Plaintiff ... brings this suit against the City of New
Rochelle....”); id. ¶ 1 (“This [A]ction is brought by Plaintiff to seek damages from ... Defendant from knowingly
allowing its employees under the umbrella of the City [to violate Plaintiff's rights]”); id. ¶ 2 (describing the
Parties as Plaintiff and “[t]he City of New Rochelle[,] consist[ing] of a mayor and five members of [the] city
council who guide the [C]ity”).)
4 For the reasons stated in the Court's March 2016 Opinion, Plaintiff's allegations that “[t]he delay of the
trial violat[ed] [his] right to a speedy trial,” (Am. Compl. ¶ 31), are dismissed, (see Opinion 10 n.5 (“Sixth
Amendment protections did not apply to Plaintiff's prosecution in the City Court.”)).
5 As the Court's prior Opinion provides an overview of the legal landscape regarding municipal liability under
§ 1983, the Court does not reiterate the relevant case law here. (See generally Opinion 31–35.)
6 It is well established that the Court may consider “factual allegations made by a pro se party in his papers
opposing the motion.” Walker, 717 F.3d at 122 n.1 (italics omitted).
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KeyCite Blue-Striped Flag
Appeal Filed by Diallo v. New York City Police Department, 2nd Cir.,
March 19, 2025
2025 WL 522514
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Ibrahima DIALLO, Plaintiff,
v.
NEW YORK CITY, County of Westchester,
Westchester Medical Center, 1-10 New York
City Police Officers “John Does”, and 1-10
Westchester County Department of Public
Safety Police Officers “John Does”, Defendants.
No. 23-CV-1238 (LAP)
|
Signed February 18, 2025
Attorneys and Law Firms
T. Edward Williams, Williams LLP, New York, NY, for
Plaintiff.
Elissa Beth Jacobs. New York City Law Department. New
York, NY, Joseph Anthony Russo, Phillips & Associates,
Attorneys at Law, PLLC, New York, NY, for Defendant New
York City.
Loren Zeitler, Westchester County Dep't of Law, White
Plains, NY, for Defendant County of Westchester.
William Harold Bave, White Plains, NY, for Defendant
Westchester Medical Center.
MEMORANDUM & ORDER
LORETTA A. PRESKA, Senior United States District Judge:
*1 Before the Court are Defendants Westchester County
(“WC”), Westchester Medical Center (“WMC”), and the City
of New York's (“NYC”) (together, “Defendants”) motions
to dismiss the Amended Complaint (dkt. nos. 69, 72, 86) 1
and Plaintiff's oppositions (dkt. nos. 81, 90). 2 Plaintiff also
moves to strike NYC's reply to Plaintiff's opposition to NYC's
motion to dismiss. 3 Subsequently, NYC moves to strike the
substantive portions of Plaintiff's letter regarding its motion
to strike. 4 In addition, Plaintiff also filed a motion requesting
leave to file a SAC. 5 Defendants jointly oppose the motion. 6
In Defendants' opposition to Plaintiff's request for leave to
file a SAC, Defendants alternatively propose that the Court
consider their motions to dismiss in light of the SAC. (See
Joint SAC Opp'n. at 2-3.)
For the reasons set out below, Plaintiff's motion to strike, (Pl.
Mot. to Strike NYC Reply), is DENIED. NYC's motion to
strike Plaintiff's letter, (NYC Opp'n to Pl. Mot. to Strike), is
GRANTED. Plaintiff's motion for leave to amend, (Pl. SAC
Mot.), is DENIED, and Defendants WC and NYC's motions
to dismiss Plaintiff's federal claims, (WC Mot. to Dismiss;
NYC Mot. to Dismiss), are GRANTED. The Court declines
to exercise supplemental jurisdiction over Plaintiff's state law
claims and therefore dismisses all remaining state law claims
and Defendant WMC's motion to dismiss, (WMC Mot. to
Dismiss), without prejudice to renewal in a state court of
competent jurisdiction.
I. Background
*2 The following facts are drawn from Plaintiff's proposed
SAC (see dkt. no. 96-1 (hereinafter “SAC”)) and are taken as
true for purposes of resolving the instant motions. See Faber
v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011).
A. Factual Background
Plaintiff is a Guinean man who has been living in the United
States as a political asylee since 2010. (See SAC ¶¶ 1, 18.) At
the time of his arrest in 2018, he was a resident of the Bronx
and earned a living working as a dishwasher and handyman.
(Id. ¶¶ 21-26.) Although Plaintiff previously had interactions
with law enforcement, he did not have a criminal record. (Id.
¶¶ 27, 29-36.)
In the early morning hours of February 18, 2018, a robbery
occurred in Yonkers, New York. (Id. ¶¶ 40-41; dkt. no. 1, Ex.
1 at 5. 7 ) At approximately 4:30 a.m., the victim, Rosa, and
his friend, Richard Ferreras, returned to Rosa's house after a
concert. (See dkt. no. 1, Ex. 1 at 5.) As they approached the
house, three men ran up from behind. (Id.) One of the males,
later identified as Musa Krubally, pushed Rosa to the ground
and continued towards Mr. Ferreras, while another stated he
had a gun and would use it if they fought back. (Id.) The
three assailants stole a designer bag, a gold Cuban link chain,
and an expensive watch before retreating to their getaway car,
where a fourth male was waiting for them. (Id.) As the robbers
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drove off, Rosa noticed their car had a New Jersey temporary
plate labeled 060293R. (Id.) The whole encounter lasted only
moments. (Id.) When Rosa and Mr. Ferrara were on the phone
with the police, Mr. Ferrara indicated he would not be able
to identify anyone. (Id.) Rosa was unsure whether he would
be able to identify the perpetrators but indicated that he “may
possibly be able to identify one of the suspects, the one who
took his property.” (Id. at 6.) Rosa described two perpetrators
as wearing masks, including the one that threatened the gun.
(Id. at 5-6.) Rosa described the male wearing camouflage
pants as thinner and not wearing a mask. (Id. at 6.) Video
surveillance recovered from the scene could not identify the
robbers. (Id. at 5.)
In March of 2018, a month after the robbery, the New York
City Police Department (“NYPD”) informed the Yonkers
Detectives that there had been similar robberies involving a
vehicle with various temporary New Jersey tags. (Id. at 6.)
The NYPD sent the Yonkers Detectives several images of
suspects from the NYPD investigation. (Id.) All five images
were of people who were Guinean. (SAC ¶¶ 136-38.) Based
on this information, Yonkers Detectives prepared a photo
array which contained an image of Plaintiff. 8 (Dkt. no. 1, Ex.
1 at 6.) The photo array consisted of six images, and Plaintiff
was the only Guinean in the photo array. (SAC ¶¶ 142-45.)
On March 18, 2018, Rosa appeared at the Yonkers Detective
Division to view several photo arrays. (Dkt. no. 1, Ex. 1 at
6.) Before he was shown the photo array, detectives told him
that the individuals who robbed him were Guineans. (SAC
¶ 146.) Rosa viewed several double-blind photo arrays and
identified Plaintiff as the man “wearing the camo pants and
who threatened that he had a gun” and Krubally as the “big
guy” who took his property. (Dkt. no. 1, Ex. 1 at 6.)
*3 On November 30, 2018, “the People presented relevant
and legally sufficient evidence of the above crimes to the
grand jury, and a true bill was voted against [Plaintiff]. The
only witness to testify was Rosa.” (Id.) On December 4,
2018, an indictment was filed, and an arrest warrant was
obtained for Plaintiff. (Id.) Co-defendant Krubally sought a
pre-indictment disposition and subsequently pled guilty to
a reduced count of Attempted Robbery in the First Degree.
(Id. at 6-7.) Several years later, on October 19, 2021, the
indictment warrant for Plaintiff was executed. (Id. at 7.)
Plaintiff was arraigned on the indictment and pled not guilty.
(Id.)
Plaintiff contends that his “arrest was brutal.” (SAC ¶
96.) Police from the Westchester County Department of
Public Safety (“WDPS”) and NYPD appeared at Plaintiff's
apartment around 6:00 a.m. (Id. ¶ 97.) During his arrest,
he informed the officers that he suffers from tuberculosis
of the spine. (Id. ¶¶ 98-99.) Nonetheless, the police “bent,
squeezed, and shoved [Plaintiff] such that [Plaintiff's] spine
curved to where he lost feeling in his lower body and his
extremities.” (Id. ¶ 100.)
His experience in jail was no better. (Id. ¶ 102.) Upon arriving
to jail, he was subject to a strip search and isolated in a cell
because the Westchester County Department of Corrections
(“WDOC”) incorrectly believed that tuberculosis of the spine
was contagious. (Id. ¶¶ 103-105.) His cell was too cold, which
caused his condition to worsen. (Id. ¶ 111.) He was denied a
mat to pray in accordance with his Muslim faith. (Id. ¶ 107.)
This resulted in his inability to pray forty different times. (Id.)
Plaintiff also claims that the medical treatment he received
was inadequate. (Id. ¶¶ 106, 108, 110.) Soon after arriving
at jail, he was seen by WMC which he claims, “refused to
allow him to take his medication in the proper dosage.” (Id.
¶ 108.) Plaintiff claims that because he was denied proper
medical treatment, he “suffered an extraordinary amount of
pain while confined.” (Id. ¶ 122.) Plaintiff also claims that
he is depressed and lost his employment and his home. (Id.
¶¶ 126-132.) Plaintiff was jailed for eight days until he was
released on bail. (Id. ¶ 125.)
Roughly one year after being released, on October 12, 2022,
the District Attorney's Office filed a motion to dismiss the
indictment. (Dkt. no. 1, Ex. 1 at 3.) The District Attorney's
Office explained that “due to the quality of the evidence and
due to the passage of time since the incident, there is a legal
impediment to defendant Ibrahima Diallo's conviction.” (Id.
at 8.) On October 13, 2022, the action against him was
dismissed. (Id. at 10.)
B. Procedural Background
On February 15, 2023, Plaintiff filed his original Complaint
against WC, NYPD, WDOC, WDPS, WMC, and multiple
“John Doe” Officers of NYPD and WDPS. (Dkt. no. 10.)
On May 4, 2023, WMC filed a motion for judgment on the
pleadings. (Dkt. no. 41.) On May 5, 2023, WC, WDOC, and
WDPS, filed a motion to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Dkt. no. 44.) On
August 28, 2023, NYPD also filed a motion to dismiss the
Complaint pursuant to Rule 12(b)(6). (Dkt. no. 59.)
On March 19, 2024, the Court issued an order and
memorandum granting Defendants' motions. (Opinion &
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Order (“Mar. 19 Order”), dated Mar. 19, 2024 [dkt. no.
67].) First, the Court addressed the misjoinder of non-
suable City and County Defendants, substituting NYC for
all claims against the NYPD, and WC for all claims
against WDPS and WDOC. (Id. at 6.) Accordingly, NYC,
WDPS, and WDOC were dismissed as parties from the
action. (Id.) Next, the Court granted Defendants' motions to
dismiss Plaintiff's federal claims and declined to exercise
supplemental jurisdiction over the remaining state law claims,
dismissing them without prejudice to allow leave to amend.
(Id. at 15.)
*4 On April 18, 2024, Plaintiff filed his First Amended
Complaint against WC, NYC, WMC, and multiple “John
Doe” Officers from the NYPD and WDPS. (Dkt. no. 68.) On
May 2, May 7, and June 10, 2024, WC, WMC, and NYC,
respectively, filed separate motions to dismiss, each pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
(WC Mot. to Dismiss; WMC Mot. to Dismiss; NYC Mot. to
Dismiss)
On May 7, 2024, Plaintiff filed a letter requesting leave to file
a motion to strike WMC's motion to dismiss. (Dkt. no. 75.)
On May 17, 2024, the Court granted in part and denied in
part Plaintiff's motion and stated that the Court will construe
WMC's motion to dismiss as a motion for judgment on the
pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure. (Dkt. no. 80 at 3-4.)
On July 9, 2024, Plaintiff filed a motion to strike NYC's reply
to his memorandum of law in opposition to NYC's motion to
dismiss. (Pl. Mot. to Strike NYC Reply.) In NYC's opposition
to Plaintiff's motion, NYC also cross-moved to strike the latter
two-thirds of Plaintiff's letter-motion on the basis that it is an
improper sur-reply to NYC's reply in support of its motion to
dismiss. (NYC Opp'n to Pl. Mot. to Strike at 2.)
On August 20, 2024, Plaintiff filed a motion seeking leave to
file a SAC. (Pl. SAC Mot.) On the same day, Defendants filed
a joint letter in opposition requesting the Court deny Plaintiff
leave to amend, or, in the alternative, decide the outstanding
motions to dismiss and motion for judgment on the pleadings
against the SAC. (Joint SAC Opp'n at 2-3.)
II. Applicable Law
A. Motions to Strike
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure
a court may, on its own or on motion, “strike from a
pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Apart
from pleadings, a court has “inherent authority to strike any
filed paper which it determines to be abusive or otherwise
improper under the circumstances.” Sierra v. United States,
No. 97 Civ. 9329 (RWS), 1998 WL 599715, at *9 (S.D.N.Y.
Sept. 10, 1998); see also Nat. Res. Def. Council, Inc. v. U.S.
Food & Drug Admin., 884 F. Supp. 2d 108, 115 n.5 (S.D.N.Y.
2012).
i. Local Rule 7.1
At the time of the relevant filings, Local Rule 7.1(b) stated:
“Except for letter-motions as permitted by Local Rule 7.1(d)
or as otherwise permitted by the court, all oppositions and
replies with respect to motions must comply with Local Civil
Rules 7.1(a)(2) and (3) above, [which require a memorandum
of law and supporting affidavits and exhibits] ....” 9 S.D.N.Y.
L.R. 7.1.(b).
Local Rule 7.1(d) allows letter-motions for “[a]pplications
for extensions or adjournments, applications for a pre-motion
conference, and similar non-dispositive matters ....” S.D.N.Y.
L.R. 7.1.(d). On July 1, 2024, Local Rule 7.1(d) was revised
“to specify the types of motions that may be brought by letter-
motion and to make explicit that other motions may not be
brought by letter-motion ....” Id.
Generally, the Court “has broad discretion to determine
whether to overlook a party's failure to comply with local
court rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d
Cir. 2001), abrogated in part on other grounds by Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d
119 (2009); see, e.g., Commerzbank AG v. U.S. Bank, N.A.,
100 F.4th 362, 377-78 (2d Cir. 2024). “It is the business of
the district court to determine whether fairness demands that
noncompliance be excused.” Wight v. BankAmerica Corp.,
219 F.3d 79, 85-86 (2d Cir. 2000) (internal citations omitted).
ii. Sur-reply
*5 The Local Rules do not specifically contemplate sur-
replies, but they also do not bar their use. However, sur-replies
are not allowed absent leave of the Court, and they “should
be viewed as the exception and not the rule.” United States v.
Int'l Bus. Machs. Corp., 66 F.R.D. 383, 384 (S.D.N.Y. 1975).
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If a party files a document responding to the substance of
the other party's reply in support of its motion, the Court will
construe the document as a sur-reply. See, e.g., Trombetta
v. Novocin, 18 Civ. 993 (RA) (SLC), 2020 WL 6365171, at
*1 (S.D.N.Y. Oct. 29, 2020) (construing a plaintiff's “second
response” as a sur-reply); Penzo v. Consol. Edison Co.
of N.Y., Inc., 19 Civ. 07478, 2024 WL 3824072, at *16
(S.D.N.Y. Aug. 15, 2024) (same). “Sur-replies are appropriate
only in ‘the exceptional though rare case’ when a ‘party
demonstrates to the court that papers to which it seeks to file
a reply raise new issues which are material to the disposition
of the question before the court,’ ” or when the court orders
additional briefing for its own benefit. S.E.C. v. Xia, 21 Civ.
5350 (PKC) (RER), 2022 WL 2784871, at *1 (E.D.N.Y. July
15, 2022) (quoting Int'l Bus. Machs. Corp., 66 F.R.D. at 384);
see also Penzo, 2024 WL 3824072, at *16.
B. Motion for Leave to Amend
It is well established that, where a party cannot amend as a
matter of course, courts should freely give leave to amend
a complaint “when justice so requires.” See Fed. R. Civ. P.
15(a)(2); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227,
9 L.Ed.2d 222 (1962); Keller v. Schoharie Cty. Dep't of Soc.
Servs., 848 F. App'x 38, 39 (2d Cir. 2021). However, “[a]
district court has discretion to deny leave for good reason,
including futility, bad faith, undue delay, or undue prejudice
to the opposing party.” McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 200 (2d Cir. 2007) (citing Foman, 371 U.S.
at 182, 83 S.Ct. 227). “To determine whether a proposed
pleading is futile, courts analyze whether it would withstand
a motion to dismiss.” Agerbrink v. Model Serv. LLC, 155
F. Supp. 3d 448, 456 (S.D.N.Y. 2016); see also Carroll v.
Trump, 590 F. Supp. 3d 575, 579 (S.D.N.Y. 2022) (“[I]t is
unexceptional for federal courts to deny leave to amend on
the basis of futility where the proposed amended pleading
would not withstand a motion to dismiss.”). Moreover, “[t]he
opposing party must establish that granting leave to amend
would be futile.” Blagman v. Apple, No. 12 Civ. 5453 (ALC)
(JCF), 2014 WL 2106489, at *5 (S.D.N.Y. May 19, 2014).
Like when considering a motion to dismiss under Rule 12(b)
(6) of the Federal Rules of Civil Procedure, the court must
accept as true all well-pleaded facts and draw all reasonable
inferences in the moving party's favor. Agerbrink, 155 F.
Supp. 3d at 456.
The Court of Appeals has noted that “[w]here a plaintiff seeks
to amend its complaint while a motion to dismiss is pending, a
court ‘may either deny the pending motion to dismiss as moot
or consider the merits of the motion, analyzing the facts as
alleged in the amended pleading.’ ” Env't Sols. Assocs. Grp.,
LLC v. Conopoco, Inc., No. 20 Civ. 10699 (MKV), 2021 WL
2075586, at *1 (S.D.N.Y. May 24, 2021) (quoting Pettaway v.
Nat'l Recovery Sols., LLC, 955 F.3d 299, 303 (2d Cir. 2020)).
This approach “promotes judicial economy by obviating the
need for multiple rounds of briefing addressing complaints
that are legally insufficient.” Pettaway, 955 F.3d at 303.
C. Motions to Dismiss Under Rule 12(b)(6)
*6 To survive a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), a plaintiff must plead sufficient
facts “to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). A court must accept as true all well-pleaded facts
and draw all reasonable inferences in favor of the plaintiff.
Id. at 678, 129 S.Ct. 1937. But the court is not bound to
accept as true legal conclusions that are couched as factual
allegations. Id. “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’
” Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
If there are insufficient factual allegations to raise a right
to relief above the speculative level, the complaint must be
dismissed. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
D. Motion for Judgment on the Pleadings Under Rule
12(c)
The Federal Rules of Civil Procedure provide that “[a]fter the
pleadings are closed—but early enough not to delay trial—
a party may move for judgment on the pleadings.” Fed. R.
Civ. P. 12(c). In this Circuit, “[t]he standard for granting a
Rule 12(c) motion for judgment on the pleadings is identical
to that for granting a Rule 12(b)(6) motion for failure to state
a claim.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th
293, 301 (2d Cir. 2021) (quoting Lynch v. City of N.Y., 952
F.3d 67, 75 (2d Cir. 2020)).
E. Individual and Municipal Liability Under Section
1983
To make a claim under Section 1983 of the Civil Rights Act,
a plaintiff must allege that “(1) the challenged conduct was
attributable at least in part to a person who was acting under
color of state law and (2) the conduct deprived the plaintiff
of a right guaranteed under the Constitution of the United
States.” Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).
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To establish individual liability under Section 1983, “a
plaintiff must show ... the defendant's personal involvement
in the alleged constitutional deprivation.” Kravitz v. Purcell,
87 F.4th 111, 129 (2d Cir. 2023) (quoting Grullon v. City of
New Haven, 720 F.3d 133, 138 (2d Cir. 2013)). To do so, “a
plaintiff must plead and prove ‘that each Government-official
defendant, through the official's own individual actions,
has violated the Constitution.’ ” Id. (quoting Tangreti v.
Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)). “The factors
necessary to establish a § 1983 violation will vary with
the constitutional provision at issue because the elements of
different constitutional violations vary.” Id.
To prevail on a claim against a municipality under Section
1983 based on acts of a public official, a plaintiff is required to
prove: “(1) actions taken under color of law; (2) deprivation of
a constitutional or statutory right; (3) causation; (4) damages;
and (5) that an official policy of the municipality caused the
constitutional injury.” Roe v. City of Waterbury, 542 F.3d
31, 36 (2d Cir. 2008) (citing Monell v. City of N.Y. Dep't
of Soc. Serv's, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978)). “Unless a plaintiff shows that he has
been the victim of a federal law tort committed by persons
for whose conduct the municipality can be responsible, there
is no basis for holding the municipality liable.” Askins v.
Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). Accordingly,
the Court turns first to the question of whether Plaintiff has
plausibly alleged a federal law tort. Id. Only where Plaintiff
has plausibly alleged the commission of a federal tort will
the Court consider whether such action was taken pursuant to
an official policy or custom sufficient to establish municipal
liability pursuant to Monell. Id.
III. Discussion
A. Motion to Strike
*7 Plaintiff moves to strike Defendant NYC's Reply, (NYC
Reply), on the basis that it does not comply with Local Rule
7.1(a)(2)’s requirements. (Pl. Mot. to Strike NYC Reply.)
While Plaintiff is correct that NYC did not format its Reply
in accordance with the Local Rules, on balance, the Court is
unpersuaded that this technicality should result in the Reply's
being stricken. NYC should have followed the proper format
for a Reply, but, given it is short and contains a limited
amount of new substance, the Court accepts it. See Wight, 219
F.3d at 85 (internal citations omitted) (“It is the business of
the district court to determine whether fairness demands that
noncompliance be excused.”).
Additionally, NYC cross-moves to strike the latter two-
thirds of Plaintiff's letter-motion on the basis that it is an
improper sur-reply to NYC's Reply. (NYC Opp'n to Pl. Mot.
to Strike at 2.) The Court agrees. Plaintiff likely filed his
letter-motion to strike as a way to conceal his true intent—
to address substantively arguments in NYC's Reply. Plaintiff
specifically writes, starting in paragraph three, “[t]he Court
should also ignore New York City's arguments.” (Pl. Mot. to
Strike NYC Reply at 1.) Plaintiff then spends approximately
two pages engaging with arguments NYC asserted in its Reply
including, inter alia, the impact of the United States Supreme
Court's recent decision in Gonzalez v. Trevino, 602 U.S. 653,
676, 144 S.Ct. 1663, 219 L.Ed.2d 332 (2024) (per curiam).
(Pl. Mot. to Strike NYC Reply at 1-3; NYC Reply at 2.)
Thus, Plaintiff's letter constitutes an unauthorized sur-reply,
and may be stricken by the Court. See Trombetta, 2020 WL
6365171, at *1; Penzo, 2024 WL 3824072, at *16; Nat. Res.
Def. Council, 884 F. Supp. 2d at 115 n.5.
Accordingly, Plaintiff's motion to strike NYC's Reply is
DENIED, and NYC's motion to strike Plaintiff's letter is
GRANTED. 10 As a result, the Court does not consider
Plaintiff's letter, (Pl. Mot. to Strike NYC Reply), or NYC's
letter, (NYC Opp'n to Pl. Mot. to Strike), any further.
B. Motion for Leave to Amend
The standard for determining futility is whether proposed
amendments would withstand a motion to dismiss. Trump,
590 F. Supp. 3d at 579. Here, Defendants each have either a
motion to dismiss or a motion for judgment on the pleadings
pending, which the Court considers against the proposed
amended pleadings. Pettaway, 955 F.3d at 303. (WC Mot.
to Dismiss; WMC Mot. to Dismiss; NYC Mot. to Dismiss.)
Accordingly, the Court will evaluate each claim, in light of
Plaintiff's proposed amendments, to determine if it states any
valid legal claims that could survive a motion to dismiss.
For the reasons set out below, Plaintiff's amendments in his
SAC do not add sufficient factual or legal allegations to
create a legally cognizable claim. McCarthy, 482 F.3d at 200.
Because Plaintiff's amendments are futile, Plaintiff's motion
seeking leave to amend is DENIED.
C. Malicious Prosecution Under Section 1983
Plaintiff sues Defendants NYC and WC, as well as
officers and detectives from NYC and WC, for malicious
prosecution because Defendants “without probable cause[,]
caused [Plaintiff] to be arrested under a warrant and jailed,”
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“used excessive force,” and “acted with malice” in Plaintiff's
prosecution. (SAC ¶¶ 181-85.)
“To prevail on a § 1983 claim against a state actor 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 N.Y., 612 F.3d 149, 160-61
(2d Cir. 2010). Under New York law, to establish a malicious
prosecution claim, a plaintiff must prove “(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.
at 161 (quoting Murphy v. Lynn, 118 F.3d at 938, 947 (2d
Cir. 1997)). Generally, “the existence of probable cause is a
complete defense to a claim of malicious prosecution ... and
indictment by a grand jury creates a presumption of probable
cause[.]” Id. at 161-62 (quoting Savino v. City of N.Y., 331
F.3d 63, 72 (2d Cir. 2003)) (internal quotations omitted).
However, that presumption may be rebutted by “evidence
that the indictment was procured by fraud, perjury, the
suppression of evidence or other police conduct undertaken
in bad faith.” Id. (internal quotations omitted).
*8 Plaintiff alleges that probable cause does not exist
because “there was absolutely no evidence that tied [him]
to the crime other than the fact that [WC and NYC] had
included him ... because he is a black person from Guinea”
and that he “could not have committed the crimes with which
he was charged.” (SAC ¶¶ 179, 184.) Plaintiff fails to address
the single most important fact—the victim identified Plaintiff
from several double-blind photo arrays and was the only
person to testify to the grand jury. (Dkt. no. 1. Ex. 1. at 6.) The
Court of Appeals has held that “[a]bsent circumstances that
raise doubts as to the victim's veracity, a victim's identification
is typically sufficient to provide probable cause.” McGrier
v. City of N.Y., 849 F. App'x 268, 270 (2d Cir. 2021). The
SAC does not make any allegations regarding the veracity of
the victim's testimony. 11 Additionally, Plaintiff was arrested
pursuant to a warrant after he was indicted by a grand
jury, which gives rise to the presumption that his arrest was
supported by probable cause.
Plaintiff's malicious prosecution claim fails against NYC and
WC because he cannot rebut the presumption of probable
cause. 12 Plaintiff adds paragraphs 147-179 to the SAC in an
attempt to rebut the presumption of probable cause. Plaintiff
alleges that NYC acted in bad faith when it provided Plaintiff's
photo and WC acted in bad faith when it created a suggestive
photo array that was used to identify him. However, “at
most, the allegations permit an inference that [the Yonkers
Detectives] performed subpar police work when conducting
the photo array used to identify [Plaintiff], not an inference
of conduct rising to the level of fraud, perjury, suppression of
evidence, or other bad faith.” Delamota v. City of N.Y., 683
F. App'x 65, 66 (2d Cir. 2017).
Plaintiff also alleges that his prosecution was undertaken in
bad faith for, inter alia, the following reasons: the officers
and detectives knew there was a surveillance video of the
crime and that Plaintiff did not appear in the video, (SAC
¶ 150), and WC chose to bring charges against him despite
this exculpatory evidence and did not disclose the video's
existence to the grand jury, (SAC ¶¶ 154, 95); WC failed
to disclose to the grand jury circumstances surrounding the
photo array, (SAC ¶ 152-53, 171-72, 174, 176-77), including
that Plaintiff was the only Guinean after Defendants told
the victim that the perpetrator was Guinean, (SAC ¶¶ 92,
146); WC failed to disclose to the grand jury many personal
characteristics of Plaintiff that make it unlikely that he
committed the crime, (SAC ¶¶ 49-59, 90, 155-64); and, “the
way the testimony was provided to the grand jury made it
appear as if the victim knew that it was [Plaintiff] who had
robbed him,” (SAC ¶ 148). (Pl. SAC Reply at 2.) These
allegations do not show that any of the Defendants fabricated,
falsified, or suppressed evidence, or otherwise acted in bad
faith regarding Plaintiff's grand jury indictment. See Savino,
331 F.3d at 72; Grier v. City of Mount Vernon, 16 Civ. 5146
(NSR), 2019 WL 1171760, at *4 (S.D.N.Y. Mar 13, 2019).
At most, these allegations show the weaknesses of the case
against Plaintiff.
*9 Regarding the surveillance video, all that Plaintiff
exposes is that the officers and detectives complied with
their duty to turn over evidence to the prosecution, who
then evaluated all the evidence and still chose to bring
charges. See Alba v. City of New York, No. 23 Civ. 8619
(LAK) (BCM), 2024 WL 5359912, at *31 (S.D.N.Y. Aug.
26, 2024) (“[I]f the defendant is a police officer, ‘the scope
of possible liability is necessarily more limited because
police officers satisfy their obligation under Brady when
they turn over exculpatory information to prosecutors, unless
there is some indication that the police have suppressed
evidence.’ ” (quoting Hincapie v. City of N.Y., 434 F. Supp.
3d 61, 76 (S.D.N.Y. 2020))). 13 Crucially, Plaintiff does not
allege that the officers or detectives intentionally withheld
information, made a single misrepresentation, or otherwise
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acted to “corrupt[ ] the truth-seeking function of the trial
process.” Manganiello, 612 F.3d at 162.
With regard to bringing charges and what information was
disclosed to the grand jury, these allegations are applicable to
the prosecutors, as opposed to the officers and detectives. 14
However, the prosecutors are protected by absolute immunity.
Shmueli v. City of N.Y., 424 F.3d 231, 236 (2d Cir. 2005)
(“Further, although absolute immunity is an affirmative
defense whose availability depends on the nature of the
function being performed by the defendant official who
is alleged to have engaged in the challenged conduct ...
the nature of that function is often clear from the face of
the complaint. In that circumstance, the absolute immunity
defense may be resolved as a matter of law on a motion to
dismiss the complaint pursuant to Rule 12(b)(6).” (internal
citations omitted)). “[T]he initiation and pursuit of a criminal
prosecution are the quintessential prosecutorial functions
protected by absolute immunity[.]” Alba, 2024 WL 5359912,
at *16 (quoting Shmueli, 424 F.3d at 237) (internal quotations
omitted). Those functions include “making decisions on
whether to present a case to a grand jury ... as well as
obtaining, reviewing, and evaluating evidence in preparation
for the initiation of charges or for trial.” Id. (quoting Imbler v.
Pachtman, 424 U.S. 409, 431 n.33, 96 S.Ct. 984, 47 L.Ed.2d
128 (1976) (internal quotations omitted)); see also Simon v.
City of N.Y., 727 F.3d 167, 171 (2d Cir. 2013) (absolute
immunity protects a prosecutor when “deciding whether to
bring charges and presenting a case to a grand jury or a
court, along with the tasks generally considered adjunct to
those functions”). Such prosecutorial discretion is absolutely
immune and cannot prove bad faith. See Alba, 2024 WL
5359912, at *15-16.
*10 Additionally, Plaintiff alleges that many personal, and
in Plaintiff's view, exculpatory characteristics were not shared
with the grand jury, including, inter alia, that Plaintiff had
spinal tuberculosis, speaks little English and when he does
has a heavy accent, and the vehicle suspected of being at the
crime scene was not registered to him. (SAC ¶ 49-59, 90,
155-57, 159-64.) It is not clear that the detectives, officers, or
prosecutors were aware of these facts prior to his indictment
and arrest. Even Plaintiff acknowledges that the officers did
not “before seeking an indictment ... [seek] to interview [him]
or obtain his cell phone records.” (SAC ¶ 170.) Therefore,
because this information was unknown to the Defendants,
it could not be shared with the grand jury. Plaintiff further
alleges that WC did not disclose to the grand jury that it “had
no information of [Plaintiff's] being present at the time of the
crime.” (SAC ¶ 158.) This is false. Rosa identified Plaintiff
in a double-blind photo array as being present at the time of
the crime.
Furthermore, Plaintiff's allegation that the victim knew he was
the only Guinean in the photo array also fails to prove bad
faith because he fails to explain (1) how nationality would be
identifiable in a photo array, and (2) how informing the victim
of Plaintiff's nationality, an invisible attribute, is a bad faith
act. (See SAC ¶¶ 92, 94, 144, 146.) Without more, Plaintiff's
conclusory statements do not prove bad faith. Savino, 331
F.3d at 73 (finding that a plaintiff cannot rebut a presumption
of probable cause “with mere ‘conjecture’ and ‘surmise’ that
his indictment was procured as a result of conduct undertaken
by the defendants in bad faith.” (quoting Bryant v. Maffucci,
923 F.2d 979, 982 (2d Cir. 1991))). Consequently, Plaintiff's
SAC fails to demonstrate that his indictment was “procured
by fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith.” Grier, 2019 WL 1171760,
at *4.
All of Plaintiff's allegations unquestionably show weaknesses
in the case brought against him but do not allege that
Defendants intentionally withheld information or acted to
corrupt the truth-seeking function of the trial process.
Because Plaintiff has failed to allege facts sufficient to rebut
the presumption of probable cause, dismissal of Plaintiff's
malicious prosecution claim is warranted.
D. Defamation Under Section 1983
Plaintiff sues Defendants NYC and WC for defamation. (SAC
¶¶ 185-192.) Plaintiff claims that the NYPD defamed him
by providing pictures of him to WC and WC caused those
pictures to be placed in a line-up and provided the pictures
to third parties who made a mistaken identification. (Id.)
Thus, Defendants branded Plaintiff as a criminal leading to
his loss of employment opportunities, housing, and family
relationships. (See id.; Pl. Opp'n Mem. to NYC at 21-22.)
As to the claim against WC, neither WC nor Plaintiff
addresses the defamation claim in their papers though they
were on notice of their failure to do so in the Court's
March 19, 2025 Order. (See WC Mem.; Pl. Opp'n Mem.
to WC; WC Reply; Mar. 19 Order.) Because WC moves to
dismiss the Complaint in its entirety, (WC Mem. at 3), and
because Plaintiff does not defend this theory, the Court deems
the defamation claim against WC waived. Felix v. City of
N.Y., 344 F. Supp. 3d 644, 655 (S.D.N.Y. 2018) (“[B]ecause
Defendant clearly styles its motion as a motion to dismiss
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all municipal liability claims ... and because Plaintiff does
not defend this theory, the Court deems it waived.” (internal
citation omitted)).
As to the claim against NYC, to make a federal claim
for defamation a Plaintiff must demonstrate “a stigmatizing
statement plus a deprivation of a tangible interest.” Burgos
Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (quoting Algarin
v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)). To
establish a stigma plus claim, a plaintiff must show “(1) the
utterance of a statement sufficiently derogatory to injure his
or her reputation, that is capable of being proved false, and
that he or she claims is false, and (2) a material state-imposed
burden or state-imposed alteration of the plaintiff's status
or rights.” Id. (quoting Sadallah v. City of Utica, 383 F.3d
34, 38 (2d Cir. 2004)) (internal quotations omitted). Here,
Plaintiff does not clearly articulate what the false statement
or false paperwork was. Even if Plaintiff argued that the
photograph was a false statement because it was “designed
to make him look like a criminal instead of ... his true-
clean cut appearance,” Plaintiff confirms the photo is of him.
(SAC ¶ 167.) Additionally, Plaintiff merely asserts that “[t]he
publication has cause[d] [him] special harm [that] constitutes
defamation per se.” (SAC ¶ 191.) Without a false statement,
however, his claim fails as a matter of law. See Burgos Vega,
596 F.3d at 81. Accordingly, dismissal of his defamation
claim against NYC is warranted.
E. False Imprisonment/False Arrest Under Section
1983
*11 Plaintiff sues Defendants NYC, WC, and the arresting
officers for false arrest and false imprisonment. (See SAC
¶¶ 193-198.) Plaintiff specifically implicates NYC for
“encourage[ing] [his] arrest by providing his picture to the
City of New York in the February 24, 2018, email.” 15 (See
SAC ¶ 195.)
Plaintiff claims that his arrest lacked probable cause for
the same reasons articulated in his malicious prosecution
claim. (See supra Section III.C.) Plaintiff fails to rebut
the presumption of probable cause by demonstrating
that his indictment was “procured by fraud, perjury, the
suppression of evidence or other police conduct undertaken
in bad faith.” Grier, 2019 WL 1171760, at *4; Manzi v.
Goldfine, No. 23 Civ. 05176 (PMH), 2024 WL 2943876,
at *5 (S.D.N.Y. June 10, 2024) (dismissing a false arrest
claim where Plaintiff “failed to allege that Defendants
‘knowingly and intentionally’ made any false statements
or omissions that would be relevant to the probable cause
determination.” (quoting Gleis v. Buehler, 374 F. App'x 218,
220 (2d Cir. 2010))). “The existence of probable cause to
arrest constitutes justification and is a complete defense to
an action for false arrest[.]” Jenkins v. City of N.Y., 478
F.3d 76, 84 (2d Cir. 2007) (internal quotations omitted).
The facts Plaintiff recites regarding his arrest fail to allege
any official misconduct whatsoever and merely underscore
weaknesses in the prosecution's case against him. Without
more, Plaintiff's claim of false arrest and imprisonment
remains “mere conjecture.” Savino, 331 F.3d at 73. For the
same reasons set out above, because Plaintiff has failed to
allege facts that rebut the presumption of probable cause
arising from his grand jury indictment, dismissal of his false
arrest and false imprisonment claims is warranted. (See supra
Section III.C.)
F. National Origin Discrimination Under Section 1983
Plaintiff claims he was identified as a robbery suspect for
the sole reason that he is Guinean. (See SAC ¶¶ 200, 202.)
He further alleges that if he “had a different name, like John
Smith instead of Ibrahima Diallo, his picture would not have
been included” in the photo array. (See SAC ¶ 201.)
The Court construes his claim of national origin
discrimination as a claim for selective law enforcement.
Under Section 1983, these claims are analyzed under “the
Fourteenth Amendment's Equal Protection Clause to be free
from impermissible racial or national origin discrimination.”
Barua v. City of N.Y., No. 14 Civ. 584 (NRB), 2016 WL
7494875, at *11 (S.D.N.Y. Dec. 29, 2016).
To establish a violation of equal protection based on
selective enforcement, [Plaintiff] must show: ‘(1) the
person, compared with others similarly situated, was
selectively treated; and (2) that such selective treatment
was 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.’
Case v. City of N.Y., 233 F. Supp. 3d 372, 394 (S.D.N.Y. 2017)
(quoting Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d
12, 16 (2d Cir. 1999)); see also Harlen Assocs. v. Inc. Vill. of
Mineola, 273 F.3d 494, 499 (2d Cir. 2001). The law requires
a comparison with similarly situated individuals because
“courts grant special deference to the executive branch in
the performance of the ‘core’ executive function of deciding
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whether to prosecute.” Pyke v. Cuomo, 258 F.3d 107, 109 (2d
Cir. 2001). 16
*12 Here, Plaintiff's claim fails because he does not
demonstrate similar treatment based on national origin. His
assertions that an individual with the name “John Smith”
would have been treated differently and that “New York
City has a history of discriminating against [Plaintiff] and
immigrants” are conclusory and insufficient to compare
Plaintiff's case to any other individual. (See SAC ¶¶ 2, 201.)
The similarly situated standard requires some context for
comparing Plaintiff's claim to other individuals who were not
prosecuted. The only context Plaintiff provides is that NYC
only provided images of Guineans and WC prepared a photo
array where Plaintiff was the only Guinean. This limited
information is insufficient to allege selective enforcement.
See Crespo v. Rivera, No. 16 Civ. 708 (PGG), 2018 WL
4500868, at *16 (S.D.N.Y. Sept. 19, 2018) (dismissing
selective prosecution claim because plaintiff had not “pled
any facts concerning similarly situated comparators”); Case,
233 F. Supp. 3d at 395 (dismissing selective prosecution
claim because “Plaintiffs fail to cite even one comparative
case where Defendants applied a different policy to
[similarly situated individuals]”). Additionally, Plaintiff fails
to acknowledge that he was arrested and prosecuted only
after he was identified by the victim – which completely
undercuts his selective enforcement claim. Accordingly,
Plaintiff's claim must be dismissed.
G. Free Exercise Clause of the First Amendment
Plaintiff claims that WC violated his First Amendment right to
the free exercise of religion by subjecting him to a strip search
and by denying him a prayer mat. (See SAC ¶¶ 213-225.)
“The Free Exercise Clause of the First Amendment states,
‘Congress shall make no law ... prohibiting the free exercise’
of religion.” Pena v. Morton, No. 19 Civ. 07336 (NSR),
2022 WL 657045, at *3 (S.D.N.Y Mar. 4, 2022) (quoting
U.S. CONST. amend. 1). Specifically, “[p]rison inmates are
protected by the clause, though not necessarily to the same
extent as others.” Id.
To assess a free exercise claim, a
court must determine (1) whether
the practice asserted is religious in
the person's scheme of beliefs, and
whether the belief is sincerely held;
(2) whether the challenged practice
of the prison officials infringes upon
the religious belief; and (3) whether
the challenged practice of the prison
officials further legitimate penological
objectives.
Kravitz, 87 F.4th at 128 (quoting Farid v. Smith, 850 F.2d 917,
926 (2d Cir. 1988)) (alterations omitted). “Generally, strip
searches have been upheld as a reasonable security measure
within a correctional facility even in the absence of probable
cause as long as they are related to a legitimate penological
goal.” Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318,
323 (S.D.N.Y. 2006) aff'd, 461 F. App'x 18 (2d Cir. 2012).
“[C]ourts in this District have consistently rejected claims that
standard strip searches violate the First Amendment rights of
Muslim inmates whose religion might forbid them from being
seen naked by other individuals.” Pizarro v. Bd. of Corr., 16
Civ. 2418 (RJS), 2018 WL 3462512, at *5 (S.D.N.Y. July 17,
2018).
Plaintiff's strip search claim fails because he does not allege
any facts which suggest Defendant's search policy lacked
a legitimate penological interest. Here, Plaintiff alleges that
he was strip searched upon being booked, pursuant to Ҥ
112.03 of the Westchester County Department of Public
Safety Manual.” (See SAC ¶ 219.) However, Plaintiff's claim
merely identifies the practice and asserts that he was forced to
comply against his religious morals. (See SAC ¶¶ 214-221.)
Without more, Plaintiff does not allege that the search served
no legitimate penological interest. Accordingly, his claim
regarding the strip search is dismissed as a matter of law.
See Cook v. City of N.Y., 19 Civ. 3858 (PKC) (JO), 2019
WL 3388909, at *2 (E.D.N.Y. July 26, 2019) (dismissing an
unconstitutional strip search claim in part because plaintiff
failed “to identify additional circumstances surrounding the
strip search at issue that indicate that the search was unrelated
to any legitimate penological interest”).
The Court next turns to Plaintiff's claim relating to denying
him a prayer mat. While Plaintiff alleges a constitutional
violation, he does not adequately allege WC's municipal
liability.
*13 Plaintiff alleges that WC's refusal to respond to his
requests for a prayer mat “substantially burden[ed] his
religious belief” by denying him the right to a practice he finds
“vital.” (See Pl. Opp'n Mem. to WC at 13; SAC ¶¶ 222-225.)
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Because Plaintiff's belief is that he must pray five times a day,
he asserts he was denied the right to pray forty different times
over the course of his eight days' imprisonment. (See SAC
¶ 224.) Nowhere in WC's papers does it assert a legitimate
penological interest for denying Plaintiff a prayer mat. (See
WC Mem. at 12-13.)
Moreover, WC is incorrect that “[t]he denial of an inmate's
request for a prayer mat does not rise to the level of violation
of the First Amendment's Free Exercise Clause.” 17 (Id. at
13.) Here, at the motion to dismiss stage, Plaintiff's assertions
concerning his religion, sincerely held beliefs about prayer,
and the burden he incurred are sufficient to make a free
exercise claim. See Kravitz, 87 F.4th at 125 (“We now join
those circuits that have held that an inmate does not need to
establish a substantial burden in order to prevail on a free
exercise claim under § 1983.”).
However, Plaintiff's claim fails against WC because he does
not sufficiently allege that the denial of his prayer mat was
because of an “official policy.” Staboleski v. City of N.Y., 19
Civ. 8834 (LJL), 2021 WL 796616, at *4 (S.D.N.Y. Mar. 1,
2021) (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d
Cir. 2008)).
A plaintiff may satisfy the ‘policy or custom’ requirement
by alleging one of the following: ‘(1) a formal policy
officially endorsed by the municipality; (2) actions taken
by government officials responsible for establishing the
municipal policies that caused the particular deprivation in
question; (3) a practice so consistent and widespread that,
although not expressly authorized, constitutes a custom
or usage of which a supervising policy-maker must have
been aware; or (4) a failure by policymakers to provide
adequate training or supervision to subordinates to such
an extent that it amounts to deliberate indifference to the
rights of those who come into contact with the municipal
employees.’
Id. (quoting Johnson v. Paul, 17 Civ. 3654 (KMK), 2018 WL
2305657, at *3 (S.D.N.Y. May 21, 2018)). Plaintiff alleges
that “under Westchester County Department of Correction[s']
policy and practice, the jail did not make accommodation[s]
for Mr. Diallo” and therefore “denied Mr. Diallo the right
to pray 40 times.” (See SAC ¶ 107.) The assertion that
such policy would be the County's “officially endorsed”
“formal policy,” is nothing more than conclusory conjecture.
Staboleski, 2021 WL 796616, at *4. Other than conclusory
conjecture, Plaintiff fails to allege that his inability to access
a prayer mat meets any of the above criteria. (See Pl. Opp'n
Mem. to WC at 12-13; SAC ¶¶ 107, 222-225.) Without that
connection, the Court has no basis on which to assign liability
to WC. See Roe, 542 F.3d at 36. Therefore, dismissal of
Plaintiff's free exercise claim is warranted.
H. Injunctive Relief Under Section 1983
*14 Plaintiff seeks injunctive relief pursuant to Section
1983 against Defendants NYC and WC “to remove his
profile from their respective criminal databases.” (SAC ¶
240.) In his Opposition, Plaintiff fails to address Defendants'
arguments for why such relief should be denied, stating
only that “Plaintiff will have sought injunctive relief when
he moves for Injunctive Relief.” (See Pl. Opp'n Mem. to
NYC at 22.) The Court construes this as an indication that
Plaintiff has abandoned his prayer for injunctive relief. Black
Lives Matter v. Town of Clarkstown, 354 F. Supp. 3d 313,
328 (S.D.N.Y. 2018) (“The failure to oppose a motion to
dismiss a claim is deemed abandonment of the claim.”). This
construction is all the more appropriate as Plaintiff already
had an identical claim dismissed as abandoned for using the
exact same sentence to oppose Defendants' earlier motion to
dismiss. (See Mar. 19 Order at 14.) Where a party reiterates
a response already deemed to constitute abandonment, that
response cannot maintain the claim. Accordingly, dismissal
of Plaintiff's claim for injunctive relief is warranted.
I. State Law Claims
The Court may decline to exercise supplemental jurisdiction
over a claim where all claims over which it had original
jurisdiction have been dismissed. See 28 U.S.C. § 1367(c)(3).
While district courts have discretion to exercise supplemental
jurisdiction over remaining state law claims, when “all
federal-law claims are eliminated before trial, the balance
of factors ... will point toward declining to exercise
jurisdiction[.]” Catzin v. Thank You & Good Luck Corp., 899
F.3d 77, 81 (2d Cir. 2018) (quoting Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d
720 (1988)); see also Cummings v. City of N.Y., 19 Civ. 7723
(CM) (OTW), 2021 WL 1664421, at *2 (S.D.N.Y. Apr. 28,
2021) (“The Second Circuit takes a particularly strong view
that district courts should decline to exercise supplemental
jurisdiction in the absence of a ‘clearly articulated federal
interest.’ ” (quoting Kolari v. N.Y. Presbyterian Hosp., 455
F.3d 118, 123 (2d. Cir. 2006))). Accordingly, Plaintiff's
remaining state law claims are dismissed without prejudice so
that they may be renewed in the proper state court.
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IV. Conclusion
For the foregoing reasons, Plaintiff's motion to strike, (Pl.
Mot. to Strike NYC Reply), is DENIED, and Defendant
NYC's motion to strike Plaintiff's letter, (NYC Opp'n to
Pl. Mot. to Strike), is GRANTED. Plaintiff's motion for
leave to amend, (Pl. SAC Mot.), is DENIED. Defendants
WC and NYC's motions to dismiss Plaintiff's federal
claims, (WC Mot. to Dismiss; NYC Mot. to Dismiss),
are GRANTED. Further, the Court declines to exercise
supplemental jurisdiction over Plaintiff's remaining state law
claims and dismisses them without prejudice to renewal in a
state court of competent jurisdiction.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 522514
Footnotes
1 As set forth in the Court's Order on May 17, 2024, (dkt. no. 80), the Court construes WMC's motion to dismiss
as a motion for judgment on the pleadings. Accordingly, WMC Mot. to Dismiss, Bave Decl., and WMC Mem.
are WMC's relevant papers and, according to Plaintiff's letter filed on May 31, 2024, (see dkt. no. 84), Pl.
Mem. in Opp'n to WMC Mot., (“Pl. Opp'n Mem. to WMC”), dated June 12, 2023 [dkt. no. 49], is Plaintiff's
relevant submission.
2 See Westchester County's (“WC”) Mot. to Dismiss, dated May 2, 2024 [dkt. no. 69]; Decl. of Loren Zeitler in
Supp. of WC Mot. to Dismiss (“Zeitler Decl.”), dated May 2, 2024 [dkt. no. 70]; WC Mem. of Law in Supp.
of Mot. to Dismiss (“WC Mem.”), dated May 2, 2024 [dkt. no. 71]; Pl. Mem. in Opp'n to WC Mot. (“Pl. Opp'n
Mem. to WC.”), dated May 17, 2024 [dkt. no. 81]; WC's Reply (“WC Reply”), dated June 3, 2024 [dkt. no. 85];
Westchester Medical Center's (“WMC”) Mot. to Dismiss, dated May 7, 2024 [dkt. no. 72]; Decl. of William
Bave in Supp. of WMC Mot. to Dismiss (“Bave Decl.”), dated May 7, 2024 [dkt. no. 73]; WMC Mem. of Law in
Supp. of Mot. to Dismiss (“WMC Mem.”), dated May 7, 2024 [dkt. no. 74]; NYC Mot. to Dismiss, dated June
10, 2024 [dkt. no. 86]; NYC Mem. of Law in Supp. of Mot. to Dismiss (“NYC Mem.”), dated May 10, 2024
[dkt. no. 87]; Pl. Mem. in Opp'n to NYC Mot. (“Pl. Opp'n Mem. to NYC”), dated June 28, 2024 [dkt. no. 90];
NYC's Reply (“NYC Reply”), dated July 5, 2024 [dkt. no. 91].
3 See Pl. Letter Mot. to Strike NYC's Reply (“Pl. Mot. to Strike NYC Reply”), dated July 9, 2024 [dkt. no. 92].
4 See NYC's Letter in Opp'n to Pl. Mot. to Strike (“NYC Opp'n to Pl. Mot. to Strike”), dated July 22, 2024 [dkt.
no. 95].
5 See Letter Request for Leave to File Second Amended Complaint (“Pl. SAC Mot.”), dated Aug. 20, 2024 [dkt.
no. 96]; Pl. Reply (“Pl. SAC Reply”), dated Aug. 26, 2024 [dkt. no. 98].
6 See Defs.' Joint Letter in Opp'n (“Joint SAC Opp'n”), dated Aug. 20, 2024 [dkt. no. 97].
7 Citations for this exhibit only are to the ECF page number instead of the original page number on the
document.
8 Plaintiff alleges in the Complaint that NYC provided his photo to WC. (Compl. ¶ 80.) WC argues in its Reply
that it was the detectives from the City of Yonkers, not WC, who prepared the photo array; however, this
point is academic as Yonkers is within WC. (WC Reply at 3-4.)
9 See Joint SDNY and EDNY Local Rules, Committee Note to Rule 7.1, effective July 1, 2024, available at
https://nysd.uscourts.gov/sites/default/files/local_rules/2024-07-01%20Joint%20Local%20Rules.pdf.
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10 Technically, both Plaintiff and NYC should have submitted letters requesting a pre-motion conference seeking
leave to file motions to strike. J. Preska Individual Practices Rule 2(A). Instead, both parties skipped the
Court's required step and filed letter-motions.
11 The victim's statements about being able to identify the perpetrators right after the incident as compared to the
victim's statements during the identification are slightly in conflict. (See dkt. no. 1. Ex. 1 at 5-6.) However, the
conflict is not sufficient to raise doubts that outweigh the probable cause established after the victim's grand
jury testimony. See Norwood v. Mason, 524 F. App'x 762, 765 (2d Cir. 2013) (“New York courts routinely hold
that a victim's photo identification of a person provides the police with probable cause to arrest that person,
even where the identification may not be 100% reliable.”).
12 Plaintiff's malicious prosecution also fails against Defendant NYC because no one from the NYPD initiated
the prosecution against Plaintiff. Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000) (“A person
who tells law enforcement authorities that he or she thinks that a crime has been committed and does no
more, does not thereby put him- or herself at risk of liability for malicious prosecution should the arrest or
prosecution later be abandoned or result in an acquittal.”). The NYPD's only role related to this case was
providing “several images of suspects from the NYPD investigation ... to Yonkers Police” to share investigative
materials for a similar pattern of robberies with the neighboring police agency. (Dkt. no. 1 Ex. 1 at 6.)
13 While Plaintiff does not allege a Brady violation in his SAC, the issue of evidence suppression gets to
the heart of both bad faith malicious prosecution and Brady violation claims. Thus, Brady standards are a
relevant benchmark here. See Newson v. City of N.Y., No. 16 Civ. 6773 (ILG) (JO), 2019 WL 3997466, at
*4 (E.D.N.Y. Aug. 22, 2019) (“[T]he question of whether a ‘Brady’ claim may be brought by an acquitted
plaintiff is academic. In cases where a plaintiff has been deprived of his liberty prior to trial due to the State's
suppression of exculpatory evidence, courts have recognized that he may bring a [malicious prosecution
claim pursuant to § 1983].”).
14 The Court does not consider the officers or detectives' potential for qualified immunity because the Court
need not proceed in the analysis. Sabir v. Williams, 52 F.4th 51, 64 (2d Cir. 2022) (stating that “[a]lthough it is
possible for a qualified immunity defense to succeed on a motion to dismiss, ... “[it] is usually not successful”);
Liberian Cmty. Ass'n of Conn. v. Lamont, 970 F.3d 174, 186 (2d Cir. 2020); Chamberlain Est. of Chamberlain
v. City of White Plains, 960 F.3d 100, 110 (2d Cir. 2020) (“[A]s a general rule, the defense of qualified immunity
cannot support the grant of a [Rule] 12(b)(6) motion.”); Field Day, LLC v. Cnty of Suffolk, 463 F.3d 167, 191-92
(2d Cir. 2006); McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (“Nevertheless, we see no reason why
even a traditional qualified immunity defense may not be asserted on a Rule 12(b)(6) motion as long as the
defense is based on facts appearing on the face of the complaint.”).
15 This appears to be a typographical error because NYC provided Plaintiff's photo to WC, not itself. The Court
overlooks this drafting mistake and interprets the allegation in line with the complaint's other claims.
16 The parties disagree about whether the Supreme Court's holding in Gonzalez v. Trevino, which in Plaintiff's
view relaxes the standard for comparing Plaintiff with similarly situated individuals, applies here. (Pl. Opp'n
Mem. to NYC at 6-7; NYC Reply at 2.) In Gonzalez, the plaintiff alleged a claim of retaliatory arrest for speech
protected by the First Amendment and provided evidence that no one has ever been arrested for engaging in
similar conduct, which the Supreme Court found was sufficient “comparator evidence.” 602 U.S. at 656-58,
144 S.Ct. 1663. Gonzalez has limited relevance to the present case. Here, Plaintiff alleges a claim of selective
enforcement based on national origin and not only is Plaintiff's “comparator evidence” vastly different from
that in Gonzalez and conclusory, but also Plaintiff was only arrested and prosecuted after he was identified
in a double-blind photo array by the victim, a far cry from the situation in Gonzalez.
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17 The cases WC cites are inapplicable to Plaintiff's claim because he is Muslim and his beliefs about prayer are
sincerely held. See Adekoya v. Herron, 10 Civ. 6646 (MAT), 2013 WL 6092507, at *5-8 (W.D.N.Y. Nov. 19,
2013) (denying a free exercise claim where Plaintiff who practiced African Spiritism did not allege substantial
burden or sincerely held belief when denied a prayer mat); La Pointe v. Walker, 06-952 (DGW), 2010 WL
3724274, at *3–4, 2010 U.S. Dist. LEXIS 96776, at *10 (S.D. Ill. Sept. 15, 2010) (same where Plaintiff was
Christian).
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Doe 1 v. County of Rockland, Slip Copy (2025)
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2025 WL 945873
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jane DOE 1, et al., Plaintiffs,
v.
COUNTY OF ROCKLAND, et al., Defendants.
No.
21
-
CV
-
6751
(KMK)
|
Signed March 28, 2025
Attorneys and Law Firms
Steven A. Metcalf II, Esq., Metcalf & Metcalf, P.C., New
York, NY, Counsel for Plaintiffs.
Matthew R. Hughes, Esq., Robert B. Weissman, Esq.,
Saretsky Katz Dranoff Weissman & Maynard, LLP, Elmsford,
NY, Counsel for Defendants County of Rockland, Rockland
County Correctional Center, and Rockland County Sheriff's
Office – Corrections Division.
OPINION & ORDER
KENNETH M. KARAS, United States District Judge:
*1 Jane Doe 1, Jane Doe 2, Jane Doe 3, Jane Doe
4, Jane Doe 5, and Jane Doe 6 (together, “Plaintiffs”),
formerly incarcerated at the Rockland County Jail (the
“Jail”), bring the instant Action pursuant to 42 U.S.C. §§
1983, 1985, and 1988 and state law against the County
of Rockland, Rockland County Correctional Center, and
Rockland County Sheriff's Office – Corrections Division
(together, the “County”) and its employees Corrections
Officer Christopher Taggart (“Taggart”), Corrections Officer
John Kezek (“Kezek”), Sergent Cooper, Corrections
Officer Gomez, Corrections Officer Mantello, Corrections
Officer Ranolfo Ventillo, Corrections Officer Charlie
Mae, Corrections Officer Danny, Corrections Officer
Kyle Farrison, Corrections Officer Joseph Helchowski,
Corrections Officer Starky, and John Does/Jane Does 1–6
(collectively, the “Individual Defendants”). 1 (See Second
Am. Compl. ¶¶ 38–44 (“SAC”) (Dkt. No. 74).) 2
Before the Court is the County's Motion to Dismiss the
Second Amended Complaint (“SAC”), insofar as it pertains
to the County, pursuant to Federal Rule of Civil Procedure
12(b)(6) (the “Motion”). (See Not. of Mot. to Dismiss (Dkt.
No. 91).) For the reasons stated below, the Motion is granted
in part and denied in part.
I. Background
A. Materials Considered
Plaintiffs have attached multiple exhibits to the SAC, (see
SAC, Ex. Nos. 1–5 (Dkt. Nos. 74-1 through 74-5)), while the
County has submitted two declarations and accompanying
exhibits in support of their arguments, (see generally Decl.
of Robert B. Weissman, Esq. in Supp. of Mot. (“Weissman
Decl.”) (Dkt. No. 92); Reply Affirm. of Robert B. Weissman,
Esq. (“Weissman Reply Affirm.”) (Dkt. No. 103)).
Generally, “[w]hen considering a motion to dismiss, the
Court's review is confined to the pleadings themselves,”
because “[t]o go beyond the allegations in the Complaint
would convert the Rule 12(b)(6) motion into one for summary
judgment pursuant to [Rule] 56.” Thomas v. Westchester Cnty.
Health Care Corp., 232 F. Supp. 2d 273, 275 (S.D.N.Y.
2002). “Nevertheless, the Court's consideration of documents
attached to, or incorporated by reference in the Complaint,
and matters of which judicial notice may be taken, would
not convert the motion to dismiss into one for summary
judgment.” Id.; see also Bellin v. Zucker, 6 F.4th 463, 473
(2d Cir. 2021) (explaining that “when ruling on Rule 12(b)
(6) motions to dismiss,” courts may “consider the complaint
in its entirety ..., documents incorporated into the complaint
by reference, and matters of which a court may take judicial
notice” (quotation marks omitted)); Hu v. City of New York,
927 F.3d 81, 88 (2d Cir. 2019) (“In deciding a Rule 12(b)
(6) motion, the court may consider ‘only the facts alleged in
the pleadings, documents attached as exhibits or incorporated
by reference in the pleadings, and matters of which judicial
notice may be taken.’ ” (alteration omitted) (quoting Samuels
v. Air Transp. Loc. 504, 992 F.2d 12, 15 (2d Cir. 1993))).
*2 Plaintiffs submitted the following documents as
attachments to the SAC: (1) a September 3, 2021, letter
from Amy L. Soloman, Acting Assistant Attorney General,
to state governors, discussing state requirements to certify
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and assure compliance with the Prison Rape Elimination Act
of 2003 (“PREA”), (SAC Ex. A (Dkt. No. 74-5)); (2) a
list of PREA Certification and Assurance submissions from
August 20, 2020, through August 19, 2021, (SAC Ex. B
(Dkt. No. 74-1)); (3) a January 2023 special report from the
U.S. Department of Justice, Bureau of Justice Statistics, titled
“Substantiated Incidents of Sexual Victimization Reported by
Adult Correctional Authorities, 2016–2018,” (SAC Ex. C.
(Dkt. No. 74-2)); (4) a September 11, 2020, news article from
lohud.com titled “Rockland corrections officer John Kezek
faces 78 additional charges for jail misconduct,” (SAC Ex.
D (Dkt. No. 74-3)); and (5) notices of claims filed in July
2023 on behalf of Jane Does One through Six against the
Defendants in this Action, (SAC Ex. E (Dkt. No. 74-4)).
The Court may take judicial notice of these sources, as
the County does not dispute their authenticity “and [they
are] capable of accurate and ready determination.” O'Neill
v. Standard Homeopathic Co., 346 F. Supp. 3d 511, 519 n.2
(S.D.N.Y. 2018); In re Chantix (Varenicline) Mktg., Sales
Pracs. & Prods. Liab. Litig. (No. II), 735 F. Supp. 3d 352,
369 (S.D.N.Y. 2024) (taking notice of facts “contained in
the FDA's announcements ..., as set forth in the Agency's
guidance documents and related statements on its official
website”); Wells Fargo Bank, N.A. v. Wrights Mill Holdings,
LLC, 127 F. Supp. 3d 156, 167 (S.D.N.Y. 2015) (observing
that judicial notice may be taken of an official government
website, as “the website's authenticity is not in dispute and
‘it is capable of accurate and ready determination’ ” (quoting
Doron Precision Sys., Inc. v. FAAC, Inc., 423 F. Supp. 2d 173,
179 n.8 (S.D.N.Y. 2006))). The Court notes that even though it
takes judicial notice of these documents, “their purposes at the
motion-to-dismiss stage are limited,” as they can only be used
to “determin[e] what the documents state,” not to “prove the
truth of their contents.” Hesse v. Godiva Chocolatier, Inc., 463
F. Supp. 3d 453, 463 (S.D.N.Y. 2020) (citing Roth v. Jennings,
489 F.3d 499, 509 (2d Cir. 2007)).
The County, for its part, submitted the following documents
in support of its Motion: (1) the Jail's Code of Conduct,
regarding the rules and regulations for uninformed staff,
first issued January 1, 2001, and amended October 7, 2014,
(Weissman Decl. Ex. B (Dkt. No. 92-2)); (2) the Jail's
Code of Conduct as amended August 30, 2017, (Weissman
Decl. Ex. C (Dkt. No. 92-3)); (3) the Jail's PREA policy,
rules, and regulations enacted from 2002 to January 2012,
(Weissman Decl. Ex. D (Dkt. No. 92-4)); (4) the Jail's
January 15, 2015, PREA policy, rules, and regulations,
(Weissman Decl. Ex. E (Dkt. No. 92-5)); (5) the Jail's Inmate
Rules and Regulations (Weissman Decl. Ex. F (Dkt. No.
92-6)); (6) Plaintiffs’ acknowledgment of receipt of rules
and regulations, (Weissman Decl. Ex. G (Dkt. No. 92-7));
(7) an April 26, 2016, Felony Complaint regarding Ranolfo
Ventillo, (Weissman Decl. Ex. H (Dkt. No. 92-8)); (8) an
information filed on October 13, 2016, in connection with
the County's prosecution of Ventillo, (Weissman Decl. Ex. I
(Dkt. No. 92-9)); (9) an arrest report from June 12, 2020, in
connection with the state prosecution of Christopher Taggart,
(Weissman Decl. Ex. J (Dkt. No. 92-10)); (10) a July 31,
2020, grand jury indictment of Taggart in connection with the
same prosecution, (Weissman Decl. Ex. K (Dkt. No. 92-11));
(11) an April 8, 2021, transcript of Taggart's guilty plea
and allocution, (Weissman Decl. Ex. O (Dkt. No. 92-15)); 3
(12) a July 31, 2020, grand jury indictment of John Kezek,
(Weissman Decl. Ex. M (Dkt. No. 92-13)); (13) an arrest
report from August 5, 2020, in connection with the state's
prosecution of Kezek, (Weissman Decl. Ex. N (Dkt. No.
92-14)); (14) a December 22, 2021, transcript of Kezek's
guilty plea and allocution, (Weissman Decl. Ex. L (Dkt. No.
92-12)); and (15) an August 26, 2020, complaint filed in
Santiago, et al. v. United States of America, No. 20-CV-6887
(S.D.N.Y. 2020), (Weissman Reply Decl. Ex. A (Dkt. No.
103-1)).
*3 As for the first six documents, the County argues
that these documents are regulations “promulgated by an
administrative agency” and thus, are “a proper subject for
judicial notice.” (County's Mem. of Law in Supp. of Mot. 16
n.3 (“County's Mem.”) (Dkt. No. 93) (quoting Op. & Order
Granting Mot. to Dismiss Amend. Compl. 4 (“Op. & Order”)
(Dkt. No. 71)).) Plaintiffs, however, dispute the relevance and
authenticity of these exhibits, because, inter alia, “Plaintiffs
have been unable to explore whether such policies were even
provided to each Defendant,” “whether such policies were
trained and enforced at Defendants[’] facility,” the policies
“do[ ] not contain any indication or signature line that such
policy was provided to any [D]efendant, by any [D]efendant
or staff member,” and the policies they “do[ ] not contain the
date Defendants were provided such policy, or trained on such
policy.” (Pls’ Opp'n to Mot. to Dismiss 29–30 (“Pls’ Opp'n”)
(Dkt. No. 99).)
Although a Court may take judicial notice of prison
regulations when undisputed, see Spurgeon v. Wettenstein,
No. 13-CV-8117, 2015 WL 1408874, at *2 n.1 (S.D.N.Y.
Mar. 26, 2015) (taking notice of prison regulations); Gray
v. Erfe, No. 13-CV-39, 2015 WL 3581230, at *2 n.1 (D.
Conn. June 5, 2015) (same); Lurry v. Ford, No. 13-CV-1157,
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2014 WL 859270, at *2 (D. Conn. Mar. 5, 2014) (“The
court also may consider matters of which judicial notice may
be taken, such as ... prison directives.” (citing Christman
v. Skinner, 468 F.2d 723, 726 (2d Cir. 1972))), a court
“cannot consider extrinsic evidence if there is a dispute
‘regarding the authenticity or accuracy of the document’ or
‘the relevance of the document’ to the dispute,” Hunter v.
Kaufman Enters., Inc., No. 09-CV-5540, 2011 WL 3555809,
at *4 n.4 (E.D.N.Y. Aug. 8, 2011) (quoting Faulkner v. Beer,
463 F.3d 130, 134 (2d Cir. 2006)); see, e.g., Giraud v. Bd. of
Educ., Newburgh Enlarged City Sch. Dist., No. 12-CV-1842,
2013 WL 3776242, at *5 (S.D.N.Y. July 17, 2013) (“[E]ven
if a document is ‘integral’ to the complaint, a court may only
consider it if there is no dispute regarding its authenticity,
accuracy[,] or relevance.”) (citing DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)). Moreover, the Court
notes that although the SAC discusses the Jail's purported
lack of training, lack of adequate polices or practices to
comply with its PREA obligations, and lack of supervision,
(see, e.g., SAC ¶¶ 228, 291, 322–34), it “does not point to
any express written policy, let alone any specific document
in which the policies were contained,” Hunter, 2011 WL
3555809, at *4 n.4. Accordingly, the Court will not take notice
of Defendants’ Exhibits A through G.
However, although Plaintiffs lodge a blanket objection to “all
of Defendant[s’] Exhibits,” they do not discuss the remaining
documents submitted by Defendants (i.e., Exhibits H through
L) or explicitly dispute their relevance or authenticity. (See
Pls’ Opp'n 31.) The County has argued that the Court
may take judicial notice of these documents because the
Taggart and Kezek Allocutions are transcripts of public court
proceedings and the arrest reports, grand jury indictments,
and Ventillo Complaint and Information are documents filed
in a criminal case before another court. (County's Mem.
13 n.2.) The Court agrees, as there is no genuine dispute
as to their authenticity and the Court “may take judicial
notice of court filings.” Brooks v. Westchester Cnty. Jail,
No. 19-CV-10901, 2021 WL 3292229, at *5 n.8 (S.D.N.Y.
Aug. 2, 2021) (citing Linares v. Annucci, No. 19-CV-11120,
2021 WL 2689736, at *1 n.2 (S.D.N.Y. June 30, 2021));
see also O'Hara v. Cohen-Sanchez, No. 22-CV-6209, 2023
WL 5979176, at *8 n.4 (E.D.N.Y. Aug. 28, 2023) (“The
court may take judicial notice of state court filings.” (citing
Williams v. N.Y.C. Hous. Auth., 816 F. App'x 532, 534 (2d Cir.
2020))); Monroe v. Myskowsky, No. 12-CV-5513, 2014 WL
496872, at *1 n.3 (S.D.N.Y. Feb. 6, 2014) (“The Court may
consider matters of which judicial notice may be taken under
[Federal Rule of Evidence] 201, including public records such
as arrest reports, indictments, and criminal disposition data.”).
However, the Court will consider the documents only for the
fact that they exist, not the truth of the matters asserted therein.
See Ferranti v. Arshack, Hajek & Lehrman PLLC, No. 20-
CV-2476, 2021 WL 1143290, at *3 (S.D.N.Y. Mar. 24, 2021)
(“The [c]ourt may take judicial notice of a document filed
before another court and may consider such documents for the
fact that they exist, but not for the truth of the matters asserted
therein.” (citing Roth, 489 F.3d at 509)), appeal withdrawn,
No. 21-1245, 2021 WL 3575023 (2d Cir. June 23, 2021);
Hutchins v. Solomon, No. 16-CV-10029, 2018 WL 4757970,
at *7 (S.D.N.Y. Sept. 29, 2018) (taking judicial notice of
filings in a court case submitted by a party “only to establish
the fact of such filings and what they contained, not for the
truth of the matter asserted therein” (citation omitted)). 4
B. Factual Background
*4 The following facts are drawn from Plaintiffs’ SAC and
are taken as true for the purpose of resolving the instant
Motion. See Div. 1181 Amalgamated Transit Union-N.Y.
Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94
(2d Cir. 2021) (per curiam).
1. PREA
In 2003, Congress enacted PREA, which was designed to
“provide for the analysis of the incidence and effects of prison
rape ... and provide information, resources, recommendations
and funding to protect individuals from prison rape.” (SAC
¶ 45 (quotations omitted).) As the County was allegedly
aware, PREA provides that state governors must regularly
certify to the U.S. Department of Justice (“DOJ”) that “their
jurisdiction is in full compliance” with PREA standards, or
else be subject to the loss of five percent of certain DOJ funds.
(Id. ¶¶ 46–47.) The County is also allegedly “fully aware of
PREA federal law and its regulations,” and of “the forms and
procedures needed to be submitted to obtain and stay in PREA
compliance with the DOJ.” (Id. ¶¶ 49, 51.)
The County, which operates the Jail, (id. ¶ 60), was
“responsible for the safety of the inmates at [the Jail] and
responsible for creating and enforcing policies and practices
that ensure the safety of the inmates at [the Jail],” (id. ¶ 73),
including “preventing sexual abuse,” (id. ¶ 70). Based on
the enactment of PREA and various state laws, the County
was “aware of the substantial risks of sexual abuse face[d]
by female prisoners in [the Jail],” and “of the statistics that
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dictate sexual abuse is a pervasive problem,” and further knew
“that assigning male staff to guard female prisoners creates
obvious risks of sexual abuse.” (Id. ¶¶ 77–82.)
2. The Jail Policies
The Jail allegedly promulgates rules requiring random and
unannounced supervisory rounds. (Id. ¶ 109.) However,
supervisors typically conduct rounds only once a shift, and
would not actually “do rounds,”—i.e., check on the inmates
—but would instead “predominately only [stand]” for “less
than ten minutes,” “speak with the officers on the shift,” take
notes, and leave. (Id. ¶¶ 107, 109–10.) Plaintiffs allege that,
upon information and belief, the Jail had no requirement that
supervisors had to check in with each officer on duty, ask them
particular questions, speak with the prisoners, or observe the
entire area. (Id. ¶ 111.) After the reports of the Individual
Defendants’ misconduct, as detailed below, the Jail did not
make any changes to its supervisory round practices. (Id. ¶
117.)
Plaintiffs also allege that, upon information and belief,
surveillance cameras were not installed through the Jail or,
to the extent that they were installed, were inadequately
monitored. (Id. ¶¶ 118–20.) Many areas of the Jail, including
enclosed and isolated areas, were in “dead zone[s]” that were
“completely outside of any video or audio surveillance.” (Id.
¶ 119.) No staff member was assigned to view the cameras
either “in real time” or shortly thereafter. (Id. ¶ 120.) Instead,
video footage was only reviewed after an incident was
reported. (Id. ¶ 121.)
The Jail employed approximately 120 male correctional
officers and only approximately 8–10 female correctional
officers. (Id. ¶ 105.) The Jail did not employ any female
sergeants or supervisors. (Id.) Because of this staffing, the
Jail permitted the assignment of male staff, including the
Individual Defendants, to posts wherein they had “ample
opportunity for unmonitored contact with female inmates,
including Plaintiffs.” (Id. ¶ 102.)
*5 Each shift at the Jail was comprised of two male officers
per shift. (Id. ¶ 105.) One officer would be in the control room
“separate and apart from the pod,” and one officer “was able
to walk around to the pod and to various cell.” (Id. ¶ 147.)
This allowed the male staff to often be alone in areas with no
surveillance cameras or other staff in range of visual contact.
(Id.)
The Individual Defendants, all male employees of the
County, were corrections officers at the Jail whose
responsibilities included guarding inmates and supervising
the guarding of inmates. (Id. ¶¶ 41–42.)
3. Jane Doe 1
On or about May 8, 2019, Jane Doe 1 was arrested for assault
and incarcerated at the Jail. (Id. ¶ 153.) While at the Jail, Jane
Doe 1 was only housed in the “F-wing” of the Jail, in the top
level of a pod in individual “cell 14.” (Id. ¶ 154.) Although
Jane Doe 1's cell was located in a “dead zone,” where there
was no direct surveillance from security cameras or other staff
or prisoners, there were many cameras throughout the pod and
the control room. (Id. ¶¶ 155–56.) 5
a. Taggart
In or around July 2019, Jane Doe 1 met Taggart, the assigned
“pod officer” in the “F-wing” from 3:00 PM to 11:00 PM,
who began to befriend her. (Id. ¶ 160.) As time went on,
Taggart began conversing with Jane Doe 1 on a regular
basis and would spend several hours during each shift in
front of her cell speaking with her. (Id. ¶ 161.) Jane Doe
1 alleges that other inmates became upset because of the
favoritism Taggart showed Plaintiff by spending too much
time by her cell, which went on for “months on end.” (Id. ¶
162.) In or around August 2019, Jane Doe 1 alleges that the
“normal conversations,” with Taggart became “more personal
and sexual” and, eventually, “directly sexual” with Taggart
requesting to engage in oral sex with Jane Doe 1 and asking
her “will you be my girlfriend?” (Id. ¶ 163.) Jane Doe 1
alleges that each of these “sexual conversations” took place
when Taggart stood in front of her cell and conversed with
her for “significant amounts of time.” (Id. ¶ 164.) Jane Doe 1
alleges that, at some point, Taggart “went so far as letting her
out of her cell to speak with him when his shift changed from
working within the pod to working in the control room.” (Id.)
On multiple occasions, Taggart brought in contraband for
Jane Doe 1, including alcohol, food, and a burner phone which
he used to speak with Jane Doe 1. (Id. ¶ 165.) Taggart also
promised to keep Jane Doe 1's family “informed on how she
was doing.” (Id.) Jane Doe 1 alleges that after the fifth time
Taggart brought contraband in for her, he began to ask “what
she would do in exchange for him” continuing to bring in
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contraband. (Id.) Taggart allegedly began asking Jane Doe
1 to undress for him and, during cell inspections, to let him
smell her underwear. (Id.) Jane Doe 1 also alleges that Taggart
“would ask ... to smell her urine, touch her underwear, [and]
asked for her tampons to smell.” (Id. ¶ 187.) Jane Doe 1
“obeyed [Taggart's] demands for her to disrobe,” as she was
in a “very vulnerable position” and unable to clearly see “just
how much she was being taken advantage of.” (Id. ¶ 166.)
Jane Doe 1 alleges that during and after her encounter
with Kezek in November 2019, described below, Taggart
continued to engage in an inappropriate relationship with
her, including speaking to her about “sexually inappropriate”
matters, asking her to disrobe, and entering her cell. (Id.
¶ 186.) Jane Doe 1 alleges that she was in “an extremely
vulnerable position as a female prisoner who complained
about a male officer being sexually inappropriate with [her],”
and Taggart “fooled [Jane Doe 1] into thinking that [he]
cared about [her] .... [and] attempted to begin an intimate
relationship ... [by] telling her how the two would be together
when [she] got out of jail.” (Id. ¶ 185.) Jane Doe 1 alleges
that Taggart made Jane Doe 1 “feel as if [he] was looking out
for [her] safety and was protecting her against the harassment
and abuse from the other guards and staff.” (Id.)
*6 In January 2020, Taggart was reprimanded and
suspended following a review by the Jail of the phone
calls between him and Jane Doe 1. (Id. ¶ 189.) The
facility began placing additional security cameras that same
month. (Id.) Jane Doe 1 alleges that in connection with the
allegations in this matter, Taggart was indicted in July 2020
on two felony counts of promoting prison contraband and
several misdemeanor counts of official misconduct. (Id. ¶
193; Weissman Decl. Ex. K.) Taggart pled guilty and was
sentenced to two years of probation. (SAC ¶ 193; Weissman
Decl. Ex. O.) As part of his plea deal, Taggart also had to
resign as a corrections officer. (SAC ¶ 193; Weissman Decl.
Ex. O.)
Jane Doe 1 alleges that the County “knew or should have
known how [Taggart] did the same thing with other woman
prisoners in the past while these other women were housed”
in the Jail and “that [Taggart] was a person who utilized his
position as a correction[s] officer to manipulate exceptionally
vulnerable female prisoners.” (SAC ¶¶ 190, 192.) Jane Doe
1 also alleges that other women with whom Taggart had
relationships “learned about [Taggart's] interest in [Jane Doe
1] and ... have threatened [Jane Doe 1's] safety for even
speaking with [Taggart].” (Id. ¶ 190.)
b. Kezek and John Doe 1
On November 27, 2019, Kezek and John Doe 1 were working
the “day tour.” (Id. ¶ 168.) John Doe 1 placed Jane Doe 1 on
a shift lock—i.e., temporary confinement to one's cell—for
having a hair tie. (Id.) John Doe 1 also ordered Jane Doe 1
to clean the drains located in the yard. (Id.) While Jane Doe
1 was cleaning the drains, Kezek made sexual remarks about
her. (Id. ¶ 169.) After cleaning the drains, Jane Doe 1 was
locked into her cell. (Id.) Kezek then approached Jane Doe
1's cell and remarked that the pictures Jane Doe 1 had on
her cell desk were the same photos that she had posted on
her Instagram account. (Id.) Kezek then stated that he “did
things to [Jane Doe's 1] photos on his time off[.]” (Id.) As he
was making these statements to Jane Doe 1, Kezek became
visibly erect. (Id.) Kezek and John Doe 1 then unlocked Jane
Doe 1's cell door. (Id. ¶ 170.) Kezek stood in Jane Doe 1's
cell doorway, took out his penis, and masturbated for 40 to
60 seconds. (Id.) After he finished, Kezek zipped his pants
back up and closed the door behind him. (Id.) Following this
incident, Jane Doe 1 began experiencing anxiety upon seeing
Kezek. (Id.)
Jane Doe 1 alleges that this was the first time Kezek
entered her cell but not the first time that Kezek
had acted inappropriately in the pod. (Id. ¶ 171.) On
numerous occasions, Jane Doe 1 alleges Kezek intervened in
conversations that other inmates and Jane Doe 1 were having
in the pod and made “inappropriate sexual comments[.]” (Id.)
Jane Doe 1 alleges that on various occasions in the pod,
Kezek: described, in graphic detail, sexual acts that he
enjoyed; informed another inmate that he could help her
masturbate; and stated he wanted to find a different inmate in
town because he wanted to “tear her up.” (Id.)
Jane Doe 1 alleges that she did not immediately report these
incidents with Kezek and John Doe 1 because she “became ...
scared.” (Id. ¶ 173.) On or about December 12, 2019, Jane
Doe 1 reported the incident to the jail chaplain on December
12, 2019, who told a superior officer. (Id. ¶¶ 174–75.) Jane
Doe 1 “quickly” noticed that lieutenants and sergeants “began
treating [her] differently.” (Id. ¶ 174.) On or about that same
date, after Jane Doe 1 began experiencing anxiety attacks and
having nightmares about being raped and stabbed, Jane Doe
1 reported the incident to her psychiatrists. (Id. ¶ 176.) On
December 14, 2019, Jane Doe 1 submitted a formal complaint
against Kezek. (Id. ¶ 179.)
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*7 Jane Doe 1 alleges that once “people” found out
she had submitted a formal complaint, officers refused to
provide Jane Doe 1 necessary daily supplies. (Id. ¶¶ 175,
180.) Additionally, Jane Doe 1 was “labeled a ‘rat,’ ‘dub,’
‘undercover[,]’ an[d] many more inappropriate” names by
several officers in English and Spanish in front of “the rest of
the inmates.” (Id. ¶¶ 175, 180–81.) Jane Doe 1 also alleges
“word spread throughout the jail, fast” about the incidents,
(id. ¶ 177), and Taggart approached Jane Doe 1 and told her
that “other officers were making fun of Kezek in the locker
room,” (id. ¶ 178).
During this period, Jane Doe 1 was “subject to having to
interact” with Kezek during each of his shifts. (Id. ¶ 182.) At
some point, Kezek was moved from the F-wing but remained
assigned to the women's wing of the Jail. (Id. ¶ 184.) Jane
Doe 1 would “still see him if he came up and spoke to other
officers[,]” which would “cause [Jane Doe 1] great anxiety ...
for [her] safety.” (Id.) Jane Doe 1 alleges that the County's
“failure to keep [Kezek] in a separate area from [her]” caused
her anxiety and concern. (Id. ¶ 194.)
Following her formal complaints against Kezek, Jane Doe 1
grew “so anxious and fearful” that she contacted the District
Attorney's Office to have her transfer facilities, but the Jail
refused. (Id. ¶ 188.) On or about February 20, 2020, Jane
Doe 1 was transferred to Orange County Jail. (Id. ¶¶ 188,
195.) Jane Doe 1 alleges that, after her transfer, “word” about
her relationship with Taggart “spread[ ] fast,” and she was
again labeled “a rat” and received threats from “other women
who thought they were in a relationship with [Taggart].” (Id.
¶ 195.) This caused Jane Doe 1's fear for her safety “to
be present and very real, every day.” (Id.) Jane Doe 1 was
released on her own recognizance from Orange County Jail
on July 8, 2020. (Id. ¶ 157.)
Kezek was indicted in July 2020 on five counts of official
misconduct in connection with these incidents, to which he
pled guilty. (Weissman Decl. Exs. L–M.)
4. Jane Doe 2
Jane Doe 2 was incarcerated at the Jail from around
September 2014 until her release in 2017. (Id. ¶ 196.) Jane
Doe 2, who was only eighteen at the time of her incarceration,
soon learned that “the correction[s] officers who had been
hired to protect her ... posed the greatest threat,” and would
“use[ ] their position of power to force female[ inmates] ...
into performing sexual benefits.” (Id. ¶¶ 197–98.) Jane Doe 2
alleges that if she refused the officers’ demands, she would get
harassed by the Individual Defendants and other officers, who
made her time in jail “miserable” and told her that “officers
would go out of their way to penalize her for rules that other
women were also breaking.” (Id. ¶ 201–02.) At first, the
threats were minor, such as not being allowed an extra blanket
if she did not comply, but they escalated to threatening to
lock her in her cell for “23 hours a day,” essentially solitary
confinement. (Id. ¶¶ 203–04.)
In or around January 2015, John Doe 2 approached Jane Doe
2 and said, “show me the brownies”—meaning her breasts
—for which he would put money in her commissary so that
she could call her mother. (Id. ¶ 210.) Jane Doe 2, who had
not had any contact with her mother since being incarcerated,
was “lonely and desperate” and “apprehensively” complied.
(Id. ¶ 211.) The next day, Jane Doe 2 received money in her
commissary account. (Id.)
At some point in or around 2014–2015, Jane Doe 2 was
placed in cell block 19, which is a “dead zone” without any
surveillance. (Id. ¶ 214.) John Doe 2 pretended that Jane
Doe 2 had requested something so he could open the slot
on her cell. (Id. ¶ 214.) He then demanded that Jane Doe
2 place her vagina by the slot so that Ventillo could “play
with” it; after Jane Doe 2 did so, Ventillo penetrated her.
(Id. ¶ 215.) This occurred on three occasions. (Id. ¶¶ 215,
227.) 6 On another occasion, Ventillo stood in the door of
Jane Doe 2's cell, where he forced Jane Doe 2 to stroke his
penis while he penetrated her vagina for a fourth time. (Id.
¶¶ 216, 227.) 7 Jane Doe 2 further alleges, on more than
one occasion between February 2015 and June 2015, other
officers demanded Jane Doe 2 “play with herself for the
officer's personal sexual pleasure.” (Id. ¶ 218.) Jane Doe 2
was released from the Jail in or about 2017. (Id. ¶ 219.) In or
about September 2019, she was rearrested and reincarcerated
at the Jail. (Id. ¶ 220.) When she arrived back at the jail,
Kezek approached Jane Doe 2 and made sexually harassing
comments to her before demanding that she flash him. (Id. ¶
221.) 8
*8 Jane Doe 2's second period of incarceration lasted
approximately 30 days. (Id. ¶ 222.) During that time, she
again witnessed female inmates being directed to flash
officers and play with themselves, at approximately the same
rate of frequency as during her first period of incarceration.
(Id. ¶¶ 222–23.)
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5. Jane Doe 3
Jane Doe 3 was “sporadically” incarcerated at the Jail from in
or about 2012 until in or about 2016. (Id. ¶ 229.) Jane Doe 3
alleges that, during her time at the Jail, Farrison “engaged in
unlawful sexual acts” and “sexually inappropriate behavior”
with her. (Id. ¶¶ 232–33.) Specifically, about three to four
times a week, Farrison forced Jane Doe 3 to remove her
underwear, “show him her naked body,” and touch herself
while he locked her in her cell. (Id. ¶ 234.) If Jane Doe 3
“failed to comply[,] she would be locked in her cell,” so
she “complied out of pure survival.” (Id. ¶ 235.) Jane Doe 3
also alleges she was “offered contraband such as Xanax and
privileges in exchange for her sexual acts.” (Id.)
In 2016, Jane Doe 3 was released from custody and released
into “sheriff's work,” where she was required to participate in
supervised community service as part of her sentence. (Id. ¶¶
230–31.) During this work, Farrison touched her, “grabb[ing]
her butt and legs on several occasions.” (Id. ¶ 240.) Farrison
also obtained Jane Doe 3's home address information from the
facility database and came to Jane Doe 3's house once she was
released. (Id. ¶ 241.) Jane Doe 3 alleges that, after her release,
Farrison “forced her to have sex[ ] against her will.” (Id. ¶
242.)
6. Jane Doe 4
Jane Doe 4 was incarcerated sporadically in the Jail from
in or about 2012 until in or about 2018. (Id. ¶ 243.)
During her incarceration, Helchowski “sexually harassed”
and “engaged in unlawful sexual acts” and “sexually
inappropriate behavior” with Jane Doe 4. (Id. ¶¶ 244–47.)
Specifically, Helchowski forced Jane Doe 4 to “flash him each
and every time he walked by her cell,” which occurred at
least three or four times a week. (Id. ¶ 248.) Helchowski was
allegedly aware Jane Doe 4 had a drug abuse problem, and
“capitalized on [her] vulnerability.” (Id.)
Jane Doe 4 also alleges that John Doe 5, the son of one of
the Jail supervisors, “sexually harassed” her and “engaged in
unlawful sexual acts” and “sexually inappropriate behavior”
with her. (Id. ¶¶ 249–52.) Jane Doe 4 avers that, beginning in
2012 and continuing through the duration of her first period
of incarceration at the Jail, John Doe 5 would force Jane Doe
4 to touch his penis. (Id. ¶ 252.) This contact occurred outside
Jane Doe 4's jail cell. (Id.) Jane Doe 4 complied out of “pure
survival,” as she feared “repercussions for non-compliance,”
especially given that John Doe 5's father was a supervisor. (Id.
¶ 253.)
7. Jane Doe 5
Jane Doe 5 was incarcerated at the Jail in 2019. (Id. ¶ 260.)
During this time, John Doe 1 sexually harassed Jane Doe 5
and “engaged in sexually inappropriate behavior with her,”
forcing Jane Doe 5 to “touch herself and flash him,” which
occurred consistently during her time at the Jail. (Id. ¶¶ 260–
62.) 9 If Jane Doe 5 did not do so, she would be locked
in her cell. (Id. ¶ 263.) Jane Doe 5 “complied out of pure
survival” and was also offered “contraband” and “privileges”
in exchange for performing sexual acts. (Id.) Jane Doe 5
also avers that, upon information and belief, the Individual
Defendants would obtain female inmates’ addresses and
names from the Jail computer system and use that information
against them once the inmates were released. (Id. ¶ 264.) Jane
Doe 5's fear that this would occur to her compelled her to
comply with John Doe 1's demands. (Id. ¶ 265.)
8. Jane Doe 6
*9 Jane Doe 6 was incarcerated in the Jail for the first time
in September 2017 and for a second time in or about October
2019. (Id. ¶ 268.) Consistently throughout Jane Doe 6's first
period of incarceration, John Does 2, 3, and 4 engaged in
“sexually inappropriate behavior” with Jane Doe 6, forcing
her to flash them, engage in intimate conversations with them,
and “act as if she were in relationships with [them.]” (Id.
¶ 270–71.) John Does 2 through 4 would then “use[ ] such
a false relationship to progress into sexually inappropriate
behavior.” (Id. ¶ 271.) Jane Doe 6 complied out of “pure
survival,” as if she failed to comply, she would be locked
in her cell. (Id. ¶¶ 272–73.) Jane Doe 6 was also offered
“contraband as privileges in exchange for her sexual acts”;
John Does 2 through 4 would then deliver her the contraband.
(Id. ¶ 274.)
Jane Doe 6 also alleges that, during her second period of
incarceration, in 2019, Kezek subjected her to “sexually
inappropriate behavior” and made numerous jokes to her
about the size of his genitalia. (Id. ¶ 275.)
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9. The Culture of the Jail
Jane Doe 1 alleges that the type of “sexual harassment
and abuse” she experienced were “widespread,” and that
it was “the culture of the facility[ ] for many officers
to ... make inappropriate sexual comments both directly and
indirectly to inmates.” (Id. ¶ 172.) Specifically, Jane Doe
1 alleges that an unidentified officer from another section
of the jail would “casually come by” to “check out the
inmates” and make sexually inappropriate comments about
“intimate parts” of their bodies, and that another unidentified
officer would call female inmates derogatory names linked
to their gender and threaten sexual violence against them if
they “didn't lock in.” (Id.) Jane Doe 1 avers that “superior
officers failed to protect [her] from continued harassment ...
[and] [o]fficers [were] not held accountable for flagrant and
constant sexual[ly] harassing comments[,] ... [as] disciplinary
actions [were] never taken.” (Id. ¶ 183.)
Jane Doe 2 alleges that, during her time in the Jail, she
“frequently” saw officers pass by the female inmates’ cells
and “ask the women to flash their breast[s] to the officers
if they wanted certain treatment,” such as the officer putting
money in the inmate's commissary account. (Id. ¶ 199.)
Individual Defendants would give contraband or benefits to
the inmates in exchange for sexual favors, ranging from
“Dunkin Donuts, extra supplies, monies on your commissary,
and turning a blind eye to any medicinal abuse.” (Id. ¶
200.) Jane Doe 2 alleges that she witnessed the Individual
Defendants going after drug addicts specifically, as they were
“especially vulnerable and would do anything for an officer
if they agreed to get them drugs.” (Id. ¶ 206.) Jane Doe 2 also
witnessed “frequent sexual abuse,” up to five times a shift,
three shifts a day. (Id. ¶ 209.) She witnessed officers come up
to other female inmates’ cells and “demand that [they] play
with themselves in a way the officers could watch.” (Id. ¶
212.) During her time at the Jail, Jane Doe 2 realized that the
officers all had a code—“Mess with one, then you mess with
them all.” (Id. ¶ 208.)
Jane Does 3, 4, 5, and 6 also allege that during their
incarceration, they witnessed other inmates endure similar
abuse, as the “culture of the facility” was for officers—a
“majority” of whom participated in this behavior—to walk by
inmates’ cells and “have the inmates flash [the officers] or
speak with them intimately.” (Id. ¶¶ 237–38, 258, 266, 276.)
Jane Does 3, 4, 5, and 6 also aver that, upon information
and belief, many of the inmates were “asked to disrobe and
told to gratify ... themselves for the officers[’] ... sexual
pleasure.” (Id. ¶¶ 239, 259, 267, 277.)
C. Procedural History
The Court discussed the procedural background of this Action
in a previous Opinion. (See Op. & Order.) The Court therefore
assumes familiarity with the dispute and describes subsequent
proceedings only as relevant to deciding the instant Motion.
*10 On October 23, 2023, Plaintiffs filed a SAC, adding
for the first time Jane Does 2 through 6 as Plaintiffs. (See
SAC.) On December 12, 2023, after requesting and receiving
additional time to respond to the SAC, the County submitted
a letter requesting to file a Motion to Dismiss. (See Dkt.
Nos. 75–76; Letter from Robert B. Weissman, Esq. (Dkt. No.
77).) After multiple requests for additional time, which were
granted, Plaintiffs filed their response on January 18, 2024.
(See Dkt. Nos. 78–81; Letter from Steven A Metcalf, Esq.
(Dkt. No. 82).) After holding a pre-motion conference on
February 7, 2024, the Court set a briefing schedule. (See Dkt.
(minute entry for Feb. 7, 2024); Scheduling Order (Dkt. No.
84).) The briefing schedule was later modified after requests
from the County. (See Dkt. Nos. 85–90.)
On May 3, 2024, the County submitted its Motion to Dismiss
the SAC and accompanying papers. (Not. of Mot. to Dismiss;
County's Mem; Weissman Decl.) After requesting and
receiving multiple extensions, (Dkt. Nos. 94–98), Plaintiffs
filed their Opposition on August 1, 2024. (Pls’ Opp'n.)
The County filed its Reply on September 16, 2024, after
requesting and receiving yet another extension. (Dkt. Nos.
100–01; Reply; Weissman Reply Affirm.)
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does
not need detailed factual allegations” to survive a motion
to dismiss, “a plaintiff's obligation to provide the grounds
of [its] entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (alteration and quotation marks
omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotation marks omitted). “Nor does
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a complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. (alteration and quotation
marks omitted). Instead, a complaint's “[f]actual allegations
must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555.
Although “once a claim has been stated adequately, it may
be supported by showing any set of facts consistent with
the allegations in the complaint,” id. at 563, and a plaintiff
must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not
“nudged [his or her] claims across the line from conceivable
to plausible, the[ ] complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. 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. But 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.’
” (citation omitted) (second alteration in original) (quoting
Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks
a notable and generous departure from the hypertechnical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.”).
“[W]hen ruling on a defendant's motion to dismiss, a judge
must accept as true all of the factual allegations contained
in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94
(2007), and “draw[ ] all reasonable inferences in favor of
the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992 F. Supp.
2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's
Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally,
“[i]n adjudicating a Rule 12(b)(6) motion, a district court
must confine its consideration to facts stated on the face of
the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of
which judicial notice may be taken.” Leonard F. v. Isr. Disc.
Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (citation and
quotation marks omitted); see also Wang v. Palmisano, 157 F.
Supp. 3d 306, 317 (S.D.N.Y. 2016) (same).
B. Analysis
1. Counts One, Two, and Four
*11 Plaintiffs allege claims against Defendants based
on violations of the Eighth, Fourteenth, and Fourth
Amendments. (SAC ¶¶ 278–303, 357–67.) However, as the
Court held in its prior Order, these claims are defectively pled
because they allege liability directly under the Constitution,
and there is no such direct cause of action for damages under
the Constitution. (See Op. & Order at 17–18, n.11 (citing
Runge v. Collins, No. 99-CV-9639, 2000 WL 726502, at *2
(S.D.N.Y. May 22, 2000) (explaining that “[v]iolations of an
individual's constitutional rights by a [g]overnment official
are actionable under 42 U.S.C. § 1983, rather than directly
under the United States Constitution”)).) Thus, Plaintiffs’
first, second, and fourth causes of action fail as a matter
of law and must be dismissed. 10 However, because the
SAC incorporates Plaintiffs’ allegations as to the Eighth and
Fourteenth Amendment claims into their third cause of action
under 42 U.S.C. § 1983, the Court reads the SAC as alleging
those claims and considers the merits of those claims below,
in connection with Plaintiffs’ Monell claims. 11
2. Jane Doe 2 Through 6: Remaining Federal Claims
The County argues that, apart from those asserted by Jane
Doe 1, all of the remaining federal claims are time barred.
Specifically, the County argues that the federal claims
asserted by Jane Does 2 through 6 are time barred by the
three-year statute of limitations for §§ 1983 and 1985 claims,
and the one-year statute of limitations for § 1986 claims.
(County's Mem. 22.) Further, the County argues that these
federal claims cannot be revived by the Adult Survivors Act,
New York Civil Practice Law and Rules Law § 214-j (the
“ASA”). (Id. at 23.) The Court agrees.
While Section 1986 has a strict one-year statute of limitations,
see 42 U.S.C. § 1986, for §§ 1983 and 1985 actions,
“the applicable limitations period is found in the general
or residual state statute of limitations for personal injury
actions,” Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d
Cir. 2002) (citation and quotation marks omitted) (alterations
adopted). Here, New York's three-year statute of limitations
for personal injury actions applies. Id. (citing, inter alia,
N.Y. C.P.L.R. § 214(5)); see also Fairley v. Collins, No.
09-CV-6894, 2011 WL 1002422, at *3 (S.D.N.Y. Mar. 15,
2011) (same). The question of when §§ 1983, 1985, and
1986 claims accrue is a “question of federal law.” Wallace
v. Kato, 549 U.S. 384, 388 (2007). “[A]ccrual occurs when
the plaintiff knows or has reason to know of the injury which
is the basis of his action.” Pearl, 296 F.3d at 80 (citation
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and quotation marks omitted); Paige v. Police Dep't of City
of Schenectady, 264 F.3d 197, 200 (2d Cir. 2001) (“[A] §
1983 claim accrues when the alleged conduct has caused
the claimant harm and the claimant knows or has reason to
know of the allegedly impermissible conduct and the resulting
harm.” (internal quotation marks and citation omitted)); see
Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (noting
§ 1985 claims accrue once the plaintiff knows or has reason
to know of the injury forming the basis of the action); see
Young v. Lord & Taylor, LLC, 937 F. Supp. 2d 346, 354
(E.D.N.Y. 2013) (same, in the context of a § 1986 action). Put
differently, accrual occurs when the plaintiff has “a complete
and present cause of action, that is, when the plaintiff can file
suit and obtain relief.” Wallace, 549 U.S. at 388 (citations and
quotation marks omitted).
*12 As alleged, Jane Doe 2 was incarcerated “on and
off” from September 2014 through 2017, and again briefly
in 2019, (SAC ¶¶ 196, 225); Jane Doe 3 was incarcerated
from 2012 through 2016, (id. ¶¶ 229–30); Jane Doe 4 was
incarcerated from “2012 until in or about 2018,” (id. ¶ 243);
Jane Doe 5 was incarcerated “[d]uring the year of 2019,” (id.
¶ 260); and Jane Doe 6 was incarcerated in September 2017
and again “in or about October 2019,” (id. ¶ 268). Jane Does 2
through 6's claims accrued, at the very latest, by their release
from incarceration. Thus, their §§ 1983 and 1985 claims
expired, at the latest, three years after their respective releases
(i.e., expiring between 2019 and 2022) and their § 1986 claims
expired one year after release (i.e., expiring between 2017
and 2020). Because Jane Does 2 through 6 were not joined
in this lawsuit until the filing of the SAC in October 2023,
their claims are thus time barred and must be dismissed. See
Wheeler v. Slanovec, No. 16-CV-9065, 2019 WL 2994193, at
*7–8 (S.D.N.Y. July 9, 2019) (granting motion to dismiss on
the grounds that plaintiffs’ claims are time-barred).
Plaintiffs do not dispute that these claims are time barred
but instead assert that they should gain the benefit of
equitable tolling, as they feared retaliation if they filed suit
against Defendants. (Pls’ Opp'n 42–43.) While the Court is
sympathetic to this claim, the law does not support it.
Under federal law, equitable tolling of the statute of
limitations is applied “only in ‘rare and exceptional
circumstances,’ where ... ‘extraordinary circumstances’
prevented a party from timely performing a required act.”
Davis v. Jackson, No. 15-CV-5359, 2016 WL 5720811, at
*9 (S.D.N.Y. Sept. 30, 2016) (quoting Deraffele v. City of
New Rochelle, No. 15-CV-282, 2016 WL 1274590, at *11
(S.D.N.Y. Mar. 30, 2016)); see also Moses v. Westchester
Cnty. Dep't of Corr., 951 F. Supp. 2d 448, 454 (S.D.N.Y. 2013)
(“[C]ourts in th[e] [Second] Circuit deciding [§] 1983 claims
have applied the federal equitable tolling standard, which
allows tolling where extraordinary circumstances prevented
a party from timely performing a required act.” (internal
quotation marks omitted)). “Equitable tolling is generally
not available where the circumstances that a plaintiff claims
prevented h[er] from timely filing were within the plaintiff's
control.” Davis, 2016 WL 5720811, at *9 (quoting Myers
v. New York, No. 14-CV-1492, 2016 WL 2636295, at *5
(N.D.N.Y. May 9, 2016)); see also Walker v. Jastremski, 430
F.3d 560, 564 (2d Cir. 2005) (finding that equitable tolling
was not available where pro se litigant's delay in filing his
§ 1983 action appeared to be entirely within his control).
Moreover, “[t]he party asserting that equitable tolling applies
must have ‘acted with reasonable diligence throughout the
period [s]he [sought] to toll.’ ” Myers, 2016 WL 2636295,
at *5 (quoting Doe v. Menefee, 391 F.3d 147, 159 (2d Cir.
2004)). “[A] plaintiff bears the burden of establishing that
equitable tolling of her claims is appropriate.” Id. However,
“[t]o secure equitable tolling, it is not enough for a party
to show that [s]he experienced extraordinary circumstances.
[Sh]e must further demonstrate that those circumstances
caused h[er] to miss the original filing deadline.” Harper v.
Ercole, 648 F.3d 132, 137 (2d Cir. 2011); see also Guo v.
IBM 401(k) Plus Plan, 95 F. Supp. 3d 512, 527 (S.D.N.Y.
Mar. 26, 2015) (“[T]o benefit from equitable tolling, a litigant
must allege that extraordinary circumstances prevented h[er]
from acting in a timely manner.” (internal quotation marks
omitted)).
Plaintiffs have failed to show such extraordinary
circumstances here. Although Plaintiffs acknowledge that
retaliation is typically an insufficient basis for equitable
tolling, they argue that tolling should nevertheless apply
because the “prison context establishes ‘a real and ever-
present force in an inmate's life’ which ‘can reasonably be
said to be outside of an inmate-plaintiff's control.’ ” (Pls’
Opp'n 43 (quoting Davis, 2016 WL 5720811, at *11).)
But Plaintiffs overlook that not “every inmate is entitled
to equitable tolling merely because [s]he resides in an
environment that intrinsically works to [her] disadvantage,”
as “[g]eneralized allegations of fear of retaliation ... are not
sufficient to establish ‘extraordinary circumstances.’ ” Davis,
2016 WL 5720811, at *11.
*13 As the County points out, even if the Court assumes
that Plaintiffs allege sufficient facts suggesting they had a
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legitimate fear of retaliation if they reported their claims of
sexual abuse while incarcerated, once Jane Does 2 through
6 were released from incarceration—when all of their claims
would still have been timely—they were “no longer under the
‘substantial control’ of the defendant correction officers and
supervisory officials, and accordingly no longer subject to the
‘unique psychological environment’ of incarceration.” Stone
#1 v. Annucci, No. 20-CV-1326, 2021 WL 4463033, at *12
(S.D.N.Y. 2021) (quoting Davis, 2016 5720811, at *10–11).
There are no specific facts alleged in the SAC suggesting Jane
Does 2 through 6 had a credible basis to fear retaliation after
their release, let alone any facts suggesting that they did, in
fact, fear retaliation at that point. 12 See id. (finding plaintiff
did not allege facts establishing a “specific and credible basis
to fear retaliation once she was released from prison”); Pratt
v. Stop & Shop Supermarket Co., LLC, No. 09-5417, 2011
WL 579152, at *5 (E.D.N.Y. Feb. 9, 2011) (“[P]laintiffs[’]
generalized allegations of fear are insufficient to warrant
equitable tolling.” (citation omitted)).
Moreover, even if Plaintiffs alleged sufficient facts to
suggest a specific and credible basis to fear retaliation post
incarceration, they have not established another element of
equitable tolling—that they pursued their claims with due
diligence. Myers, 2016 WL 2636295, at *5–6. Because
Plaintiffs allege no facts suggesting they sought any
protection from the purportedly feared retaliation, “the Court
would be hard pressed to conclude that Plaintiff[s] exercised
reasonable diligence in pursuing [their] rights if, for the entire
time Plaintiff[s] allege[ ] [they] faced a threat of retaliation,
[they] did nothing to seek protection from that threat of
retaliation.” Davis, 2016 WL 5720811, at *11; see also Doe v.
USA, No. 19-CV-1649, 2024 WL 4224467, at * 6 (D. Conn.
Sept. 12, 2024) (finding a plaintiff did not act with reasonable
diligence in pursuing her rights where “[p]laintiff had ample
time, opportunity, and access to many other people who could
have safely assisted her prior to ... the latest arguable accrual
date for her claims”), appeal pending, No. 24-2374 (2d Cir.
Sept. 11, 2024); Clark v. Hanley, No. 18-CV-1765, 2022 WL
124298, at *5–6 (D. Conn. Jan. 13, 2022) (finding equitable
tolling based on a fear of retaliation was not warranted where
plaintiff never reported any behavior by defendants that led to
her fear despite opportunities to do so), aff'd, 89 F.4th 78 (2d
Cir. 2023). Accordingly, the Court concludes that Jane Does
2 through 6 cannot equitably toll their federal claims.
Further, to the extent Plaintiffs are attempting to revive
their federal claims by way of the ASA, (see Pls’ Opp'n
42), they are unsuccessful. The ASA “created a one-year
revival period, starting November 24, 2022, during which
adult survivors of sexual assault could sue their abusers
despite the expiration of the previously applicable statutes
of limitation.” Johnson v. NYU Langone Health, No. 22-
CV-9456, 2023 WL 6393466, at *2 (S.D.N.Y. Sept. 30, 2023)
(citation omitted). The Second Circuit has not yet considered
whether the ASA can revive §§ 1983, 1986, or 1986 claims.
However, it recently held that a nearly identical revival
statute pertaining to victims under eighteen years old does not
revive § 1983 claims. See Kane v. Mount Pleasant Central
Sch. Dist., 80 F. 4th 101, 108 (2d Cir. 2023). The Second
Circuit reasoned that per Supreme Court precedent, “federal
interests in uniformity, certainty, and the minimization of
unnecessary litigation” require a single statute of limitations
for § 1983 claims—i.e., state personal injury statutes. Id. at
107 (quoting Wilson v. Garcia, 471 U.S. 261, 275 (1985)).
Accordingly, the “application of [state] tort-specific revival or
tolling provisions” would frustrate those interests and cause
confusion. Id. at 109. In so holding, the Second Circuit noted
that “every United States Court of Appeals to address this
issue thus far has determined that a specialized statute for
sexual abuse claims does not render an otherwise untimely
Section 1983 ... timely.” Id. (collecting cases).
*14 Although Plaintiffs argue that the “facts and
circumstances [here] are unique and consistent with the
underlying policies” behind the ASA, (Pls’ Opp'n 42), the
Court finds Kane’s reasoning persuasive and concludes that
the same reasoning applies to the ASA, see Doe v. Columbia
Univ., No. 23-CV-10393, 2024 WL 4149252, at *11 n.6
(S.D.N.Y. Sept. 11, 2024) (stating, after plaintiff's concession
that the ASA did not revive his federal claims, “[t]here is
no authority for the proposition that the ASA revives other
federal claims,” but noting that “the most direct guidance
from the Second Circuit is that the analogous New York
Child Victims Act, (‘CVA’) does not” (citing Kane, 80 F.
4th at 104)); Austin v. Fordham Univ., No. 21-CV-6421,
2022 WL 4626485, at *11 n.6 (S.D.N.Y. Sept. 30, 2022)
(“[T]he Court is not persuaded that [the ASA] will have any
impact on the statute of limitations and tolling analysis” in the
Title IX context, as “[c]ourts that considered revival claims
under an analogous statute, the [CVA], found that the Act
did not extend the statute of limitations for federal § 1983
claims.”). 13
3. Monell Claims (Counts Three, Five, and Six)
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The Court next turns to Jane Doe 1's Monell claims
against the County (Counts Three, Five, and Six) based on
violations of her rights under the Fifth, Eighth, and Fourteenth
Amendments. (SAC ¶¶ 305–21, 368–80.) The County argues
that Jane Doe 1's claims must be dismissed because she has
not adequately alleged either a widespread custom or practice
that subjected her to a deprivation of her Constitutional rights
or a failure to train or supervise to the extent that it amounted
to deliberate indifference to Jane Doe 1's rights. (County's
Mem. 27–33.) Jane Doe 1 argues that, drawing all inferences
in her favor, she has alleged sufficient indicia of a widespread
pattern such that “policy-makers must have been aware yet
inadequately responded.” (Pl.’s Opp'n 32–39.)
*15 “To state a claim under [§ 1983], the plaintiff must show
that a defendant, acting under color of state law, deprived [her]
of a federal constitutional or statutory right.” Sykes v. Bank of
Am., 723 F.3d 399, 405–06 (2d Cir. 2013). “Congress did not
intend municipalities to be held liable [under § 1983] unless
action pursuant to official municipal policy of some nature
caused a constitutional tort.” Monell v. Dep't of Soc. Servs. of
City of N.Y., 436 U.S. 658, 691 (1978). Thus,
to prevail on a claim against a
municipality under section 1983 based
on acts of a public official, a plaintiff
is required to prove: (1) actions taken
under color of law; (2) deprivation of
a constitutional or statutory right; (3)
causation; (4) damages; and (5) that
an official policy of the municipality
caused the constitutional injury.
Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008);
cf. Salvatierra v. Connolly, No. 09-CV-3722, 2010 WL
5480756, at *10 (S.D.N.Y. Sept. 1, 2010) (recommending
dismissal of a claim against agencies where plaintiff did not
allege that any policy or custom caused the deprivation of his
rights), report and recommendation adopted, 2011 WL 9398
(S.D.N.Y. Jan. 3, 2011); Arnold v. Westchester County, No.
09-CV-3727, 2010 WL 3397375, at *9 (S.D.N.Y. Apr. 16,
2010) (recommending dismissal of a claim against a county
because the complaint “does not allege the existence of an
unconstitutional custom or policy”), adopted as modified
sub nom. Arnold v. Westchester Cnty. Dep't of Corr., 2010
WL 3397372 (S.D.N.Y. Aug. 25, 2010). The fifth element
reflects the notion that “a municipality may not be held liable
under § 1983 solely because it employs a tortfeasor.” Bd.
of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997); see
also Newton v. City of New York, 566 F. Supp. 2d 256, 270
(S.D.N.Y. 2008) (“As subsequently reaffirmed and explained
by the Supreme Court, municipalities may only be held
liable when the municipality itself deprives an individual of a
constitutional right.”). In other words, a municipality may not
be liable under Section 1983 “by application of the doctrine
of respondeat superior.” Pembaur v. City of Cincinnati, 475
U.S. 469, 478 (1986); see also Vassallo v. Lando, 591 F.
Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting that “a municipal
entity may only be held liable where the entity itself commits
a wrong” (emphasis in original)). Instead, there must be a
“direct causal link between a municipal policy or custom
and the alleged constitutional deprivation.” City of Canton v.
Harris, 489 U.S. 378, 385 (1989); see also City of St. Louis
v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnments
should be held responsible when, and only when, their official
policies cause their employees to violate another person's
constitutional rights.”).
“In determining municipal liability, it is necessary to conduct
a separate inquiry into whether there exists a ‘policy’ or
‘custom.’ ” Davis v. City of New York, 228 F. Supp. 2d 327,
336 (S.D.N.Y. 2002), aff'd, 75 F. App'x 827 (2d Cir. 2003). A
plaintiff may satisfy the “policy or custom” requirement by
alleging one of the following:
(1) a formal policy officially endorsed
by the municipality; (2) actions taken
by government officials responsible
for establishing the municipal policies
that caused the particular deprivation
in question; (3) a practice so consistent
and widespread that, although not
expressly authorized, constitutes a
custom or usage of which a
supervising policy-maker must have
been aware; or (4) a failure by
policymakers to provide adequate
training or supervision to subordinates
to such an extent that it amounts to
deliberate indifference to the rights of
those who come into contact with the
municipal employees.
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*16 Brandon v. City of New York, 705 F. Supp. 2d 261,
276–77 (S.D.N.Y. 2010) (citations omitted). Generally, “a
custom or policy cannot be shown by pointing to a single
instance of unconstitutional conduct by a mere employee of
the [municipality].” Newton, 566 F. Supp. 2d at 271; see
also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–
24 (1985) (plurality opinion) (“Proof of a single incident of
unconstitutional activity is not sufficient to impose liability
under Monell, unless proof of the incident includes proof
it was caused by an existing, unconstitutional municipal
policy, which policy can be attributed to a municipal
policymaker.”); Brogdon v. City of New Rochelle, 200 F.
Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by
itself is generally insufficient to establish the affirmative
link between the municipal policy or custom and the alleged
unconstitutional violation.”). In the end, therefore, “a plaintiff
must demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the alleged
injury.” Roe, 542 F.3d at 37 (quoting Brown, 520 U.S. at
404); see also Tuttle, 471 U.S. at 824 n.8 (“The fact that a
municipal ‘policy’ might lead to ‘police misconduct’ is hardly
sufficient to satisfy Monell’s requirement that the particular
policy be the ‘moving force’ behind a constitutional violation.
There must at least be an affirmative link between [for
example] the training inadequacies alleged, and the particular
constitutional violation at issue.” (emphasis in original));
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)
(“Absent a showing of a causal link between an official policy
or custom and the plaintiffs’ injury, Monell prohibits a finding
of liability against the [c]ity.”); Johnson v. City of New York,
No. 06-CV-9426, 2011 WL 666161, at *3 (S.D.N.Y. Feb.
15, 2011) (noting that after demonstrating the existence of
a municipal policy or custom, “a plaintiff must establish a
causal connection—an affirmative link—between the policy
and the deprivation of his constitutional rights” (internal
quotation marks omitted)).
a. Widespread Practice or Custom
Jane Doe 1 argues that she has adequately pled the existence
of a widespread practice or custom of tolerating sexual
harassment and abuse, as she alleges the Jail had a “custom
of allowing one male officer to supervise females without
cameras and the ability to deter other officers,” (see SAC ¶¶
343–56), which led to “almost a decade of abuse that can
be accounted for, on a daily basis, by multiple officers who
were trading contraband and privileges for sexual acts,” (Pl.’s
Opp'n 39). Jane Doe 1 does not allege that there is any formal
policy underlying this abuse, but instead, that it is so common
as “to support an inference that [supervisors] had a policy,
custom or usage of acquiescence in such abuse.” (Id. at 38
(quoting Jones v. Town of East Haven, 691 F.3d 72, 82 (2d
Cir. 2012)).)
To establish Monell liability based upon a “persistent and
widespread” practice by a subordinate municipal employee
(or employees) other than a policymaker, the employee's
unconstitutional conduct must be “ ‘so manifest as to
imply the constructive acquiescence of senior policy-making
officials.’ ” Lucente v. County of Suffolk, 980 F.3d 284, 297–
98 (2d Cir. 2020) (quoting Sorlucco v. N.Y.C. Police Dep't,
971 F.2d 864, 870–71 (2d Cir. 1992)); see also Triano v. Town
of Harrison, 895 F. Supp. 2d 526, 532 (S.D.N.Y. 2012) (“[A]
plaintiff must prove that the custom at issue is permanent
and well-settled.” (citing Praprotnik, 485 U.S. at 127)). “[A]
custom or policy cannot be shown by pointing to a single
instance of unconstitutional conduct by a mere employee
of the [government].” Bowen v. County of Westchester, 706
F. Supp. 2d 475, 484 (S.D.N.Y. 2010) (quoting Newton v.
City of New York, 566 F. Supp. 2d 256, 270–71 (S.D.N.Y.
2008)); see also Tuttle, 471 U.S. at 823–24; Sorlucco, 971
F.2d at 870 (“A municipal agency may not be held liable under
§ 1983 simply for the isolated unconstitutional acts of its
employees.”). Instead, “in assessing whether it can be inferred
that municipal policymakers acquiesced in unconstitutional
conduct of a subordinate employee, it is important to analyze
the severity and scope of the unconstitutional conduct by the
employee or multiple employees.” Lucente, 980 F.3d at 298.
Here, Jane Doe 1 pleads sufficient facts to infer that the
County had an informal policy, or custom, of tolerating
sexual abuse and harassment by corrections officers, which
directly led to her own constitutional violations. 14 Jane Doe
1 alleges that, during her incarceration in the Jail, she was
sexually harassed by Kezek, Taggart, and John Doe 1, (see
supra Section I.B.3.), and that it was “the culture of the
facility[ ] for many officers to ... make inappropriate sexual
comments both directly and indirectly to inmates,” (SAC
¶ 172; see supra Section I.B.9). Further, the SAC contains
allegations that, over a seven-year period, at least five other
inmates were continually abused and harassed in substantially
similar ways by at least nine separate officers (including the
son of one of the Jail's supervisors). (See supra Section I.B.4–
8.) The SAC also contains allegations that apart from the
specific instances alleged, there was a widespread culture of
officers coercing female inmates into trading sexual favors
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for contraband or benefits to the inmates, as well as a culture
of officers making sexually inappropriate or disparaging
remarks to or about female inmates. (See supra Section I.B.9.)
Thus, Jane Doe 1 “has not alleged one isolated incident
of ... misconduct,” but instead, “has alleged multiple incidents
over a long, continuous time period.” Michael v. County
of Nassau, No. 09-CV-5200, 2010 WL 3237143, at *4
(E.D.N.Y. Aug. 11, 2010); see also DiPippo v. County of
Putnam, 2019 WL 1004152, at *9 (S.D.N.Y. Feb. 28, 2019)
(finding a plaintiff adequately plead a Monell claim where
he “pleaded ample specific facts indicating that [d]efendants
used extremely similar coercive investigative techniques on
at least six witnesses”); cf. Lucente, 980 F.3d at 298 (reversing
a grant of summary judgment in favor of a municipality
where one officer was alleged to have sexually assaulted and
harassed six inmates over eighteen months, and where “the
record [was] replete with evidence of ... sexual harassment
of female inmates on a regular basis” by the same officer);
Rutherford v. City of Mount Vernon, 698 F. Supp. 3d 574, 612
(S.D.N.Y. 2023) (finding plaintiffs could sustain, at summary
judgment, a widespread practice theory of Monell liability
when they proffered evidence of fourteen complaints of police
misconduct, eight of which occurred over a 36-month period,
that “detail[ed] substantially similar conduct on the part of the
[police]”).
*17 Moreover, the fact that much of this alleged conduct
occurred in areas that were subject to supervisory visits,
(SAC ¶¶ 107–11), “suggests that the officers involved did
not fear supervisory personnel observing their conduct,
intervening to stop them, or subjecting them to disciplinary
action for their misdeeds,” Michael, 2010 WL 3237143, at
*4 (allegations that corrections officers failed to “regularly
patrol the tiers/areas to which they were assigned” suggested
“inattention to or knowing acquiescence in misconduct by
law enforcement personnel,” thereby successfully pleading a
widespread practice or custom (citing Bangura v. County of
Nassau, No. 07-CV-2966, 2009 WL 57135, at *1 (E.D.N.Y.
Jan. 6, 2009))). In other words, these allegations suggest
that the Individual Defendants’ abusive behavior was “not
isolated, but rather was severe, persistent, and pervasive
conduct that was executed in a manner that would have
been difficult to conceal from supervisory personnel at the
[Jail], including policymakers.” Cf. Lucente, 980 F.3d at 297–
99 (reversing a grant of summary judgment in favor of a
municipality because a corrections officer's misconduct was
so blatant as to be “open and notorious,” thus “constructively
support[ing] the inference that policymakers ... had a custom
or practice of acquiescing to [the] sexual misconduct”); see
Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 63 (2d
Cir. 2014) (“[B]ased on the pervasiveness of the harassment
and the lack of response, the jury could reasonably have
found that [the policymaker's] inaction and acquiescence
to the harassment that [the plaintiff] suffered allowed the
harassment to become the custom and practice, if not the
policy, of the [municipality].”).
The County argues that because “[p]leadings articulating
only isolated instances of unconstitutional behavior do
not plausibly allege a well-settled custom, ... the SAC's
allegations that certain rogue officers engaged in sexual
misconduct” fail to plead a widespread custom or practice.
(County's Mem. 27–28.) Although the Court agreed when
granting the County's Motion to Dismiss the First Amended
Complaint (“FAC”) that “[s]everal instances of alleged
sexual harassment [as to Jane Doe 1] and additional
instances of disparaging comments involving different low-
level defendants, as troubling as they may be, are insufficient
to support a claim of a widespread pattern or practice,” (Op. &
Order 19–20 (citations omitted)), the SAC contains far more
robust allegations, including multiple, specific instances of
abuse allegedly perpetrated by multiple defendants against
multiple female inmates over an extended period of time.
Thus, Jane Doe 1 has not merely “alleg[ed] [her] own
experiences and then extrapolat[ed them] to the entire jail
population.” See Williams v. Fryermuth, No. 23-CV-2156,
2024 WL 4557444, at *5 (S.D.N.Y. Oct. 23, 2024)
(dismissing Monell claim where plaintiff only alleged specific
misconduct done to her); Douglas v. City of Peeksill, No.
21-CV-10644, 2023 WL 2632217, at *9 (S.D.N.Y. Mar. 24,
2023) (dismissing Monell claim where plaintiff identified
only isolated instances of constitutional violations). Instead
—in addition to the general allegations about the Jail's culture
of harassment—Jane Doe 1 has alleged over fifteen specific
instances of sexual abuse and/or harassment (many of which
were allegedly to be recurring), perpetrated by nine identified
officers against six female inmates. Accordingly, at this stage
of the litigation, she has adequately plead a widespread
practice or custom sufficient to establish Monell liability. 15
See DiPippo, 2019 WL 1004152, at *9 (denying a motion to
dismiss and noting “a Monell claim, based on a widespread
custom or policy, must be context-specific and cannot be
reduced to an overly simplistic analysis of the number of
instances alleged”); see also Michael, 2010 3237143, at
*4–5 (allowing municipal liability claim to proceed where
the allegations consisted of “multiple incidents over a long,
continuous period of time” that involved “multiple officers”);
Bertuglia v. City of New York, 839 F. Supp. 2d 703, 738
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(S.D.N.Y. 2012) (denying the City's motion to dismiss
where the plaintiff “points to over fifteen cases where City
prosecutors allegedly committed misconduct, and alleges the
existence of many more such cases in the form of unpublished
opinions”); cf. Jones, 691 F.3d at 85 (finding that evidence
of “two instances, or at most three, over a period of several
years ... fell far short of showing a policy, custom, or
usage”); Ayyaz v. City of New York, No. 19-CV-1412, 2021
WL 1225684, at *3 (S.D.N.Y. Mar. 31, 2021) (denying a
Monell claim where plaintiff only alleged “sexual harassment
or discrimination incidents ... involving herself” and two
defendants); White v. City of New York, 206 F. Supp. 3d 920,
938 (S.D.N.Y. 2016) (finding six incidents over five years
insufficient to plausibly allege the existence of a municipal
policy). 16
b. Failure to Train
*18 Jane Doe 1 also argues that Monell liability attaches
because the County “fail[ed] to provide adequate training ...
[to its] subordinates so much so that it amounted to the
County's deliberate indifference.” (Pls’ Opp'n 33.) The Court
disagrees.
Monell liability can exist “ ‘where a local government is faced
with a pattern of misconduct and does nothing, compelling
the conclusion that the local government has acquiesced in
or tacitly authorized its subordinates’ unlawful actions.’ ”
Fraser v. City of New York, No. 20-CV-4926, 2021 WL
1338795, at *10 (S.D.N.Y. Apr. 9, 2021) (quoting Reynolds
v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007)). This requires
a showing that policymaking officials were deliberately
indifferent. Doe v. City of New York, No. 18-CV-670, 2018
WL 3824133, at *8 (E.D.N.Y. Aug. 9, 2018). To make out a
failure to train claim, a plaintiff must
establish not only that the officials’ purported failure to
train occurred under circumstances that could constitute
deliberate indifference, but also ... identify a specific
deficiency in the city's training program and establish that
deficiency is “closely related to the ultimate injury,” such
that it “actually caused” the constitutional deprivation.
Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 129
(2d Cir. 2004) (quoting City of Canton, 489 U.S. at 391).
Deliberate indifference “is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known
or obvious consequence of his action.” Connick v. Thompson,
563 U.S. 51, 61 (2011) (quoting Brown, 520 U.S. at 410).
In other words, “the official made a conscious choice, and
was not merely negligent.” Jones, 691 F.3d at 81 (citations
omitted). “A municipality's culpability for a deprivation of
rights is at its most tenuous where a claim turns on a failure
to train.” Connick, 563 U.S. at 61.
Jane Doe 1's primary argument is that the County was aware
that female prisoners faced a high risk of sexual abuse—based
upon “the prevalent amount of studies that demonstrate sexual
inappropriateness among prisons, the enactment of PREA,”
and Ventillo's 2016 arrest in connection with the death of
a former inmate—but that the County failed to adequately
train its employees to prevent such abuse. (Pls’ Opp'n 36.)
However, the Second Circuit has made clear “that a plaintiff
may not establish municipal liability under a failure-to-train
theory without identify[ing] a specific deficiency in the city's
training program and establish[ing] that [the] deficiency is
closely related to the ultimate injury, such that it actually
caused the constitutional deprivation.” Noonan v. City of New
York, No. 14-CV-4084, 2015 WL 3948836, at *4 (S.D.N.Y.
June 26, 2015) (internal quotation marks omitted) (citing
Amnesty Am., 361 F.3d at 129–30). Jane Doe 1 fails to do so
here, as her assertions that “Individual Defendants’ conduct
and choices could of and would have been different had it
been for appropriate training on ... [PREA],” (SAC ¶ 324),
are insufficient to plausibly allege that any specific training
deficiencies caused her injury, see Williams, 2024 4557444,
at *6 (dismissing a failure to train claim where plaintiff
“does not, for instance, allege deficiencies with procedural
manuals or training guides” or “highlight relevant particular
aspects of [the jail's] training” but instead, “merely accuses
[the county] of failing to properly train and monitor its
staff” (alterations, quotation marks, and citations omitted));
Taranto v. Putnam County, No. 21-CV-2455, 2023 WL
6318280, at *19 (S.D.N.Y. Sept. 28, 2023) (dismissing a
failure to train claim “based on a threadbare description of the
County's training,” which “is the type of conclusory claim
that courts routinely dismiss”); Dumel v. Westchester County,
No. 19-CV-2161, 2021 WL 738365, at *6 (S.D.N.Y. Feb. 25,
2021) (dismissing failure to train claim where “[p]laintiff's
general claim that the County failed to train ... its staff
is a boilerplate assertion that is insufficient, without more,
to state a Monell claim” (internal quotation marks omitted)
(alterations adopted)); Marte v. N.Y.C. Police Dep't, No.
10-CV-3706, 2010 WL 4176696, at *3 (S.D.N.Y. Oct. 12,
2010) (granting a motion to dismiss where plaintiffs did “not
ple[a]d any facts that plausibly allege a specific deficiency
in the training ... program that accounts for deprivation of
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their constitutional rights”). Accordingly, Jane Doe 1 has not
alleged a specific training deficiency sufficient to survive a
motion to dismiss.
*19 Further, even had she alleged a specific deficiency, Jane
Doe 1 has not “establish[ed] that that [training] deficiency
caused the constitutional deprivation,” (i.e., the sexual abuse),
Taranto, 2023 WL 6318280, at *19 (quoting Benn v. City
of New York, No. 18-CV-722, 2021 WL 3193022, at *6
(S.D.N.Y. July 28, 2021)), as Jane Doe 1 offers no allegations
sufficient to suggest that interacting with female inmates
“will frequently confront [corrections officers] with difficult
choices of law that would be alleviated by training, and
no evidence that making the wrong choice will frequently
deprive [the inmates] of their constitutional rights,” Castilla,
2012 WL 5510910, at *6 (denying a failure to train claim
at summary judgment). Put differently, “deciding not to rape
someone is not the kind of difficult choice of the sort that
training ... will make less difficult.” Doe, 2018 WL 3824133,
at *9 (quotation marks omitted) (quoting Walker v. City of
New York, 974 F.2d 293, 297 (2d Cir. 1992)); see Noonan,
2015 WL 3948836, at *4 (“The decision to commit a sexual
assault—a blatantly criminal act—cannot reasonably be seen
as posing the type of ‘difficult choice’ contemplated by the
Second Circuit in Walker.”); Castilla, 2012 WL 5510910, at
*6 (“It beggars common sense to posit that [an individual
defendant] faced a difficult choice as to whether or not to
coerce sex from [plaintiff] and that training would have
alleviated that conundrum.”). 17
Accordingly, Jane Doe 1 has not adequately pled a failure to
train claim.
c. Failure to Supervise
Jane Doe 1 further argues that the County is liable for failing
to properly supervise its employees. (See Pls’ Opp'n 34–37.)
Specifically, Jane Doe 1 alleges multiple deficiencies in the
Jail's supervision of its corrections officers, specifically, that
there was: (1) no actual monitoring of contraband; (2) an
insufficient number of cameras and an insufficient monitoring
of existing cameras; (3) inadequate unannounced supervisory
rounds; (4) no enforcement of any disciplinary policy for
officers who failed to report abuse; (5) widespread fear of
reporting among inmates due to “poor policies”; and (6)
no gender specific practices, dual officer requirements, or
prohibitions on time spent with inmates. (Id. at 36–37.) Jane
Doe 1 also alleges that the risk of officers sexually exploiting
female inmates was obvious, given the “coercive power that
corrections officers wield over incarcerated women” and
that all sexual activity “between incarcerated individuals and
correctional staff” has been criminalized by state law. (SAC
¶ 63.) This claim, too, fails.
“To establish Monell liability premised on a failure to
supervise, a plaintiff must plead that (1) there was a pattern
of allegations of or complaints about, or a pattern of actual,
similar unconstitutional activity, and (2) the municipality
consistently failed to investigate those allegations.” Lopes v.
Westchester County, No. 18-CV-8205, 2020 WL 1445729, at
*5 (S.D.N.Y. Mar. 25, 2020) (citation omitted). To establish
deliberate indifference for a failure to supervise claim, a
plaintiff
must show that “the need for more or better supervision
to protect against constitutional violations was obvious,”
which may be established “through proof of repeated
complaints of civil rights violations ... if the complaints
are followed by no meaningful attempt on the part of the
municipality to investigate or to forestall further incidents.”
Taranto, 2023 WL 6318280, at *20 (quoting Buari v. City
of New York, 530 F. Supp. 3d 356, 400 (S.D.N.Y. 2021)).
“[A]n allegation of numerous claims of [the underlying
constitutional wrong] by itself is insufficient to raise
an inference of deliberate indifference due to failure to
supervise.” Tieman, 2015 WL 1379652, at *21.
*20 As the Second Circuit recognized in Cash v. County of
Erie, 654 F.3d 324 (2d Cir. 2011), given the unique context
of the correctional environment and the power imbalances
therein, the relevant question here is not whether the County
“should have realized the need for ... a prohibition” on sexual
activity between corrections officers and female inmates, but
whether defendants could rely
simply on guards’ awareness of
these criminal laws (and ...
policies implementing them) to deter
sexual exploitation of prisoners, or
whether defendants had reason to
know that more was required to
discharge their affirmative protective
duty, specifically, precluding or at
least monitoring one-on-one contact
between guards and prisoners....
Thus, the deliberate indifference
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concern here is with the adequacy
of defendants’ own actions to
prevent sexual contact between guards
and prisoners consistent with their
affirmative duty to protect prisoners in
their custody.
Id. at 335–36 (emphases added). Because the plaintiff in
Cash had proffered evidence that, prior to the assault at
issue, another detainee had complained of similar misconduct
by prison guards, to which the county only responded by
issuing a one-page memorandum reminding personnel of
the facility's “no-contact” policy, id. at 330–31, the Second
Circuit concluded that a jury could have found that the county
should have taken more proactive steps to counter the abuse,
id. at 336, 339.
Even drawing all inferences in Jane Doe 1's favor, the
allegations in the SAC do not demonstrate the County had
reason to know that more was required of its policies to
prevent the alleged constitutional violations. Although Cash
confirmed “that a single, prior report of sexual abuse at the
relevant facility would have put the policymaker on notice
that ‘mere proscriptions on sexual contact between guards
and prisoners had proved an insufficient deterrent to sexual
exploitation,’ ” Pusepa v. Annucci, No. 17-CV-1765, 2019
WL 690678, at *6 (S.D.N.Y. Feb. 19, 2019) (emphasis in
original) (quoting Cash, 654 F.3d at 336), here, Jane Doe 1
does not allege that there were any reports prior to the abuse
she suffered that would have put the County on notice that
their supervisory policies were insufficient, let alone reports
that the County ignored, see Kovalchik v. City of New York,
No. 09-CV-4546, 2014 WL 4652478, at *4 (S.D.N.Y. Sept.
18, 2014) (dismissing Monell claim and noting that “[c]entral
to [the] conclusion [in Cash] was evidence that prior to
the sexual assault at issue, another detainee complained
of sexual misconduct by prison guards”). Indeed, the only
allegation that the County was on actual notice of a specific
instance of sexual misconduct related to a Jail employee—
prior to its eventual investigations into Taggart and Kezek—
was Ventillo's arrest. (See SAC ¶ 217.) However, Ventillo's
misconduct, unlike the misconduct reported in Cash, occurred
outside the Jail with a former inmate no longer in custody.
(See id.) Given that Ventillo's behavior thus occurred in an
environment removed from the Jail's supervisory systems,
and with someone who was no longer directly subject “to the
inherent power differential between guards and prisoners,”
Cash, 654 F.3d at 337, this single incident is insufficient to put
the County on notice “such that the need for corrective action
or supervision was obvious,” id. (quoting Amnesty Am., 361
F.3d at 128).
*21 Accordingly, because Jane Doe 1 does not allege
facts sufficient to infer the County was on notice that
current policies “had proved an insufficient deterrent to sexual
exploitation,” and was deliberately indifferent to the risk
of perpetuating those policy, her failure to supervise claim
fails. 18 Cash, 654 F.3d at 336; see Williams, 2024 WL
4557444, at *7 (rejecting plaintiff's reliance on Cash where
plaintiff had not pled the county was on notice of prior
instances of sexual abuse); Khapesi v. City of New York, No.
13-CV-4391, 2014 WL 2605342, at *7 (S.D.N.Y. June 10,
2014) (rejecting plaintiff's reliance on Cash to support the
argument that “allowing clergy to be alone and unmonitored
in visits ... constitutes a moral certainty of sexual temptation”
and that “inmates in unmonitored sessions with clergy will
be sexually abused”); see also Taranto, 2023 WL 6318280,
at *20 (noting that plaintiffs’ failure to allege “any prior
lack of investigation into or disciplining of [the individual
defendant], or any other officer for that matter, ... dooms their
claim”); Esperanza v. City of New York, 325 F. Supp. 3d 288,
309 (E.D.N.Y. 2018) (“Plaintiffs do not allege any specific
facts regarding whether the [c]ity investigated or disciplined
[defendant police officer] in response to the complaints of
excessive force.”); Walker v. City of New York, No. 14-
CV-808, 2015 WL 4254026, at *11 (S.D.N.Y. July 14,
2015) (noting that “[e]ven if [the] [p]laintiff had shown an
obvious need for more or better supervision by listing the
numerous lawsuits and complaints, he has not stated any facts
to show that the [c]ity has acted with deliberate indifference”
where “he does not specifically claim that the [c]ity failed to
investigate the list of lawsuits”). 19
d. Failure to Intervene
The County also seeks to dismiss Jane Doe 1's claims for
failure to intervene and reckless disregard, insofar as they are
asserted against the County, on the grounds that she fails to
state a claim. (See County's Mem. 33–35.) The Court agrees.
Jane Doe 1 does not respond to the County's arguments,
(see generally Pls’ Opp'n), which, by itself, constitutes a
waiver of the failure to intervene claim, see Johnson v. AFNI,
Inc., No. 22-CV-2930, 2023 WL 2970919, at *1 (S.D.N.Y.
Apr. 15, 2023) (“[T]he plaintiff's failure to respond to the
defendants’ motions to dismiss is enough on its own to
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justify dismissal of the complaint, because [t]he failure to
oppose a motion to dismiss a claim is deemed abandonment
of the claim.” (internal quotation marks omitted)); see also
Johnson v. City of New York, No. 15-CV-8195, 2017 WL
2312924, at *17 (S.D.N.Y. May 26, 2017) (collecting cases);
Youmans v. Schriro, No. 12-CV-3690, 2013 WL 6284422,
at *5 (S.D.N.Y. Dec. 3, 2013) (“Plaintiff's failure to respond
to contentions raised in a motion to dismiss ... constitutes an
abandonment of those claims.”).
*22 Moreover, Jane Doe 1 has failed to adequately plead
a failure to intervene claim. “A law enforcement officer has
an affirmative duty to intercede on the behalf of a citizen
whose constitutional rights are being violated in his presence
by other officers.” Harris v. City of Newburgh, No. 16-
CV-2731, 2017 WL 4334141, at *9 (S.D.N.Y. Sept. 27, 2017)
(quoting O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988));
McClean v. County of Westchester, No. 17-CV-4492, 2018
WL 6329420, at *19 (S.D.N.Y. Dec. 3, 2018) (same), aff'd sub
nom. McClean v. City of Mount Vernon, 776 F. App'x 725 (2d
Cir. 2019). To establish liability under this theory, a plaintiff
must show that: “(1) the officer had a realistic opportunity to
intervene and prevent the harm; (2) a reasonable person in the
officer's position would know that the victim's constitutional
rights were being violated; and (3) the officer does not take
reasonable steps to intervene.” McClean, 2018 WL 632942,
at *19 (citations omitted).
Here, Jane Doe 1 only alleges that the County and the
Individual Defendants “had a reasonable opportunity to
prevent the violations of [her] Constitutional rights but failed
to intervene.” (SAC ¶ 378.) She does not point to any
specific officer that had such an opportunity to prevent her
abuse at the hands of Taggart and Kezek, nor identify any
specific individual that failed to do so. Such conclusory
allegations do not suffice to state a failure to intervene
claim and accordingly, the claim must be dismissed. See
Case v. City of New York, 233 F. Supp. 3d 372, 402
(S.D.N.Y. 2017) (dismissing a failure to intervene claim
where the “broad allegations” in the complaint “fail to
raise a reasonable inference that [any defendant] had a
realistic opportunity to prevent” the constitutional violations
(internal quotation marks omitted)); Bouche v. City of Mount
Vernon, No. 11-CV-5246, 2012 WL 987592, at *7 (S.D.N.Y.
Mar. 23, 2012) (dismissing failure to intervene claim where
“[plaintiff] only refers to the defendants in the collective,
never identifying which defendants were responsible for
specific actions” and “failed to state who or how defendants
failed to intervene”). 20
~*~*~*~
In sum, while Jane Doe 1 has not plausibly alleged Monell
liability based upon a failure to train, supervise, or intervene,
she has plausibly alleged a widespread practice or custom.
Thus, the County's Motion is denied as to her Monell
claims. 21
4. State Law Claims 22
a. Sexual Misconduct Claims (Counts Seven Through Ten)
*23 Jane Doe 1 also alleges four causes of action arising
under state law in relation to the sexual misconduct (i.e.,
common law assault and battery and violations of New York
Penal Law §§ 130.65, 130.60, and 130.55). (See SAC ¶¶ 381–
415.) The County argues these claims should be dismissed
because sexual assault is outside the scope of employment.
(County's Mem. 35–36.) The Court agrees.
“Under the doctrine of respondeat superior, an employer may
be vicariously liable for the tortious acts of its employees
only if those acts were committed in furtherance of the
employer's business and within the scope of employment.”
Doe, 2018 WL 3824133, at *6 (quoting N.X. v. Cabrini Med.
Ctr., 765 N.E.2d 844, 847 (N.Y. 2002)); Noonan, 2015 WL
3948836, at *7 (“New York courts consistently have held that
sexual misconduct and related tortious behavior arise from
personal motives and do not further an employer's business,
even when committed within the employment context.”)
(quoting Adorno v. Corr. Servs. Corp., 312 F.Supp.2d 505,
517 (S.D.N.Y. 2004)). Sexual assault and harassment “is
not in furtherance of [an employer's] business and is a
clear departure from the scope of employment, having
been committed for wholly personal motives.” Doe, 2018
WL 3824133, at *6. Accordingly, the County cannot be
held vicariously liable for the abuse Taggart and Kezek
allegedly committed against Doe, even though such abuse
was committed in their place of employment. See id.
(dismissing state law claims for sexual assault and battery as
far as they were asserted against a municipality); Noonan,
2015 WL 3948836, at *7 (S.D.N.Y. June 27, 2015) (“Because
[p]laintiff's alleged injuries stem from the sexual assault by
[the defendant officer], and because New York courts have
consistently held that sexually motivated conduct falls outside
the scope of employment, [p]laintiff fails to state a claim
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based on a respondeat superior theory of liability.” (italics
omitted)).
Accordingly, Jane Doe 1's state law claims for assault and
battery, and violations of New York Penal Law §§ 130.65,
130.60, and 130.55 are dismissed insofar as they are asserted
against the County.
b. Emotional Distress Claims (Counts Eleven and Twelve)
Jane Doe 1 also asserts claims for Intentional Infliction
of Emotional Distress (“IIED”) and Negligent Infliction of
Emotional Distress (“NIED”). (See SAC ¶¶ 416–29.) These
claims, too, fail against the County.
First, as to her claim of IIED, “[i]t is well settled that
public policy bars claims sounding in intentional infliction of
emotional distress against a governmental entity.” Noonan,
2015 WL 3948836, at *7 (quoting Lauer v. City of New
York, 240 A.D.2d 543, 544 (N.Y. App. Div. 1997)); see
also Doe, 2018 WL 3824133, at *10 (same); J.H. v.
Bratton, 248 F. Supp. 3d 401, 416 n.10 (E.D.N.Y. 2017)
(same). Accordingly, this claim may only proceed against the
Individual Defendants and is barred against the County.
Second, as the County argues, Jane Doe 1's NIED claim is
precluded by the Prison Litigation Reform Act (“PLRA”),
which states that “[n]o Federal civil action may be brought
by a prisoner ... for mental or emotional injury suffered while
in custody without a prior showing of physical injury or the
commission of a sexual act (as defined in section 2246 of Title
18).” 42 U.S.C. § 1997e(e); see Cano v. City of New York, 44
F. Supp. 3d 324, 331 (E.D.N.Y. 2014) (same). “Sexual act,”
as defined, requires various forms of physical contact with
genitalia. 18 U.S.C. § 2246(2)(A)–(D). The conduct Jane Doe
1 alleges was committed by Taggart and Kezek—although
reprehensible—did not involve any such physical contact.
(See SAC ¶¶ 160–87.) Accordingly, Jane Doe 1 cannot sustain
a claim for NIED based upon the conduct alleged in the SAC.
Cf. Watson v. Carver-Jordan, No. 11-CV-2415, 2011 WL
6202899, at *4 (S.D.N.Y. Dec. 13, 2011) (noting “[u]nder the
[PLRA], a prisoner may not recover for mental or emotional
injuries unless he has shown physical injury,” and dismissing
a claim because “[plaintiff] will not be able to make such a
showing” (citing Jenkins v. Haubert, 179 F.3d 19, 28–29 (2d
Cir. 1999))).
*24 Accordingly, Count Eleven must be dismissed as
against the County and Count Twelve must be dismissed as
against all Defendants.
c. Negligent Security (Count Thirteen)
Next, Jane Doe 1 alleges that the County is liable for her
injuries by negligently failing to provide her with proper
security. (See SAC ¶¶ 430–36.) This claim also fails.
“Under New York law, a tort plaintiff seeking to prove a
defendant's negligence must show: ‘(1) the existence of a duty
on defendant's part as to plaintiff; (2) a breach of this duty;
and (3) injury to the plaintiff as a result thereof.’ ” Levin v.
Sarah Lawrence Coll., 747 F. Supp. 3d 645, 675 (S.D.N.Y.
2024) (quoting Union Mut. Fire Ins. Co. v. Ace Caribbean
Mkt., 64 F.4th 441, 445 (2d Cir. 2023)). As an initial matter,
Jane Doe 1 has abandoned this claim by failing to respond
to the County's arguments. Doe, 2018 WL 3824133, at
*6 n.4 (deeming a claim abandoned where plaintiffs’ “only
response ... comes in a section heading” while the “body
text of th[at] section” addresses a different issue”); see also
Johnson, 2023 WL 2970919, at *1 (“[T]he failure to oppose
a motion to dismiss a claim is deemed abandonment of the
claim.”). Moreover, Jane Doe 1's allegations that the County
“breached” its duty of care to her “by failing to provide
[her] with proper, adequate, or sufficient security,” (SAC ¶
432), are, without more, insufficient to make out a negligence
claim, see Doe, 2018 WL 3824133, at *7 (rejecting a
negligence claim where plaintiff offered only “conclusory
statements”); cf. Hall v. City of White Plains, 185 F.Supp.2d
293, 304 (S.D.N.Y. 2002) (dismissing state law negligence
claim based on “nothing more than conclusory allegations”).
d. Negligent Hiring, Supervision,
Training, and Retention (Count Fourteen)
Finally, Jane Doe 1 alleges that the County is liable for her
injuries under a failure to supervise, retain, or train theory
grounded in New York state law. (See SAC ¶¶ 437–50.) This
claim also fails.
Under New York law, the tort of negligent hiring, retention,
or supervision “applies equally to municipalities and private
employers.” Doe, 2018 WL 3824133, at *7 (quoting
Gonzalez v. City of New York, 17 N.Y.S.3d 12, 15 (N.Y. App.
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Div. 2015)). To state a claim under this theory, a plaintiff must
show:
(1) that the tort-feasor and the
defendant were in an employee-
employer relationship; (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; and
(3) that the tort was committed on
the employer's premises or with the
employer's chattels.
Noonan, 2015 WL 3948836, at *8 (quoting Ehrens v.
Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004)); see Doe,
2018 WL 3824133, at *7 (same). With respect to the failure
to train claim, “a cause of action sounding in negligence
is legally sustainable against a city when the injured party
demonstrates that he was injured due to the negligent training
and supervision of a law enforcement officer.” Noonan, 2015
WL 3948836, at *8 (quoting Barr v. Albany County, 406
N.E.2d 481, 485 (N.Y. 1980)). “To prevail on a state law
failure to train claim, a plaintiff must set forth more than
bare, conclusory allegations of a deficiency in training.” Id.;
see also Hall, 185 F. Supp. 2d at 304 (dismissing state law
failure to train claim based on “nothing more than conclusory
allegations”).
*25 Here, Jane Doe 1 has failed to plausibly allege that the
County was negligent under any of these theories because
she has not alleged that the County knew (or should have
known) of Taggart and Kezek's specific propensity to sexually
harass female inmates. Although Jane Doe 1 alleges a pattern
of widespread behavior at the Jail, she does not allege that the
County was on notice that Taggart and Kezek, specifically,
posed a danger to herself or other inmates. Instead, she only
alleges that the County “knew or had reason to know that
Individual Defendants engaged in inappropriate conduct with
female inmates.” (See SAC ¶ 440; see id. ¶ 444 (alleging the
County “knew of the individual defendant[s’] propensity to
commit tortious acts”).) “These are the type of conclusory
statements that [the Court is] not bound to accept as true
on a motion to dismiss and that do not suffice to state
a plausible claim for relief.” Doe, 2018 WL 3824133, at
*7 (internal quotation marks and citations omitted); see
id. (dismissing a negligence claim as plaintiff “provides
no specific allegations of prior sexual misconduct by [the
individual Defendants] that would have put ... the [c]ity on
notice that either detective posed a danger”); Noonan, 2015
WL 3948836, at *8 (dismissing a negligence claim where
“[p]laintiff pleads no facts tending to show that the City knew
or should have known of [the defendant officer's] alleged
propensity to commit sexual assault or related wrongdoing”).
And with respect to the negligent training claim, because,
“as discussed with respect to [Jane Doe 1's] federal failure
to train claim, [Jane Doe 1] has not identified any deficiency
in police training nor pleaded facts sufficient to connect such
a deficiency to her injuries,” that claim must also fail. See
Noonan, 2015 WL 3948836, at *8 (dismissing a state law
claim for negligent training); see also Rodriguez v. City of
New York, 649 F. Supp. 2d 301, 307–08 (S.D.N.Y. 2009)
(finding that conclusory allegations insufficient to sustain a §
1983 failure to train claim also “doom the plaintiff's [parallel]
state law claim for failure to train”).
III. Conclusion
For the foregoing reasons, the County's Motion to Dismiss is
denied as to Jane Doe 1's Monell claims (Counts Three, Five,
and Six) and is granted as to all other claims, insofar as such
claims are asserted against the County.
Because this is the second adjudication on the merits
of Plaintiffs’ direct claims under the Constitution against
the County and the Individual Defendants (Counts One,
Two, and Four), the dismissal is with prejudice. See
Chavez v. Gutwein, No. 20-CV-342, 2022 WL 1487781,
at *7 (S.D.N.Y. May 11, 2022) (dismissing with prejudice
previously adjudicated claims as the plaintiff was not entitled
to “a third go-around” (quoting Denny v. Barber, 576 F.2d
465, 471 (2d Cir. 1978))); Melvin v. County of Westchester,
No. 14-CV-2995, 2016 WL 1254394, at *24 n.19 (S.D.N.Y.
Mar. 29, 2016) (granting motion to dismiss with prejudice
where “[the] [p]laintiff has already had two bites at the apple,
and they have proven fruitless” (alteration and quotation
marks omitted)).
Because Jane Doe 2 through 6's federal claims against
the County and the Individual Defendants are time barred
(Counts Three, Five, and Six), those claims are also dismissed
with prejudice. See Perkins v. Perez, No. 17-CV-1341, 2020
WL 248686, at *8 (S.D.N.Y. Jan. 16, 2020) (noting time-
barred claims “were properly dismissed with prejudice”). The
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Court declines to exercise supplemental jurisdiction over Jane
Doe 2 through 6's state law claims.
Because this is the first adjudication on the merits of Jane
Doe 1's state claims (Counts Seven through Fourteen), the
dismissal is without prejudice. If Jane Doe 1 wishes to file
an amended complaint alleging additional facts and otherwise
addressing the deficiencies identified above, Jane Doe 1
must do so within thirty days of the date of this Opinion
& Order. See Tyson v. Town of Ramapo, No. 17-CV-4990,
2019 WL 1331913, at *19 (S.D.N.Y. Mar. 25, 2019) (“The
Court will afford [p]laintiff an opportunity to amend if, after
reviewing this Order and Opinion and the law therein, [s]he
still believes that [s]he can plausibly state claims against
Defendants.” (alteration adopted) (citation omitted)). There
will be no extensions. Jane Doe 1 is further advised that an
amended complaint will completely replace, not supplement,
the SAC. Any amended complaint must therefore contain all
of the claims, defendants, and factual allegations that Jane
Doe 1 wishes the Court to consider. If Jane Doe 1 fails to
timely file an amended complaint, the dismissed claims may
be dismissed with prejudice.
The Court will hold a telephonic status conference on May 7,
2025, at 10:30 AM.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 945873
Footnotes
1 None of the Individual Defendants have yet appeared in this Action. (See generally Dkt.) The Court notes
that although Plaintiffs occasionally spell Ventillo as “Vintello” in the SAC, (e.g., SAC ¶¶ 214–15), the Court
will refer to him solely as “Ventillo” to avoid confusion.
2 Unless otherwise noted, the Court cites to the ECF-stamped page number in the upper-right corner of each
page in cites from the record.
3 In its Declaration and on the docket, the County appears to have mislabeled Taggart's guilty plea and
allocution transcript as Exhibit L, when the transcript is, in fact, Exhibit O. Conversely, Kezek's guilty plea
and allocution transcript was mislabeled as Exhibit O when it is actually Exhibit L.
4 Although the County fails to offer any reason why the Court should consider the Santiago Complaint, (see
Reply Mem. of Law in Supp. of Mot. to Dismiss 9 (“Reply”) (Dkt. No. 102)), the Court nevertheless will consider
it for the limited purpose of its existence based upon the same reasons discussed above.
5 Jane Doe 1 alleges it was “common knowledge to everyone” that her cell was in a “dead zone.” (Id. ¶ 165;
see also id. ¶ 162.)
6 The SAC is unclear on whether John Doe 2 participated in all three occasions or only one, or whether John
Doe 2 is, in fact, Ventillo. (See id. ¶¶ 214–16.)
7 Jane Doe 2 alleges that, upon information and belief, Ventillo was arrested in 2016 in connection with the
death of another female inmate who overdosed on the heroin that Ventillo provided her in exchange for sexual
favors. (Id. ¶ 217; Weissman Decl. Ex. H.)
8 Jane Doe 2 was later a complaining victim in Jane Doe 1's criminal cases against Kezek. (Id. ¶ 224.)
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9 Jane Doe 5 alleges that John Doe 1 was also known as “Ken Doll.” (Id.) However, elsewhere in the SAC,
Plaintiffs allege that “Ken Doll” was John Doe 3, not John Doe 1. (See id. ¶¶ 43, 207.) Given the apparent
confusion, the Court will only refer to the respective John Does by their numbers, not their nicknames.
Jane Doe 5 also alleges that Farrison “engaged in sexually inappropriate behavior with her,” but provides no
further details about his specific behavior. (Id. ¶ 261.)
10 Plaintiffs argue, without more, that these claims are “properly plead” because they alleged violations of their
due process rights. (Pls’ Opp'n 32.) Plaintiffs again miss the point. It is not enough to allege a constitutional
violation in an action seeking only damages; one must also bring the allegations in a suitable vehicle—
i.e., under § 1983. See Runge, 2000 WL 726502, at *2 (citing Monroe v. Pape, 365 U.S. 167, 172 (1961)).
Plaintiffs were given ample notice and opportunity to cure this deficiency and have failed to do so here.
11 Because the SAC does not incorporate Plaintiffs’ Fourth Amendment challenge into their § 1983 claim, that
count is dismissed for the reasons stated above.
12 Indeed, the opposite inference can be drawn at least as to Jane Doe 5, who, in August 26, 2020, sued a
correctional officer at another facility for sexual abuse. (See Reply Weissman Reply Decl. Ex. A, ¶¶ 89–
102.) Although this says nothing about Jane Doe 5's fear of retaliation from the officers in this Action, it does
suggest that she was able to file suit as of that point.
13 Moreover, even if the ASA did revive §§ 1983, 1985, and 1986 claims, it would not be able to revive the
claims of Jane Does 5 and 6, whose claims cannot be revived even solely under state law. “For a claim to be
revived pursuant to the ASA, a defendant's underlying conduct must ‘constitute a sexual offense as defined
in article one hundred thirty of the penal law.’ ” Johnson, 2023 WL 6393466, at *2 (quoting N.Y. C.P.L.R.
214-j). The SAC relies upon New York Penal Law §§ 130.65, 130.60, and 130.55—sexual abuse in the first,
second, and third degrees, respectively. (See SAC ¶¶ 403, 409, 414.) As the County points out, each of
these offenses requires that the perpetrator subject another person to “sexual contact,” which is defined as
“any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of
either party” and “includes the touching of the actor by the victim, as well as the touching of the victim by
the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any
part of the victim, clothed or unclothed.” N.Y. Penal L. § 130.00(3). Thus, claims that do not include some
type of physical touching—such as those alleged by Jane Does 5 and 6—are not revived by the ASA. See
Johnson, 2023 WL 6393466, at *2–3 (concluding that claims that included no allegations of “forcible touching”
as required by the relevant Penal Law could not be revived); Leib-Podry v. Tobias, No. 22-CV-8614, 2024 WL
1421152, at *8–9 (S.D.N.Y. Feb. 13, 2024) (finding that the ASA did not apply because the claim “d[id] not
allege anything that would constitute a sexual offense under NY CPL [§] 130”), report and recommendation
adopted, 2024 WL 1134597 (S.D.N.Y. Mar. 15, 2024), appeal dismissed, No. 24-1248 (2d Cir. July 21, 2024).
Although Plaintiffs argue that the County “fails to sufficiently demonstrate that touching under the direction
and coercion ... of one[’s] self and the conduct alleged is insufficient” to be revived under the ASA, Plaintiffs
offer no support detailing why such conduct would be sufficient to overcome the Penal Law's clear statutory
language. (See Pls’ Opp'n 44.)
14 Although all claims other than those asserted by Jane Doe 1 are time barred, (see supra Section II.B.2), given
that Jane Doe 1 “has alleged both the existence of an ongoing policy of [harassment and abuse] and some
non-time-barred acts taken in furtherance of that policy,” the Court will consider the time-barred acts alleged
by the other Plaintiffs as context when analyzing the merits of Jane Doe 1's Monell claim. See Ciotti v. City
of New York, No. 23-CV-10279, 2025 WL 308022, at *20 (S.D.N.Y. Jan. 27, 2025) (citing Harris v. City of
New York, 186 F.3d 243, 250 (2d Cir. 1999)); Murray v. New York City, No. 19-CV-1959, 2019 WL 4053951,
at *3 n.2 (S.D.N.Y. Aug. 28, 2019) (noting, in a § 1983 action, that “untimely claims of sexual harassment
may be introduced as evidence in a case involving timely claims”); cf. Siclari v. N.Y.C. Dep't of Educ., No.
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19-CV-7611, 2020 WL 7028870, at *7 (S.D.N.Y. Nov. 30, 2020) (noting, while evaluating an ADEA claim,
that “untimely allegations may provide background evidence in support of a timely claim” (internal quotation
marks omitted)); Allen v. New York City Dep't of Env't Prot., 51 F. Supp. 3d 504, 510 n.2 (S.D.N.Y. 2014)
(noting, in the context of a Title VII action, that the untimely “adverse employment decisions [p]laintiff asserts
may provide context and support for the timely claims that [p]laintiff asserts”).
15 The Court notes that, at this stage, Jane Doe 1 is not required to “identify a specific policymaker who
promulgated a policy or custom or an express rule or regulation,” as “it is enough” at this “context-specific”
stage “to plead that a city had a general unconstitutional policy,” as a “plaintiff has “no realistic way to
learn about a municipality's training programs without discovery.” DiPippo, 2019 WL 1004152, at *9 (internal
quotation marks omitted); see also Michael, 2010 3237143, at *4 (noting that “[p]laintiff's Complaint [does
not] identify a policymaker who promulgated such a policy or custom through his acts[,] [b]ut, at least at [the
motion to dismiss] stage, the law does not require him to do so” (citing Patterson v. County of Oneida, New
York, 375 F.3d 206, 226 (2d Cir. 2004))).
16 The County argues that, because Taggart and Kezek were disciplined and prosecuted once caught, “[s]uch
conduct is incompatible with a theory that the County was aware of a widespread pattern of sexual
misconduct by corrections officers and failed to act.” (County's Mem. 29 (citing Op. and Order at 21).) The
County is correct that it acted to correct Taggart and Kezek's abuse once it became aware of those officers’
actions in 2019, (SAC ¶¶ 184, 189, 193), and that the Court found that those allegations in the FAC were
sufficient to defeat Jane Doe 1's Monell claim, (Op. and Order at 21). However, the County overlooks that
the SAC is not restricted only to Taggart and Kezek's behavior vis-à-vis Jane Doe 1. Instead, the SAC is
replete with allegations of blatant and pervasive abuse and harassment committed by Kezek against other
female inmates, as well as such abuse committed by multiple other Individual Defendants for years prior
to the County's intervention as to Taggart and Kezek. (See supra Section I.B.4–9.) In other words, that
the County eventually disciplined two of the nine officers involved in the alleged conduct, after the abuse
was committed—and only did so for their behavior as to one victim—does not, at this stage, undermine the
inference that the County constructively acquiesced to the pattern of sexual abuse. See Castilla v. City of
New York, No. 09-CV-5446, 2012 WL 3871517, at *5 (S.D.N.Y. Sept. 6, 2012) (noting, in denying a motion to
dismiss a Monell claim, that “the issue of whether the City eventually investigates and disciplines employees
accused of misconduct is distinct from whether the City was deliberately indifferent to the violation of citizens’
constitutional rights in the first place”).
17 Jane Doe 1 also attempts to make out a failure to train theory based on the Jail's alleged failure to train
the inmates on how to report sexual abuse. (See SAC ¶¶ 335–42.) However, Jane Doe 1 proffers no legal
argument and cites no authority for why the Court should accept this theory of Monell liability based on failure
to train a third party, and as such, the Court will not consider it here.
18 Moreover, to the extent Jane Doe 1 argues that the County demonstrated deliberate indifference by not
implementing a policy “requir[ing] segregation of correctional officers from opposite-sex inmates,” (SAC ¶
343), accepting this argument would functionally “create a per se rule ... that corrections officers and prisoners
of the opposite sex could never be left in unmonitored one-on-one interactions—a rule the Second Circuit
explicitly rejected in Cash,” Williams, 2024 WL 4557444, at *7 (citing Cash, 654 F.3d at 336 (taking “no
exception to the district court's [ ] observation” that “a policy permitting unmonitored one-on-one interactions
between a guard and a prisoner of different sexes was not itself unconstitutional”)). Although the Court notes
the obvious wisdom behind enacting such a policy, the Court declines to create a rule requiring it.
19 The Court notes that, superficially, there may seem to be tension between this conclusion and the Court's
conclusion regarding Jane Doe 1's widespread practice theory. However, “[w]hile particular facts supporting
each claim are certainly related, the theories are distinct.” Rutherford, 698 F. Supp. 3d at 617 (denying
summary judgment on a failure to train, investigate, and supervise theory of liability but granting summary
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judgment on a widespread practice theory); Buari, 530 F. Supp. 3d at 408 (same, on a motion to dismiss).
Moreover, unlike a widespread practice claim, a failure to train or supervise claim has “a heavy burden of proof
to show that the municipality's response was so patently inadequate to the task as to amount to deliberate
indifference.” Rutherford, 698 F. Supp. 3d at 616 (quotation marks omitted) (quoting Floyd v. City of New
York, 813 F. Supp. 2d 417, 441 (S.D.N.Y. 2011)); see also DiPippo, 2019 WL 1004152, at *9 (“[T]he pre-
discovery pleading standard for a custom or practice is not a high bar.”).
20 Jane Doe 1 also asserts a Monell theory for reckless disregard (Count Five). (See SAC ¶¶ 368–76.) However,
in her Opposition, she fails to respond to the County's arguments on the deficiencies of this claim, thus
abandoning the claim. See, e.g., Johnson, 2023 WL 2970919, at *1. Moreover, in the passing mentions
of this claim in her Opposition, she expressly links it to her failure to train and supervise claims, which, as
discussed above, both fail. (See Pls’ Opp'n 4 n2. (“It should be noted that the link to reckless disregard under
Monell liability is through [the County's] negligent behavior, including but not limited to [their] failure to train
and supervise.”); id. at 6 (“The lack of supervision and intervention of this facility raised to the level of gross
negligence [and] reckless disregard .... (emphasis removed)).) Accordingly, the Court also dismisses this
claim.
21 Because the County offers no argument why Jane Doe 1's §§ 1985 and 1986 claims fail independent of her
§ 1983 claims, the Court will not dismiss those claims. See Myun-Uk Choi v. Tower Rsch. Cap., LLC, 890
F.3d 60, 69 n.5 (2d Cir. 2018) (“Defendants did not raise this argument in their motion to dismiss the amended
complaint and it is therefore waived.”); In re OSG Sec. Litig., 12 F. Supp. 3d 622, 634 n.93(S.D.N.Y. 2014)
(noting arguments not made in memorandum of law in support of motion to dismiss are waived).
However, as the Court noted in its prior Opinion, to the extent Jane Doe 1 asserts a Monell claim based on
alleged violations of her Eighth Amendment rights, that claim fails because she was a pre-trial detainee when
the conduct at issue occurred. (See Op. & Order 17–18 n. 11 (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d
Cir. 2017) (“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.”), and Iqbal v. Hasty, 490 F.3d 143, 168 (2d. Cir. 2007) (“Pretrial detainees have not
been convicted of a crime and thus may not be punished in any manner—neither cruelly and unusually nor
otherwise.” (internal quotation marks omitted)), rev'd on other grounds 556 U.S. 662 (2009)); see also County
Mem. 25 (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).) Jane Doe 1 offers no contrary
support nor attempts to explain why she did not correct this deficiency when amending the Complaint. Indeed,
Jane Doe 1 explicitly alleges that she “was a pre-trial detainee when the sexual assaults occurred.” (SAC
¶ 281.)
22 In light of the Court's dismissal of Jane Does 2 through 6's federal claims, the Court declines to exercise
supplemental jurisdiction over their remaining state law claims. See 28 U.S.C. § 1367(c)(3) (“[D]istrict courts
may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims
over which it has original jurisdiction ....”); One Commc'ns Corp. v. JP Morgan SBIC LLC, 381 F. App'x 75,
82 (2d Cir. 2010) (summary order) (“If all of a plaintiff's federal claims are dismissed, a district court is well
within its discretion to decline to assert supplemental jurisdiction over any state law claims ....”); Young v.
Suffolk County, 922 F. Supp. 2d 368, 398 (E.D.N.Y. 2013) (declining to exercise supplemental jurisdiction
over state-law counterclaim after dismissing all federal claims).
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Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
© 2026 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
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of keys that were identified as keys to plaintiff's residence.
Plaintiff claims that “[a]t this point Sr. P.O. Rigby called the
Syracuse Police Department.” 4 (AC at 2). Plaintiff claims
that defendant Rigby spoke to Sergeant A. Llukaci, a detective
with the Syracuse Police Department, and Sergeant Llukaci
told defendants Detectives William Summers and D.P. Proud
to go to the Marcellus Street address. Plaintiff states that
upon his arrival, defendant Proud stated that he spoke to Ms.
Rodriguez, who told defendant Proud that Mr. Leslie kept
his money at his mother's apartment “although there is no
affidavit on file to attest to that assertion by the [sic] Det.
Proud.”
Defendant Summers obtained a warrant for the search of
plaintiff's home at 112 Fordham Rd. in Syracuse, New York.
(AC Ex. CM/ECF p.16-17). Plaintiff claims that she was
not home when the “Syracuse Police” and defendant Saben
arrived at her home to execute the search warrant. 5 (AC
at 2). The officers entered with the key that was found at
Mr. Leslie's Marcellus Street home. 6 (Id.) Plaintiff arrived
shortly thereafter, but was denied entrance to her home
while the search was being executed. (Id.) Plaintiff states
that the officers searched plaintiff's apartment and recovered
$40,000.00 in cash from a safe that was located in plaintiff's
bedroom closet. Plaintiff alleges that the officers confiscated
the money.
Plaintiff claims that the officers did not have probable cause
to obtain the warrant to search her home because there was
no proof that Ms. Rodriguez ever made the statement that
Mr. Leslie kept his money at his mother's house, and thus,
the warrant was obtained improperly. Plaintiff claims that her
Fourth Amendment rights were violated as the result of the
search of her apartment. Plaintiff then claims that after the
seizure of her $40,000.00, she informed defendant Assistant
District Attorney (“ADA”) Sean Chase that the money did
not belong to Mr. Leslie, and that the money was plaintiff's
savings which she would be using to purchase a new home.
(AC at 5). Plaintiff claims that ADA Chase told her that his
“office would return the illegally seized money.” (Id.)
Plaintiff states that, shortly after the incident, she also filed
a “complaint” form to complain about the police “conduct
in Plaintiff's home,” and to request the “immediate return of
the Plaintiff's money.” (Id.) Plaintiff states that the District
Attorney's Office responded to the “property release” request
only after plaintiff obtained the intervention of “a 3 rd party
(Feldman, Kramer & Monaco, P.C.)” (Id.) Plaintiff claims that
the property release form showed that the plaintiff's “legally
possessed currency was improperly forfeited along with the
monies ($31,925.00) seized at 514 Marcellus St.” (AC at 6).
Plaintiff claims that ADA Chase told plaintiff on three
separate occasions that her money was going to be returned,
but that this was a “stalling tactic” by the District Attorney's
Office. ADA Chase told plaintiff that he was waiting to
hear from Mr. Leslie's attorney “in hopes of persuading [Mr.
Leslie] to sign a forfeiture document that later became clear
to the Plaintiff that the forfeiture included what was seized at
both residences....” (AC at 6). The forfeiture document states
that Mr. Leslie stipulated to the forfeiture of $67,269.00, and
that he was not aware of any other person who claimed to
be the owner of the property. 7 (AC at 6). Plaintiff alleges
that the $40,000.00 was not Mr. Leslie's to forfeit. Plaintiff
also alleges that the amount on the stipulation of forfeiture
that Mr. Leslie signed does not account for the entire amount
seized, even though plaintiff was not given any of her money
back. Plaintiff claims that the actual amount seized, including
her $40,000.00 was $71,925.00, and that there is $4,656.00
missing from the total. (Id.) Plaintiff also claims that the
individuals who seized her money did not have the “warrant
in hand” and never gave her a receipt for the money that they
took. (AC at 7). Plaintiff states that the money taken from her
home was not specifically mentioned in any of the paperwork
that was subsequently provided to plaintiff as the result of her
inquiries. (AC at 8).
*3 Plaintiff states that she spoke to then-Chief of the
Syracuse Police, Frank Fowler, who told plaintiff that her
concerns would be “thoroughly investigated,” but then did not
provide plaintiff a report of the investigation and told plaintiff
to file a Freedom of Information request if she wished to see
the report. (Id.) Plaintiff has attached correspondence that she
received from former Chief Fowler, stating that the report had
been forwarded to him and that plaintiff could “be assured
that [Fowler would] take the proper administrative action in
this case.” (AC Ex. CM/ECF p.19).
Although the AC contains a “Second Cause of Action,”
plaintiff essentially repeats that her Fourth Amendment rights
were violated by the defendants' actions in conjunction with
the search of her home and the seizure of her money. (AC
at 8-9). Plaintiff states that she has not been afforded any
documentation that would establish probable cause to search
her home. (AC at 9). Plaintiff states that there is no connection
between her and Mr. Leslie's “illegal activities,” and there
was nothing “illegal” found in plaintiff's apartment. (Id.) In
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applying a very liberal reading of the AC, 8 the court could
interpret plaintiff's second cause of action as a Fourteenth
Amendment Due Process claim, asserting that the defendants
deprived her of her money without due process of law when
they did not return the money after she made various inquiries
and did not allow her to challenge the ownership of the money
after her son signed the waiver and stipulation.
As stated above, the plaintiff has attached various documents
as exhibits to the AC, including (1) the search warrant
issued by City Court Judge Kate Rosenthal for plaintiff's
apartment at 112 Fordham Rd. (AC Ex. CM/ECF pp.16-17);
(2) Plaintiff's Civilian Complaint Report (AC Ex. CM/ECF
p.18); a letter to plaintiff from former Chief Fowler (AC
Ex. CM/ECF p.19); a letter to plaintiff from David L.
Chaplin, II, Esq. on behalf of the Citizen Review Board
dated December 2, 2016 (AC Ex. CM/ECF p. 20); a letter
to plaintiff from Kimberly M. Osbeck, a paralegal for the
Onondaga County District Attorney's Office, dated March
6, 2018 (AC Ex. CM/ECF p. 21); a letter to plaintiff from
the Public Integrity Bureau of the New York State Attorney
General's Office (AC Ex. CM/ECF p. 22); an “Application
for Release of Property,” signed by plaintiff on November
2, 2017, together with the unsigned refusal to release
the property because the “money [was] forfeited during
[a] criminal prosecution.” (AC Ex. CM/ECF pp.23-24);
the “Waiver and Stipulation,” signed by Mr. Leslie on
February 28, 2017, relinquishing any rights to the seized
money (AC Ex. CM/ECF pp.25-26); “CNYLEADS Narrative
Supplement[s]” numbers 1-3, including an “offense page”
and a “property supplement,” detailing all the property taken
from the Marcellus St. address. (AC Ex. CM/ECF pp.27-32).
Plaintiff seeks the return of the $40,000.00 that she claims
was taken from her in August of 2016, compensatory damages
for the “Syracuse Police Department trashing Plaintiff's two
bedrooms at 112 Fordham Rd.,” damages for “five hours”
worth of lost income 9 on the day of the search, unspecified
lost income for the day that she had to appear in court, 10
and “punitive” damages for emotional pain and suffering,
including the damages for the delay in purchasing her dream
home. (Id.)
III. Eleventh Amendment/New York State Division of
Parole
A. Legal Standards
*4 The Eleventh Amendment provides that states have
immunity against suits in federal court. Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 106 (1984). An action
against state officers in their official capacities, or an action
against an agency of the state, is tantamount to an action
against the state. Yorktown Medical Laboratory v. Perales,
948 F.2d 84, 87 (2d Cir. 1991) (official capacity actions);
Santiago v. New York State Dep't of Correctional Services,
945 F.2d 25, 28 n.1 (2d Cir. 1991) (agencies of the state).
B. Application
In this case, in addition to the individual parole officers who
were allegedly responsible for obtaining the warrant to search
her apartment, plaintiff has named the “N.Y.S. Division
of Parole.” (AC at 1). The Eleventh Amendment prevents
plaintiff from suing the N.Y.S. Division of Parole. Thus, to
the extent that plaintiff seeks to sue the agency separately
from the individual officers, the AC may be dismissed with
prejudice, but as further discussed below, plaintiff may sue
Mark Saben, one of the individuals who allegedly participated
in obtaining the warrant for her home. 11
IV. Syracuse Police Department/Municipal Liability
A. Legal Standards
Under New York law, departments, like the Syracuse
Police Department that are merely administrative arms of a
municipality, do not have a legal identity separate from the
municipality, and may not sue or be sued. Hayes v. County of
Sullivan, Nos. 07-CV-667; 09-CV-2071, 2012 WL 1129373,
at *24 (S.D.N.Y. March 30, 2012) (citing inter alia Hall v. City
of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002)).
B. Application
To the extent that plaintiff is suing the Syracuse Police
Department as an entity separate from the individual police
officers who were allegedly involved in obtaining the warrant
for her apartment, plaintiff may not do so. Unlike the State
of New York itself, against which a suit for damages would
be barred by the Eleventh Amendment, the City of Syracuse
could be named instead of the Syracuse Police Department.
However, the municipality itself may only be named as a
defendant in certain circumstances. In Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978), the Supreme Court outlined
the limited circumstances under which a municipality may
be liable under Section 1983. Only when the municipality,
through the execution of its policies, actually deprives an
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individual of his constitutional rights, is it liable for the injury.
Id. at 694. To establish municipal liability, the policy must
actually cause the violation of constitutional rights; it must
be the moving force behind the violation. Id.; Dominguez v.
Beame, 603 F.2d 337, 341 (2d Cir. 1979).
*5 As it is written, the AC makes no claims that would allow
the plaintiff to name the City of Syracuse as a defendant in
this action. Plaintiff essentially complains of a single incident,
during which the officers did not act properly in obtaining a
warrant for her home and did not act properly in executing
the warrant in her case. There is no indication that plaintiff
can assert a policy or custom which would support municipal
liability based on these facts. While plaintiff may not sue the
Syracuse Police Department in any event, and while the court
will not sua sponte replace the Syracuse Police Department
with the City of Syracuse, the court does not rule out that,
upon proper pleading, plaintiff could amend her AC to assert
such a claim against the City of Syracuse.
However, plaintiff is warned that any such facts must
plausibly suggest her claim, and that simply making a
conclusory allegation of a “policy or custom” is insufficient
to assert municipal liability. Sulaymu Bey v. City of New York,
No. 17-CV-3563. 2019 WL 1434597, at *10 (E.D.N.Y. Mar.
29, 2019); Nielsen v. City of Rochester, 58 F. Supp. 3d 268,
277 (W.D.N.Y. 2014) (conclusory allegations which merely
recite the elements for stating a Monell claim are insufficient
to state a claim for municipal liability) (citing inter alia
Genovese v. Town of Southhampton, 92 F. Supp. 2d 8, 25
(E.D.N.Y. 2013)). A single incident, particularly if it involved
individuals below the policy-making, level is insufficient to
state a Monell claim. DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.
1998). As discussed below, plaintiff may proceed against the
individual officers who she claims violated her constitutional
rights: Detective Summers, D.P. Proud; and Richard Curran.
V. Prosecutorial Immunity/Personal Involvement
A. Legal Standards
1. Prosecutorial Immunity
Prosecutors enjoy absolute immunity from suit under section
1983 in matters associated with their prosecutorial functions,
regardless of motivation. Dory v. Ryan, 25 F.3d 81, 83
(2d Cir. 1994) (prosecutorial immunity covers virtually all
acts associated with the prosecutor's function, including
conspiracies to present false evidence); Bernard v. County
of Suffolk, 356 F.3d 495 (2d Cir. 2004) (absolute immunity
shields prosecutors from suit pursuant to section 1983 for
their alleged malicious or selective prosecution as well as for
any misconduct in the presentation of evidence to the grand
jury).
Absolute immunity is defeated only when the prosecutor is
engaging in investigative functions. Bernard v. County of
Suffolk, 356 F.3d at 502-503 (citation omitted). The initiation
and pursuit of prosecution, regardless of any alleged illegality,
is protected by absolute prosecutorial immunity. Peay v.
Ajello, 470 F.3d 65, 67-68 (2d Cir. 2006). It has also been held
that a prosecutor is entitled to absolute immunity for his or her
decision not to prosecute, regardless of the motivation for that
decision. Scloss v. Bouse, 876 F.2d 287, 292 (2d Cir. 1989).
2. Personal Involvement
Personal involvement is a prerequisite to the assessment of
damages in a section 1983 case, and respondeat superior
is an inappropriate theory of liability. Richardson v. Goord,
347 F.3d 431, 435 (2d Cir. 2003). In Williams v. Smith, 781
F.2d 319, 323-24 (2d Cir. 1986), the Second Circuit detailed
the various ways in which a defendant can be personally
involved in a constitutional deprivation, and thus be subject
to individual liability.
A supervisory official is personally involved if that official
directly participated in the infraction. Id. The defendant may
have been personally involved if, after learning of a violation
through a report or appeal, he or she failed to remedy the
wrong. Id. Personal involvement may also exist if the official
created a policy or custom under which unconstitutional
practices occurred or allowed such a policy or custom to
continue. Id. Finally, a supervisory official may be personally
involved if he or she were grossly negligent in managing
subordinates who caused the unlawful condition or event. Id.
See also Iqbal v. Hasty, 490 F.3d 143, 152–53 (2d Cir. 2007)
(citing Colon v. Coughlin, 58 F.3d 865, 873) (2d Cir. 1995),
rev'd on other grounds, Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
*6 Some courts have discussed whether all of the Colon
factors are still viable after Ashcroft. See Conklin v. County of
Suffolk, 859 F. Supp. 2d 415, 439 (E.D.N.Y. 2012) (discussing
cases). However, the court in Conklin ultimately determined
that it was unclear whether Colon had been overruled or
limited, and continued to apply the factors outlined in Colon.
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Id. In making this determination, the court in Conklin stated
that “it remains the case that ‘there is no controversy that
allegations that do not satisfy any of the Colon prongs are
insufficient to state a claim against a defendant-supervisor.’
” Id. (quoting Aguilar v. Immigration Customs Enforcement
Div. of the U.S. Dep't of Homeland Sec., 811 F. Supp. 2d
803, 815 (S.D.N.Y. 2011)). See also Jones v. Smith, No.
09-CV-1058, 2015 WL 5750136, at *8 n.6 (N.D.N.Y. Sept.
30, 2015) (discussing the use of the Colon factors absent
definitive guidance from the Second Circuit).
B. Application
Plaintiff has named the Onondaga County District Attorney,
William J. Fitzpatrick, together with one of his Assistant
District Attorneys, Sean Chase. (AC ¶ 3(c)). Plaintiff claims
that she spoke to ADA Chase “right after the seizure,” she
explained to him that the money did not belong to her son,
the money was hers, and she “produced tax returns” for
the last five consecutive years in an effort to show that
she “legally possessed the money.” (AC at 5). She claims
that “[k]nowing this,” ADA Chase told plaintiff that his
office would return the illegally seized money. (Id.) Plaintiff
claims that notwithstanding ADA Chase's statement, he did
not return the money, and allegedly “stalled” plaintiff until
her son signed the waiver of forfeiture document, which
included the total amount of money that was seized from
both residences. (AC at 6). The initiation of civil asset
forfeiture proceedings is a prosecutorial function that has
been afforded absolute immunity. See Byrne v. City of New
York, 736 Fed. App'x 263, 266 (2d Cir. 2018) (Second Circuit
precedent affords absolute immunity to government attorneys
who initiate civil suits) (quoting Spear v. Town of W. Hartford,
954 F.2d 63, 66 (2d Cir. 1992); Mangiafico v. Blumenthal, 471
F.3d 391, 395 (2d Cir. 2006)).
ADA Chase was allegedly handling the forfeiture proceeding,
and even though he did not have to initiate court proceedings
because Mr. Leslie signed the stipulation and waiver, the
document stated that “I have concluded that the District
Attorney would likely establish that the above-mentioned
property is subject to forfeiture pursuant to Article 13-A
[of the NY Civil Practice Law and Rules] and the District
Attorney would likely prevail in such a forfeiture action.” 12
(AC Ex. CM/ECF p.25). This document took the place of
an in-court forfeiture proceeding, which would have been
held pursuant to N.Y. Civ. Prac. L. & R. § 1311 (Forfeiture
Actions). Thus, ADA Chase is entitled to absolute immunity
with respect to his conduct relative to the forfeiture of the
money seized, even if plaintiff claimed that some of the
money belonged to her. 13 This is true whether ADA Chase's
conduct was proper or improper, and whether or not he was
mistaken in obtaining Mr. Leslie's waiver and stipulation of
forfeiture. Thus, to the extent that plaintiff raises due process
violations with respect to her interest in the funds, they must
be dismissed as against ADA Chase.
*7 Plaintiff has not asserted any facts against defendant
Fitzpatrick. 14 He does not appear to have been involved
in any way in obtaining the search warrant for plaintiff's
apartment, in executing the search warrant for plaintiff's
apartment, or in the forfeiture proceedings with respect to
the money seized. Thus, any claims against him individually
would fail for lack of personal involvement. If he had been
personally involved in the forfeiture, he, like ADA Chase,
would be entitled to absolute prosecutorial immunity. 15
Thus, plaintiff's amended complaint may be dismissed
with prejudice as against defendants ADA Chase and DA
Fitzpatrick.
VI. Search and Seizure
A. Legal Standards
“It is well-settled that in cases raising claims under the Fourth
Amendment of unauthorized execution of a search warrant
‘[t]he validity of the warrant must be assessed on the basis
of the information that the officers disclosed, or had a duty
to disclose, to the issuing Magistrate.’ ” Arroyo v. City of
Buffalo, No. 15-CV-753, 2018 WL 4376798, at *3 (W.D.N.Y.
Sept. 13, 2018) (quoting Velardi v. Walsh, 40 F.3d 569, 575
n. 2 (2d Cir. 1994) (internal quotation marks omitted)). A
warrant is not invalid for section 1983 purposes if it is “ ‘based
on seemingly reliable information which is later found to be
erroneous.’ ” Id. (quoting Lewis v. City of Mt. Vernon, N.Y.,
984 F. Supp. 748, 756 (S.D.N.Y. 1997)).
B. Application
Although the court has concerns about the merits of this
action, at this stage of the proceedings, the court finds that
any Fourth Amendment claims that plaintiff may have against
defendants Saben, Summers, Proud, and Curran may survive
initial review. 16 Plaintiff seems to claim that the warrant for
her home was based on false information given the court,
which plaintiff claims was the only basis for the warrant.
While it may be that a close review of the documents provided
with the amended complaint, together with any other evidence
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or argument by defendants in a properly supported dispositive
motion, may show otherwise, the court is not currently in a
position to make factual or other determinations regarding the
validity of the warrant or any other claims that plaintiff may
have regarding the search of her home.
*8 The court also notes that because of the waiver and
stipulation, signed by Mr. Leslie, there was no formal
forfeiture proceeding in New York State Court as provided
in N.Y. Civ. Prac. L. & R. § 1311. Thus, it is unclear how
the plaintiff could have challenged the forfeiture. 17 The
court also makes no findings regarding the validity of any
defenses that the defendants may assert regarding the incident
in question.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No.
4) is GRANTED, and it is
RECOMMENDED, that the amended complaint (Dkt.
No. 3) be DISMISSED IN ITS ENTIRETY as
against defendants N.Y.S. DIVISION OF PAROLE;
SYRACUSE POLICE DEPARTMENT; WILLIAM J.
FITZPATRICK; AND SEAN CHASE, and it is
RECOMMENDED, that to the extent that the AC may be
read as naming SGT. LLUKACI or PO RIGBY, the AC may
be dismissed WITHOUT PREJUDICE for failure to state a
claim, and it is
RECOMMENDED, that if the District Court adopts
this Recommendation, the case be returned to me
for further proceedings, including an order serving the
remaining defendants: SABEN, SUMMERS, PROUD, and
CURRAN.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health
& Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2019 WL 5002215
Footnotes
1 When plaintiff filed her original complaint, the case was administratively closed due to plaintiff's failure to
comply with the filing fee requirement. (Dkt. No. 2). Prior to re-filing her motion to proceed IFP, (Dkt. No. 4),
plaintiff also filed an amended complaint, which the court will review as the operative pleading. The case was
re-opened on August 1, 2019. (Dkt. No. 6).
2 Plaintiff numbered the pages of the “Fact” section of the amended complaint at the bottom of the page.
The court will cite to the page numbers contained on the actual document. Plaintiff has attached a series of
documents as exhibits to the amended complaint which she did not number. The court will cite to the plaintiff's
exhibits (“AC Ex.”) with the page number as assigned by the court's electronic filing system (“CM/ECF”).
3 Plaintiff was not present for any of the incidents that she describes in her complaint until she arrived at
her house during the subsequent search of her property. Plaintiff appears to be taking her recitation of
the background facts from the police reports and other documents that she has attached to her amended
complaint. (AC Ex. CM/ECF pp. 16-32). The court is stating the facts as plaintiff has described them in the
amended complaint.
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4 This is the first time that another parole officer was mentioned in plaintiff's statement of facts. The court will
assume that defendant Rigby was at the residence from the beginning, but it is not completely clear from
the papers.
5 Plaintiff does not allege that PO Rigby participated in the search of her apartment.
6 Plaintiff states that the officers were in possession of the door key “prior to their actual possession of the
warrant for 112 Fordham Rd.” (AC at 2).
7 Plaintiff has attached a copy of Mr. Leslie's “Waiver and Stipulation.” (AC Ex. CM/ECF p.25-26). Plaintiff
claims that this document was obtained after she asked for the return of the money several times from the
District Attorney's Office, the Citizen Review Board, and the Syracuse Police Department. (AC at 7). When
she failed to get a “truthful” response, she contacted Feldman, Kramer & Monaco, P.C. (Id.) The document
was sent to the attorneys' office after the firm wrote a letter of inquiry. (Id.)
8 Plaintiff is pro se, and the court must interpret plaintiff's complaint liberally. Sealed Plaintiff v. Sealed
Defendants, 537 F.3d 185, 191 (2d Cir. 2008). The court considers all possible grounds for relief that plaintiff
could be raising. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (pro se papers are interpreted
liberally to raise the strongest arguments suggested therein).
9 Plaintiff states that she works from home, and could not work for the time that the officers were searching
her apartment. (AC at 10).
10 Apparently, on the day that the officers searched plaintiff's apartment, they found a “weed roach” and gave
plaintiff an appearance ticket, which was later dismissed after plaintiff appeared in court. (AC at 10). Plaintiff
seeks lost income for the time that it took to appear in court. (Id.)
11 It is unclear whether plaintiff meant to name PO Rigby as a defendant herein. He is mentioned briefly in the
body of the complaint and was apparently present during the Marcellus St. search, but is not listed in the
caption of the complaint, and plaintiff submitted no proposed summons for PO Rigby. In addition, it does not
appear from the facts as stated by plaintiff that PO Rigby was involved in obtaining the search warrant for
plaintiff's apartment, nor is it even apparent that he was present during the search of plaintiff's apartment.
Thus, plaintiff does not state any claims against PO Rigby, and to the extent that she meant to name him as
a defendant, the AC should be dismissed as against him.
12 Article 13-a is entitled “Proceeds of a Crime -Forfeiture.” N.Y. Civ. Prac. L. & R. Art. 13-a
13 Although not relevant to the court's decision because it is based on absolute immunity of the prosecutor,
regardless of whether Mr. Leslie's assertions in the document were correct, the court notes that plaintiff's
statement herein is contrary to her son's sworn assertion in the document. Plaintiff states that ADA Chase
told plaintiff that they were waiting to hear from Mr. Leslie's attorney regarding whether he was going to
sign the forfeiture document. (AC at 6). Plaintiff claims that her son signed the document “under duress.”
Plaintiff cannot assert any claims regarding her son, and in any event, her son was, by her own statement,
represented by counsel during the matter.
14 Plaintiff requests only damages, including a return of the $40,000.00 as relief in this action. She does not
seem to be asking for any form of injunctive relief. Even though plaintiff asks for a “return” of money, the
Eleventh Amendment does not “recognize a distinction ‘between monetary damages and money in which
plaintiff has a property interest.’ ” Local 851 of Internat'l Broth. of Teamsters v. Thyssen Haniel Logistics, Inc.,
90 F. Supp. 2d 237, 249-50 (E.D.N.Y. 2000) (quoting Yorktown Medical Lab., Inc. v. Perales, 949 F.2d 84,
87-88 (2d Cir. 1991)). The District Attorney could have been the proper party in a declaratory judgment under
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Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
© 2026 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 © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
© 2026 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 © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:25-cv-00719-DNH-ML Document 11 Filed 02/20/26 Page 211 of 417

Gonzalez v. City of New York, Not Reported in F.Supp. (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 382055
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Angel GONZALEZ, Plaintiff,
v.
THE CITY OF NEW YORK; New York
City Department of Correction; Warden, Otis
Bantum Correctional Center; Corrections
Officer Summer, Shield No. 11856, Defendants.
No. 97 CIV. 2246(MGC).
|
July 9, 1998.
MEMORANDUM OPINION AND ORDER
CEDARBAUM, J.
*1 Plaintiff pro se, Angel Gonzalez, brings this action under
42 U.S.C. § 1983. He alleges that while in the custody of the
New York City Department of Correction (“NYC DOC”), he
was beaten by Correction Officer Summer. This is a motion
to dismiss the complaint as against the City of New York,
Warden of Otis Bantum Correctional Center (the “Warden”)
and NYC DOC pursuant to Fed.R.Civ.P. 12(b)(6).
On April 22, 1998, a letter was sent to Gonzalez directing him
to respond to this motion by June 22, 1998. The letter advised
Gonzalez that if he did not respond by June 22, the motion
would be decided on the basis of the existing record, and the
City of New York, New York City Department of Correction
and Warden of Otis Bantum Correctional Facility might be
dismissed from the action. Gonzalez has not responded. For
the reasons that follow, the motion to dismiss is granted.
BACKGROUND
The complaint alleges that plaintiff was assaulted by
Correction Officer Summer while he was incarcerated at Otis
Bantum Correctional Center on Rikers Island, New York City.
According to the complaint, as plaintiff was coming into the
facility's recreation area from the “yard,” he passed through
a metal detector which registered that he had a metal object
on his person. Defendant Summer then swore at plaintiff
and told him to hurry up. As plaintiff passed through the
metal detector a second time, he said to Summer, “You don't
have to act like that!” Summer then struck plaintiff in the
face repeatedly until he lost consciousness. According to the
complaint, when plaintiff regained consciousness, he found
Summer “still abusing” him and swearing at him. Plaintiff
left, found his way back to the housing area and felt as if he
“had been hit with a bat to the face .” Plaintiff alleges that
he suffered a cut under his left eye, serious swelling of his
face and head, and lacerations of his scalp. He alleges that
black and blue shadows still show under his eyes, and that he
suffers from headaches. He seeks damages in the amount of
three million dollars.
DISCUSSION
On a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations of the complaint must be accepted as
true, Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122
L.Ed.2d 517 (1993), and all reasonable inferences must be
drawn in favor of the plaintiff, Bolt Elec., Inc. v. City of New
York, 53 F.3d 465, 469 (2d Cir.1995). A complaint should not
be dismissed “unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
1. NYC DOC and the City of New York
Defendants argue that Gonzalez cannot assert a claim against
NYC DOC based on any legal theory because it is not a suable
entity. They also contend that the complaint fails to state a
claim against the City of New York because it does not allege
that the actions complained of were the result of an official
policy, custom or practice of the City of New York.
*2 In addition to the defect that NYC DOC is an agency
of the City of New York that is not a suable entity, 1 the
complaint fails to state a claim upon which relief can be
granted against either NYC DOC or the City. To state a claim
under § 1983, a plaintiff must allege that a person acting
under color of state law deprived him of a right, privilege or
immunity guaranteed by federal law. To state a claim against
a municipality, a plaintiff must also plead that the wrongful
action alleged was the result of an official policy, custom
or practice of the municipality, and that that policy caused
plaintiff's injury. Monell v. Department of Social Services, 436
U.S. 658, 690–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
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Gonzalez v. City of New York, Not Reported in F.Supp. (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
The complaint, however, alleges no official policy, custom or
practice resulting in injury to Gonzalez. Indeed, the complaint
does not even mention the City of New York or NYC DOC,
except to the extent that they are listed as parties.
2. Warden of Otis Bantum Correctional Center
Defendants also urge dismissal of the complaint against the
Warden, on the ground that there are no allegations in the
complaint concerning that defendant. When an individual
defendant is sued under § 1983, that defendant's personal
involvement in the alleged constitutional deprivation is a
prerequisite to an award of damages. See Wright v. Smith,
21 F.3d 496, 501 (2d Cir.1994). For a claim under § 1983,
a complaint sufficiently alleges personal involvement of a
supervisory official if it alleges one of the following: (a) direct
participation in the alleged wrong; (b) failure to remedy a
violation after receiving notice of it; (c) creation of a policy or
custom under which unconstitutional practices occur; or, (d)
grossly negligent management of subordinates who cause the
constitutional violation. See Black v. Coughlin, 76 F.3d 72, 74
(2d Cir.1996).
A § 1983 claim against a municipal official in his official
capacity is treated as a claim against the municipality itself.
Brandon v. Holt, 469 U.S. 464, 471–72, 105 S.Ct. 873, 83
L.Ed.2d 878 (1985). As noted above, § 1983 imposes liability
on a municipality only when the action that is alleged to be
unconstitutional implements or executes an official policy or
custom. See Monell, 436 U.S. at 690–91.
From the complaint, it is unclear whether the warden is being
sued in his personal or official capacity. However, pro se
complaints, if possible, should be construed as asserting both
claims. Jackson v. Dinkins, 1995 WL 657075, at *1 (S.D.N.Y.
Nov.8, 1995) (citing Frank v. Relin, 1 F.3d 1317, 1326 (2d
Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d
569 (1993)).
The complaint does not allege the personal involvement of
the Warden. The complaint mentions the Warden only in the
caption, and fails to allege any act or omission by that party.
See Crown v. Wagenstein, 1998 WL 118169, at *1 (S.D.N.Y.
Mar.16, 1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement); Taylor v. City of
New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997) (same).
*3 Finally, to the extent that the complaint asserts an official-
capacity claim against the Warden, the claim fails for the
same reason that the claims against the City of New York and
NYC DOC fail. There are no allegations of any municipal
policy or custom that the Warden was executing, or that such a
policy or custom caused the alleged violation of the plaintiff's
constitutional rights, as required by Monell. The absence of
any such allegation precludes a finding of liability against the
Warden in his official capacity.
Accordingly, the complaint fails to the state a claim against
the Warden upon which relief can be granted.
CONCLUSION
For the foregoing reasons, the motion to dismiss the complaint
as against defendants the City of New York, New York
City Department of Correction, and Warden of Otis Bantum
Correctional Facility is granted.
SO ORDERED.
All Citations
Not Reported in F.Supp., 1998 WL 382055
Footnotes
1 Defendants correctly point out that New York City agencies, such as NYC DOC, are organizational
subdivisions of the City of New York lacking independent legal existence and are not themselves subject to
suit. See, e.g., Adams v. Galletta, 966 F.Supp. 210, 212 (S.D.N.Y.1997) (“where a plaintiff has named the
Department of Corrections as a defendant, he has sued a non-suable entity”).
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Gonzalez v. City of New York, Not Reported in F.Supp. (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:25-cv-00719-DNH-ML Document 11 Filed 02/20/26 Page 214 of 417

Gutierrez v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 681238
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Brandon GUTIERREZ, Plaintiff,
v.
The City of NEW YORK, Police Officer Derick Russ,
Police Officer Daniel Trione, Detective Jonathan
Bulzomi, Sergeant John Diaz, Police Officer Charles
Schwartz, Sergeant Timothy Cecchini, Police Officer
Justin Puccia, Sergeant Hillman, Sergeant Timothy
Evans, and John Doe and Jane Doe 1–5, Defendants.
18-CV-3621 (MKB)
|
Signed 02/22/2021
Attorneys and Law Firms
Brandon Gutierrez, Bridgeport, CT, pro se.
Andrew B. Spears, Elizabeth Colette Connelly, Hannah
Victoria Faddis, New York City Law Department, New York,
NY, for Defendants.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge
*1 Plaintiff Brandon Gutierrez, proceeding pro se,
commenced the above-captioned action on June 21, 2018,
against Defendants the City of New York (the “City”), New
York City Police Department (“NYPD”) Officers Derick
Russ, Daniel Trione, Charles Schwartz, and Justin Puccia,
Detective Jonathan Bulzomi, Sergeants John Diaz, Timothy
Cecchini, Stephen Hillman, 1 and Timothy Evans, and John
Doe and Jane Doe 1–5. (Compl., Docket Entry No. 1.)
Plaintiff alleges that on July 18, 2015, Defendants wrongfully
arrested him for crimes they were aware he did not commit
(the “Incident”). (Id. ¶¶ 22, 57.) Plaintiff asserts claims
pursuant to 42 U.S.C. § 1983 for false arrest, excessive use of
force, failure to intervene, unreasonable detention, denial of
the right to a fair trial, 2 unlawful stop and frisk, unreasonable
search and seizure, malicious prosecution, conspiracy, and
Monell liability. (Id. at 7–16.) Plaintiff also asserts several
state law claims for false arrest and imprisonment, assault
and battery, malicious prosecution, unreasonable search and
seizure, negligence, and negligent and intentional infliction
of emotional distress and several claims under Article I, §§ 5,
6, 8, 11, and 12 of the New York State Constitution. (Id. at
16–21.) Plaintiff seeks compensatory and punitive damages
as well as the costs of suit including reasonable attorneys’ fees
and any other relief that the Court deems proper. (Id. at 21.)
Defendants move for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. (Defs.’ Mot. for
Summ. J. (“Defs.’ Mot.”), Docket Entry No. 42; Defs.’ Mem.
in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), Docket Entry No.
44.) Plaintiff has not opposed the motion. For the reasons
discussed below, the Court grants the motion.
I. Background
The following facts are undisputed unless otherwise noted.
a. The Incident
On July 18, 2015, at approximately 4:00 PM, Jesus Pujols
was at his barbershop and cellular telephone repair business
located at 3324 Fulton Street on the corner of Pine Street
and Fulton Street in Brooklyn, New York (the “Shop”). 3
Dane Tyndall, who knew Pujols from prior interactions, had
contacted Pujols to “arrange a meetup” that day. (Defs.’ 56.1
¶ 13; NYPD Compl. Follow-Up Report (“NYPD Follow-Up
Report”), annexed to Spears Decl. as Ex. D, Docket Entry No.
43-4; Pujols Trial Tr. 45:1–45:7.) 4 At approximately 4:00
PM, Tyndall entered the Shop, and within the next hour at
least two other individuals entered the Shop, “one of whom
was brandishing a black semi-automatic handgun.” (Defs.’
56.1 ¶ 16; NYPD Follow-Up Report 2; Pujols Trial Tr. 45:1–
45:7.) Tyndall and the two other individuals (the “Assailants”)
directed Pujols to his apartment, located below the Shop.
(Defs.’ 56.1 ¶ 17; Pujols Trial Tr. 45:23–46:14.) Anamaria
Agosto, Pujols’ then-girlfriend, was inside Pujols’ apartment
when the Assailants went downstairs. (Defs.’ 56.1 ¶ 18;
NYPD Follow-Up Report 14.) The Assailants struck Pujols in
the face with the handgun and kicked Agosto in the back and
stomach. (Defs.’ 56.1 ¶¶ 20, 22; NYPD Follow-Up Report
14; Pujols Trial Tr. 51:12–52:24.) The Assailants took Pujols’
Connecticut state driver's license, Pujols’ New York state
driver's license, a religious ring, a necklace, a crucifix, a 30
gigabyte Apple iPod, a black Samsung cellular telephone,
a Samsung cellular telephone battery, a black LG cellular
telephone, a black Kyocera cellular telephone, a white Apple
iPhone charging case, two Bic lighters, and $670 before
fleeing the scene. 5 The Assailants left the apartment with
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Gutierrez v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
the stolen property and fled on foot southbound on Pine
Street. (NYPD Follow-Up Report 14; Pujols Trial Tr. 59:3–6.)
Defendants contend that Plaintiff was one of the Assailants.
(Defs.’ Mem. 2.) Plaintiff contends that he was not one of the
Assailants. (Dep. of Brandon Gutierrez (“Pl.’s Dep.”) 57:3–
7, annexed to Spears Decl. as Ex. A, Docket Entry No. 43-1;
Compl. ¶ 23.)
*2 At approximately 4:37 PM, after the Assailants left
Pujols’ apartment, Officers Russ and Trione were sitting in
their police car near the corner of Fulton and Pine Street
and were approached by Pujols and Agosto. 6 Pujols and
Agosto told the officers that they had just been robbed at
gunpoint. (Defs.’ 56.1 ¶ 26; Russ Trial Tr. 413:16–414:4.)
Pujols entered Officers Russ and Trione's car and drove
around with them while Agosto remained at the scene. (Defs.’
56.1 ¶ 27; Russ Trial Tr. 415:19–416:17.) While riding
with Officers Russ and Trione, Pujols “positively identified
[Plaintiff] to the officers as one of the individuals involved
in the robbery earlier that afternoon.” (Defs.’ 56.1 ¶ 28;
Russ Trial Tr. 420:23–421:8; Pujols Trial Tr. 52:1–53:11.)
Pujols was between seven and eight feet away from Plaintiff
when Pujols identified him. (Pl.’s Dep. 61:5–15.) Pujols could
“clearly identify” Plaintiff and Plaintiff stated that he was able
to “clearly see [Pujols’] face.” (Id. at 61:16–18.)
b. Plaintiff's arrest and trial
Following the identification, at approximately 4:50 PM,
Plaintiff was apprehended by Detective Bulzomi and was
arrested by an unspecified officer. 7 (Defs.’ 56.1 ¶ 31; Pl.’s
Dep. 60:3–22.)
The parties dispute the nature and location of Plaintiff's
apprehension. Plaintiff contends that he was apprehended
by the officers at a Foot Locker store on Liberty Avenue.
(Pl.’s Dep. 46:25–47:2, 49:21–50:6.) Plaintiff testified that
two officers approached him inside the store and told him
to “come here,” in reference to going outside. (Id. at 52:3–
4.) When Plaintiff went outside, Pujols, sitting in one of
the police cars, identified him as one of the Assailants. (Id.
at 52:3–17.) The officers attempted to handcuff him, but
Plaintiff resisted by “slapping [the officers’] hands away” and
“brushing” the officers off while they attempted to restrain
him. 8 (Pl.’s Dep. 61:22–25.) Plaintiff also stated that the
officers “tackled [him] to the ground and then ... handcuffed
and put [him]... in the cop car.” (Id. at 60:21–22.) Defendants
assert that Plaintiff was apprehended at Glen Street and Euclid
Avenue. 9 Defendants contend that Plaintiff was spotted by
Detective Bulzomi “after being pointed out by a civilian
livery driver,” (Defs.’ Mem. 2; Bulzomi Trial Tr. 306:11–
307:7), and Plaintiff was “chased, apprehended, and placed
in handcuffs without resistance” (Defs.’ Mem. 2–3; Bulzomi
Trial Tr. 307:16–307:21, 309:12–310:14). Detective Bulzomi
testified at Plaintiff's state trial that Plaintiff was placed in
handcuffs while “[h]e was on the ground.” (Bulzomi Trial
Tr. 311:8–11.) The parties do not dispute that Plaintiff was
not injured while in NYPD custody, 10 that Plaintiff did not
complain of an injury during his arrest and detention, and that
Plaintiff did not request medical attention during his arrest
and detention. (Defs.’ 56.1 ¶¶ 33–36; Pl.’s Dep. 71:1–9.)
During Plaintiff's arrest, Detective Bulzomi searched Plaintiff
and found several cellular telephones and a wallet. (Defs.’
56.1 ¶¶ 37–38; Pl.’s Dep. 58:23–59:23.) Defendants contend
that Detective Bulzomi also found Pujols’ Connecticut state
license on Plaintiff's person, (Defs.’ 56.1 ¶ 38; NYPD
Compl. Report 6), although Plaintiff testified that he did
not have Pujols’ license when he was arrested, (Pl.’s Dep.
120:10–13). 11 NYPD officers transported Plaintiff to the
75th Precinct, where he remained overnight. (Defs.’ 56.1
¶ 40; Pl.’s Dep. at 64:17–19, 71:20–24; Bulzomi Trial Tr.
313:13–23.) The same day, Detective Puccia apprehended
Dillon Patterson as one of the Assailants and created a list
of items recovered from Patterson. 12 Pujols and Agosto
each signed a stolen property report. (Pujols Stolen Property
Report; Agosto Stolen Property Report.) Pujols reported as
stolen a Connecticut state identification, a New York state
driver's license, a leather wallet, a silver and gold crucifix
with a chain, a Yankee hat, a 30 gigabyte Apple iPod and
case, “assorted cell phones,” one white iPhone 5 charging
case, one Samsung cellular telephone battery, and $660 in
cash. (Pujols Stolen Property Report.) Agosto reported as
stolen a religious ring, two Bic lighters, one Samsung T-
Mobile cellular telephone, one LG cellular telephone, one
Kyocera cellular telephone, and $10 in cash. (Agosto Stolen
Property Report.) At the 75th Precinct following Plaintiff's
arrest, photographs were taken of the property recovered
from Plaintiff and from Patterson. (Defs.’ 56.1 ¶¶ 45, 47;
Photographs of Property Recovered from Plaintiff annexed to
Spears Decl. as Ex. M, Docket Entry No. 43-13; Photographs
of Property Recovered from Patterson.) On July 18, 2015,
Officer Russ returned to Pujols and Agosto the property
recovered and identified as stolen. (Defs.’ 56.1 ¶ 48; Russ
Trial Tr. 428:17–21.) Plaintiff contends that he owns all the
property recovered from his person and that none of the
property recovered belongs to Pujols or Agosto. (Pl.’s Dep.
54:8–54:17, 114:12–114:14.)
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Gutierrez v. New York, Not Reported in Fed. Supp. (2021)
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*3 On July 19, 2015, at approximately 10:10 AM, Plaintiff
was transported to Central Booking and “was able to confer
with an attorney.” (Defs.’ 56.1 ¶ 50; Pl.’s Dep. 73:10–14.)
On July 20, 2015, at approximately 1:19 AM, Plaintiff was
arraigned on charges stemming from the robbery at the shop
including robbery in the first degree, burglary in the first
degree, grand larceny in the fourth degree, criminal use of
a firearm in the first degree, criminal possession of stolen
property in the third degree, and criminal possession of a
weapon in the third degree. (Defs.’ 56.1 ¶ 51; Plaintiff's
Prisoner Arraignment Form (“Arraignment Form”), annexed
to Spears Decl. as Ex. J, Docket Entry No. 43-10.) Plaintiff's
bail was set at $30,000. 13 (Defs.’ 56.1 ¶ 52; Plaintiff's
Undertaking of Bail Form (“Bail Form”), annexed to Spears
Decl. as Ex. R, Docket Entry No. 43-18.) On August 13, 2015,
Plaintiff was indicted. (Defs.’ 56.1 ¶ 53; Pl.’s Kings County
Indictment, annexed to Spears Decl. as Ex. P, Docket Entry
No. 43-16.)
Between June 6, 2017 and June 23, 2017, Plaintiff stood
trial in the Supreme Court for the State of New York, Kings
County on charges of two counts of robbery in the first degree,
burglary in the first degree, robbery in the second degree,
burglary in the third degree, and two counts of criminal
possession of stolen property in the fifth degree. (Defs.’ 56.1
¶¶ 53–54; Pl.’s Kings County Indictment.) On June 23, 2017,
a jury found Plaintiff not guilty on each of the charges. (Defs.’
56.1 ¶ 58, Excerpts from Pl.’s Tr. Proceedings, annexed to
Spears Decl. as Ex. X, Docket Entry No. 43-24; Certificate
of Disposition Acquittal, annexed to Spears Decl. as Ex. Z,
Docket Entry No. 43-26.)
II. Discussion
a. Standard of review
Summary judgment is proper only when “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); Wandering
Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018); see
also Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 230 (2d
Cir. 2015). The court must “constru[e] the evidence in the
light most favorable to the non-moving party” and “resolve
all ambiguities and draw all permissible factual inferences
in favor of the party against whom summary judgment is
sought.” Lenzi v. Systemax, Inc., 944 F.3d 97, 107 (2d Cir.
2019) (first quoting VKK Corp. v. Nat'l Football League, 244
F.3d 114, 118 (2d Cir. 2001); and then quoting Johnson v.
Goord, 445 F.3d 532, 534 (2d Cir. 2006)). The role of the
court “is not to resolve disputed questions of fact but only to
determine whether, as to any material issue, a genuine factual
dispute exists.” Rogoz v. City of Hartford, 796 F.3d 236, 245
(2d Cir. 2015) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d
537, 545 (2d Cir. 2010)) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986)). A genuine issue of fact exists when there is sufficient
“evidence on which the jury could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The
“mere existence of a scintilla of evidence” is not sufficient
to defeat summary judgment. Id. The court's function is to
decide “whether, after resolving all ambiguities and drawing
all inferences in favor of the nonmoving party, a rational juror
could find in favor of that party.” Pinto v. Allstate Ins. Co.,
221 F.3d 394, 398 (2d Cir. 2000).
Where a motion for summary judgment is unopposed,
the district court “may not grant the 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.” D.H. Blair & Co. v. Gottdiener,
462 F.3d 95, 110 (2d Cir. 2006) (quoting Vt. Teddy Bear Co.
v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004));
see also Lue v. JPMorgan Chase & Co., 768 F. App'x 7, 10
(2d Cir. 2019) (“Where a motion for summary judgment is
unopposed, summary judgment is proper only if the court
is satisfied that the moving party has met its burden with
sufficient support in the record evidence.”), cert. denied, –––
U.S. ––––, 140 S. Ct. 388, 205 L.Ed.2d 218 (2019); Amaker
v. Foley, 274 F.3d 677, 681 (2d Cir. 2001) (“[S]ummary
judgment only is ‘appropriate’ when the moving party has
met its burden of production under Fed. R. Civ. P. 56(c) ‘to
show initially the absence of a genuine issue concerning any
material fact.’ ” (quoting Adickes v. S.H. Kress & Co., 398
U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970))). “Before
summary judgment may be entered, the district court must
ensure that each statement of material fact is supported by
record evidence sufficient to satisfy the movant's burden of
production even if the statement is unopposed.” Jackson v.
Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (citing Vt.
Teddy Bear Co., 373 F.3d at 244). “In doing so, the court
may rely on other evidence in the record even if uncited.” Id.
(citing Fed. R. Civ. P. 56(c)(3)).
b. Plaintiff's credibility
*4 As a threshold matter, Defendants argue that the
Court should disregard Plaintiff's version of events because
it is “wholly implausible[ ] and unsupported by the
record.” (Defs.’ Mem. 5.) In support, Defendants contend that
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“[w]hile credibility determinations are not typically within the
Court's purview at the summary judgment stage,” a court may
decline to credit a plaintiff's testimony when “no reasonable
person would undertake the suspension of disbelief necessary
to give credit to the allegations made in [the] complaint.” (Id.
(alteration in original) (quoting Jeffreys v. City of New York,
426 F.3d 549, 555 (2d Cir. 2005)). Defendants argue that
Plaintiff is not credible because (1) Plaintiff alleges that he
was arrested “outside of a Foot Locker store approximately
half a mile away from Euclid Avenue and Glen Street” where
Defendants allege Plaintiff's arrest occurred, (2) Plaintiff fails
to adduce any evidence such as video or a receipt from Foot
Locker suggesting that he was arrested outside of the Foot
Locker, and (3) Plaintiff's notice of claim “conclusively states
that the arrest occurred near 3324 Fulton Street.” (Id. at 5–6
(citing Personal Injury Claim Form, annexed to Spears Decl.
as Ex. BB, Docket Entry No. 43-28).)
“Assessments of credibility and choices between conflicting
versions of ... events are matters for the jury, not for the
court on summary judgment.” Jeffreys, 426 F.3d at 553–54
(quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.
1996)); see also Green v. Shaw, 827 F. App'x 95, 96 (2d
Cir. 2020) (quoting Jeffreys, 426 F.3d at 553). In Jeffreys,
the Second Circuit recognized a “narrow exception ‘in the
rare circumstance where the plaintiff relies almost exclusively
on his own testimony, much of which is contradictory and
incomplete.” Frost v. New York City Police Dep't, 980
F.3d 231, 245 (2d Cir. 2020) (quoting Jeffreys, 426 F.3d
at 554). However, the Second Circuit has emphasized that
“the Jeffreys exception is narrow, and it applies only ‘in
the rare circumstance where’ a witness's testimony is so
problematic that no reasonable juror could credit it.” Id.
at 246 (quoting Jeffreys, 426 F.3d at 554). In ordinary
cases when a district court is faced with “the contradictory
deposition testimony [or declaration] of a fact witness ..., the
general rule remains that a district court may not discredit a
witness's deposition testimony [or declaration] on a motion
for summary judgment, because the assessment of a witness's
credibility is a function reserved for the jury.” Id. (alterations
in original) (quoting In re Fosamax Prod. Liab. Litig., 707
F.3d 189, 194 n.4 (2d Cir. 2013) (per curiam)).
The Court declines to discredit Plaintiff's version of events.
The fact that Plaintiff's testimony regarding the location
of his arrest does not align with Defendants’ account or
with “all documentation of Plaintiff's arrest,” (Defs.’ Mem.
5–6), indicates that there is a conflict between Plaintiff
and Defendants’ versions of events, but this conflict does
not demonstrate that Plaintiff is sufficiently contradicting
himself to render Plaintiff's testimony incredible. See Jeffreys,
426 F.3d at 555 (finding plaintiff's testimony problematic
because there was “nothing in the record to support plaintiff's
allegations other than plaintiff's own contradictory and
incomplete testimony” and because “no reasonable person
could believe [plaintiff's] testimony” (quoting Jeffreys v.
Rossi, 275 F. Supp. 2d 263, 477 (S.D.N.Y. 2003))).
In addition, although there are some internal inconsistencies
in Plaintiff's testimony such as the location of his arrest,
(compare Pl.’s Dep. 46:25–47:2, 49:21–50:4 (stating location
of apprehension as at a Foot Locker store on Liberty Avenue),
with Personal Injury Claim Form (listing location of the
Incident as 3324 Fulton Street)), and whether Plaintiff slapped
the hands of the officers as they attempted to handcuff him,
(compare Pl.’s Dep. 61:22–25 (stating that Plaintiff resisted
by “slapping [the officers’] hands away” and “brushing” the
officers off while they attempted to restrain him), with id.
at 71:17–19 (stating that Plaintiff did not slap the officers’
hands away because “[t]hat's assault”), these inconsistencies
are not fatal to Plaintiff's credibility as these deviations are
relatively minor. (See Defs.’ Mem. 5–6 (stating that the
location that Plaintiff provided was only half a mile away
from where Defendants allege Plaintiff was arrested)); see
also Matheson v. Kitchen, 515 F. App'x 21, 24 (2d Cir.
2013) (holding that the district court erred when it excluded
testimony because “[w]hile some of the inconsistencies
identified by the court below might well lead a jury to reject
the credibility of [the] testimony, they do not place this case
among the ‘extraordinary cases, where the facts alleged are
so contradictory that doubt is cast upon their plausibility’
” (quoting Rojas v. Roman Catholic Diocese of Rochester, 660
F.3d 98, 106 (2d Cir. 2011))); Ifudu v. City of New York, No.
16-CV-2957, 2018 WL 4568799, at *4–5 (E.D.N.Y. Sept. 24,
2018) (finding discrepancies in plaintiff's testimony as to the
identity and number of arresting officers amount to “minor
contradictions” that do not warrant disregarding Plaintiff's
testimony).
*5 Accordingly, the Court declines to discredit Plaintiff's
version of events.
c. Section 1983 claims
Defendants move for summary judgment on Plaintiff's
claims of false arrest, unlawful stop and search, malicious
prosecution, excessive use of force, denial of a fair trial,
conspiracy, excessive detention, failure to intervene, and
municipal liability.
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Under section 1983, individuals may bring a private cause
of action against persons “acting under color of state law” to
recover money damages for deprivations of their federal or
constitutional rights. Matusick v. Erie Cnty. Water Auth., 757
F.3d 31, 55 (2d Cir. 2014) (quoting 42 U.S.C. § 1983). To
establish a viable section 1983 claim, a plaintiff must show
“the violation of a right secured by the Constitution and laws
of the United States” and that “the alleged deprivation was
committed by a person acting under color of state law.” Vega
v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87–88 (2d
Cir. 2015) (citations omitted); see also Collymore v. City of
New York, 767 F. App'x 42, 45 (2d Cir. 2019) (quoting Vega,
801 F.3d at 87–88).
i. False arrest
Defendants argue they are entitled to summary judgment
on Plaintiff's false arrest claim because (1) Plaintiff cannot
establish personal involvement of all Defendants and (2)
Defendants had probable cause to arrest Plaintiff as a result of
Pujols positively identifying Plaintiff as one of the Assailants.
(Defs.’ Mem. 6–9.) The Court addresses each argument in
turn.
1. Lack of personal involvement of Sergeants
Cecchini, Evans, and Hillman and Officer Puccia
Defendants argue that Plaintiff cannot establish personal
involvement of all Defendants because there is no evidence
that Sergeants Cecchini, Evans and Hillman, or Officer Puccia
were personally involved in Plaintiff's arrest. (Id. at 9.) In
support, Defendants argue that these defendants were likely
either involved in “the apprehension of the other assailants
who robbed and assaulted” Pujols and Agosto, “or the ensuing
investigation into the robbery.” (Id. at 9–10.) Because these
officers were not personally involved in Plaintiff's arrest,
Defendants argue that they are entitled to summary judgment
on Plaintiff's false arrest claim.
“[T]he ‘personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under [section] 1983.’ ” Victory v. Pataki, 814 F.3d
47, 67 (2d Cir. 2016) (quoting Farrell v. Burke, 449 F.3d
470, 484 (2d Cir. 2006)), as amended (Feb. 24, 2016). A
plaintiff must allege the direct or personal involvement of
each of the named defendants in the alleged constitutional
deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010);
Farrell, 449 F.3d at 484 (“It is well settled in this Circuit
that personal involvement of [the] defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under [section] 1983.” (quoting Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994))). As the Second Circuit
recently made clear, “there is no special rule for supervisory
liability,” and to find a state official liable under section
1983, “a plaintiff must plead that each [g]overnment-official
defendant, through the official's own individual actions, has
violated the Constitution.” See Tangreti v. Bachmann, 983
F.3d 609, 616 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
Being in the chain of command is not sufficient to satisfy
personal involvement as the “violation must be established
against the supervisory official directly.” Id. at 618.
*6 The Court grants Defendants’ motion for summary
judgment as to the false arrest claims against Sergeants
Cecchini, Evans, and Hillman and Officer Puccia because,
based on the undisputed facts, there is no evidence that
they participated in, and were therefore personally involved
with, Plaintiff's arrest. The existing evidence regarding
these Defendants’ involvement is minimal. Officer Puccia
testified at Plaintiff's criminal trial that he was involved with
apprehending Patterson (not Plaintiff) at the scene. (Puccia
Trial Tr. 805:1–25.) Sergeant Evans testified at the criminal
trial that he was “assigned to investigate what happened” at
the Shop. (Tr. of Sergeant Evans’ Testimony in the Supreme
Ct. for the State of New York, Kings County (“Evans Trial
Tr.”) 702:20–25, annexed to Spears Decl. as Ex. W, Docket
Entry No. 43-23.) During his deposition, when Plaintiff was
asked about why he was suing Sergeants Cecchini, Evans,
and Hillman and Officer Puccia, he responded by generally
alleging that “[c]ertain individuals” were involved in his
case, and that he “want[ed] them to be responsible for [his]
property disappearing.” (Pl.’s Dep. 174:14–25.) Plaintiff also
testified that he recognized the officers generally “from when
they arrested me,” and that he does not know “what [role]
each person ... played” in his trial or the Incident. (Id.
at 175:10–176:12.) Because Plaintiff does not contend that
Sergeants Cecchini, Evans, and Hillman, or Officer Puccia
were involved in his arrest in any way nor does he adduce
any evidence demonstrating otherwise, there is no genuine
dispute of material facts such that a jury could reasonably
hold these Defendants liable. See Provost v. City of Newburgh,
262 F.3d 146, 156 (2d Cir. 2001) (“Because the evidence
fails to show that [the officer] was aware of the facts that
made the arrest unconstitutional, the jury could not hold [the
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officer] liable on the basis of his personal involvement in the
illegal arrests.”); Reen v. City of New York, No. 16-CV-3347,
2018 WL 4608194, at *8 n.7 (E.D.N.Y. Sept. 25, 2018)
(granting summary judgment to defendant for lack of personal
involvement when defendant “neither ordered nor executed
[p]laintiff's arrest” (citing Wright, 21 F.3d at 501)); Cortes v.
City of New York, 148 F. Supp. 3d 248, 255 (E.D.N.Y. 2015)
(dismissing false arrest claim when there was no evidence that
the officer was present for or played any role in the plaintiff's
arrest).
Accordingly, the Court grants Defendants’ motion for
summary judgment as to Plaintiff's false arrest claims against
Sergeants Cecchini, Evans, and Hillman and Officer Puccia.
2. Defendants had probable cause to arrest Plaintiff
Defendants argue that “identification by a complaining
victim establishes probable cause unless the circumstances
raise doubt as to the complainant's veracity.” (Defs.’ Mem.
7 (quoting Fabrikant v. French, 691 F.3d 193, 216 (2d
Cir. 2012)).) Because Plaintiff was “clearly” identified
by Pujols when he was seven or eight feet away, “was
apprehended within a short distance of the location of the
crime within approximately [twenty] minutes,” and had
property that Pujols identified as his, Defendants assert that
the circumstances “do not raise doubt” regarding the veracity
of Pujols’ testimony. (Id. at 6–7.)
The Fourth Amendment protects individuals from
unreasonable searches and seizures by law enforcement
officials. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
A law enforcement official violates the Fourth Amendment's
protections if he or she arrests someone without probable
cause. Id. In addressing a section 1983 claim for false arrest,
courts look to “the law of the state in which the arrest
occurred” to determine if the officers had probable cause to
arrest the plaintiff for a violation of state law. Jaegly v. Couch,
439 F.3d 149, 152 (2d Cir. 2006); see also Ackerson v. City of
White Plains, 702 F.3d 15, 19–21 (2d Cir. 2012) (analyzing
whether the plaintiff's actions gave a police officer probable
cause to arrest the plaintiff for violating state law). “Under
New York law, the elements of a false arrest ... claim are: ‘(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.’ ” Hernandez v. United States, 939 F.3d
191, 199 (2d Cir. 2019) (quoting McGowan v. United States,
825 F.3d 118, 126 (2d Cir. 2016) (per curiam)).
“[P]robable cause is an absolute defense to a false arrest
claim.” Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013)
(quoting Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129,
139 (2d Cir. 2010)). “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); see also Gonzalez v. City of
Schenectady, 728 F.3d 149, 155 (2d Cir. 2013). The reviewing
court “must consider [only] those facts available to the officer
at the time of the arrest and immediately before it.” Stansbury,
721 F.3d at 89 (alteration in original) (quoting Panetta v.
Crowley, 460 F.3d 388, 395 (2d Cir. 2006)). Probable cause
need not be “predicated upon the offense invoked by the
arresting officer, or even upon an offense ‘closely related’
to the offense invoked by the arresting officer.” Jaegly, 439
F.3d at 153 (quoting Devenpeck v. Alford, 543 U.S. 146, 153,
125 S.Ct. 588, 160 L.Ed.2d 537 (2004)); id. at 154, 125 S.Ct.
588 (“[A] plaintiff is not entitled to damages under [section]
1983 for false arrest so long as the arrest itself was supported
by probable cause, regardless of whether probable cause
supported any individual charge identified by the arresting
officer at the time of arrest.”). The question is whether the
facts known to the arresting officer, at the time of the arrest,
objectively support a finding of probable cause to support the
arrest. Gonzalez, 728 F.3d at 155.
*7 “Under the collective or imputed knowledge doctrine, an
arrest or search is permissible where the actual arresting or
searching officer lacks the specific information to form the
basis for probable cause or reasonable suspicion but sufficient
information to justify the arrest or search was known by
other law enforcement officials initiating or involved with
the investigation.” United States v. Colon, 250 F.3d 130, 135
(2d Cir. 2001) (first citing United States v. Hensley, 469 U.S.
221, 230–33, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); and
then citing United States v. Canieso, 470 F.2d 1224, 1230
n.7 (2d Cir. 1972)). “Under this doctrine, a police officer
may act reasonably in relying on information from other law
enforcement officers, even if he is not personally aware of
the facts that provided the probable cause underlying the
information he received.” United States v. Fleming, No. 18-
CR-197, 2019 WL 486073, at *8 (E.D.N.Y. Feb. 6, 2019)
(citing Colon, 250 F.3d at 135); Strawn v. Holohan, No. 04-
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CV-1292, 2008 WL 65586, at *6 n.9 (N.D.N.Y. Jan. 4, 2008)
(“Under the collective knowledge doctrine, for purposes of
assessing probable cause, the knowledge of one officer is
presumed shared by all.” (citing Savino v. City of New York,
331 F.3d 63, 74 (2d Cir. 2003)).
It is well-established that a law enforcement officer has
“probable cause to arrest if he received his information from
some person, normally the putative victim or eyewitness, who
it seems reasonable to believe is telling the truth.” Martinez
v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000); see also
Williams v. City of New York, 683 F. App'x 57, 59 (2d Cir.
2017) (holding that “the circumstances known to the arresting
officers in each of the three arrests did not ‘raise doubts as to
[the victim's] veracity’ such that the officers were unjustified
in relying on [the victim's] accusations” as the basis for
probable cause (quoting Singer v. Fulton Cnty. Sheriff, 63
F.3d 110, 119 (2d Cir. 1995)); Fabrikant, 691 F.3d at 216
(“A law enforcement official has probable cause to arrest
if he received his information from some person, normally
the putative victim or eyewitness, unless the circumstances
raise doubt as to the person's veracity.” (alterations and
citations omitted)); Singer, 63 F.3d at 119 (“An arresting
officer advised of a crime by a person who claims to be
the victim, and who has signed a complaint or information
charging someone with the crime, has probable cause to effect
an arrest absent circumstances that raise doubts as to the
victim's veracity.”). Absent “circumstances that raise doubts
as to the victim's veracity, a victim's identification is typically
sufficient to provide probable cause.” Keith v. City of New
York, 641 F. App'x 63, 65 (2d Cir. 2016) (internal quotation
marks omitted) (quoting Stansbury, 721 F.3d at 90).
The undisputed facts and sworn testimony establish that
Officers Russ, Trione and Schwartz, Detective Bulzomi, and
Sergeant Diaz had probable cause to arrest Plaintiff. First, the
officers had probable cause based on Pujols’ identification of
Plaintiff as one of the Assailants. See Keith, 641 F. App'x at
65 (stating that “a victim's identification is typically sufficient
to provide probable cause”); Tortora v. City of New York, No.
15-CV-3717, 2019 WL 9100369, at *16 (E.D.N.Y. Mar. 30,
2019) (finding probable cause when complaining victim who
saw plaintiff enter her backyard identified plaintiff as one of
the perpetrators), aff'd, 804 F. App'x 35 (2d Cir. 2020). The
parties agree that on July 18, 2015, while riding with Officers
Russ and Trione, Pujols “positively identified [P]laintiff to
the officers as one of the individuals involved in the robbery
earlier that afternoon.” (Defs.’ 56.1 ¶ 28; Russ Trial Tr.
420:23–421:8; Pl.’s Dep. 52:1–53:11.) Detective Bulzomi,
assisted by Sergeant Diaz and Officer Schwartz (who were
in another vehicle) apprehended Plaintiff, (Defs.’ 56.1 ¶ 31;
NYPD Arrest Report; Bulzomi Trial Tr. 310:6–14), and an
unspecified officer arrested him, (Defs.’ 56.1 ¶ 31; Pl.’s Dep.
60:3–22). 14
*8 The circumstances do not raise doubt as to the victim's
veracity because Pujols was approximately seven to eight
feet away from Plaintiff when he identified him as one of
the Assailants and, by Plaintiff's own admission, was able to
“clearly identify” Plaintiff. (Pl.’s Dep. 61:5–18). In addition,
Pujols identified Plaintiff shortly after the robbery at the
Shop. (Defs.’ 56.1 ¶¶ 14, 25 (stating that the Assailants
entered the shop after 4 PM and apprehension of Plaintiff
occurred around 4:37 PM).) The proximity, both physically
between the complaining victim and the identifying witness,
and temporally after the robbery at the Shop, weighs in
favor of reliability of Pujols’ identification. Jay v. Conway,
No. 04-CV-5589, 2009 WL 66464, at *2 (E.D.N.Y. Jan. 9,
2009) (finding in the habeas context that an identification
from a “close distance” and “soon after the crime” are
factors indicating reliability of an identification); see also
Batson-Kirk v. City of New York, No. 07-CV-1950, 2009
WL 1505707, at *7 (E.D.N.Y. May 28, 2009) (finding
probable cause existed when the police officer and eyewitness
“canvassed the vicinity of the assault in an effort to identify
the assailants” one week after an assault and the eyewitness
positively identified the plaintiff three times prior to his
arrest).
Although the parties dispute the precise location of Plaintiff's
arrest, the exact location of the arrest does not raise doubt as
to the veracity of Pujols’ identification. Plaintiff contends that
he was apprehended in front of a Foot Locker store on Liberty
Avenue, (Pl.’s Dep. 46:25–47:2), and Defendants contend that
Plaintiff was apprehended at the intersection of Glen Street
and Euclid Avenue, (Bulzomi Trial Tr. 310:11–14; Defs.’
Mem. 5). These locations are “approximately half a mile”
apart from each other, (Defs.’ Mem. 5), which does not cast
doubt upon Pujols’ identification. De Michele v. City of New
York, No. 09-CV-9334, 2012 WL 4354763, at *11 (S.D.N.Y.
Sept. 24, 2012) (finding that victim identifications of plaintiff
two to three hours after a robbery at a location approximately
four miles away does not render the identifications “so
defective that probable cause could not reasonably be based”
on them (quoting Williams v. City of New York, 478 F.3d
76, 93 (2d Cir. 2007))). In addition, given the identification
of Plaintiff by the victim, the officers were not obligated
to investigate Plaintiff's claim that he was at Foot Locker
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at the time of the robbery based on Plaintiff's claim that
he was. Tortora, 2019 WL 9100369, at *18 (finding that
an officer was “under no obligation to investigate or rely
upon” assertions that plaintiff was somewhere else at the
time of the arrest); Nelson v. Hernandez, 524 F. Supp. 2d
212, 224 (E.D.N.Y. 2007) (finding the plaintiff's claim that
probable cause dissipated meritless because the police have
no obligation to investigate a defendant's alibi and any failure
to do so would not have vitiated the existence of probable
cause (citations and internal quotation marks omitted)); see
also Celestin v. City of New York, 581 F. Supp. 2d 420, 432
(E.D.N.Y. 2008) (finding that a detective “was not required
to investigate [the plaintiff's] alibi or exhaustively search for
other suspects before acting on the facts at hand” because
“once the evidence establishe[d] probable cause, an officer is
not required to continue investigating, sifting and weighing
information, nor is an officer obligated to investigate the
suspect's plausible claims of innocence”).
Because Pujols’ identification of Plaintiff supports probable
cause for his arrest, 15 see Biton v. City of New York, No.
17-CV-3981, 2020 WL 7024363, at *4 (E.D.N.Y. Nov. 30,
2020) (“[A] victim's identification of an assailant is, by
itself, sufficient ‘probable cause to effect an arrest absent
circumstances that raise doubts as to the victim's veracity.’
” (quoting Angevin v. City of New York, 204 F. Supp. 3d 469,
479 (E.D.N.Y. 2016))), the Court grants Defendants’ motion
for summary judgment as to Plaintiff's false arrest claim. 16
ii. Unlawful stop and search
*9 Defendants argue that Plaintiff's claim for an unlawful
stop and search similarly fails because the existence of
probable cause to arrest “necessarily renders the stop and
search incident to that arrest lawful.” (Defs.’ Mem. 9 (citing
Cooper v. Dieugenia, No. 14-CV-6136, 2017 WL 818367, *3
n.5 (E.D.N.Y. Feb. 27, 2017)).)
Because the undisputed facts demonstrate that Plaintiff's
search was conducted incident to his lawful arrest, (see
Defs.’ 56.1 ¶ 37), the Court finds that the stop and search
were also lawful. See Virginia v. Moore, 553 U.S. 164,
176, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (“We have
recognized, however, that officers may perform searches
incident to constitutionally permissible arrests in order to
ensure their safety and safeguard evidence.” (citing United
States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d
427 (1973)); Barnes v. Carolan, 819 F. App'x 51, 53 (2d Cir.
2020) (“A search incident to arrest is lawful where the officer
reasonably believed he had probable cause, regardless of
whether the officer actually intended to arrest the suspect (or
simply issue a ticket or violation) prior to the search.” (citing
United States v. Diaz, 854 F.3d 197, 205–09 (2d Cir. 2017));
Walker v. City of New York, No. 15-CV-500, 2017 WL
2799159, at *6 (E.D.N.Y. June 27, 2017) (“Because there was
probable cause for plaintiff's arrest, the search of his person
was lawful.” (citing Virginia, 553 U.S. at 176–77, 128 S.Ct.
1598)); Cooper, 2017 WL 818367, at *3 n.5, *8 (“The parties’
arguments regarding the legality of the stop and search rise
or fall with the probable cause determination relating to [the]
[p]laintiff's false arrest claim.”); Bryant v. Serebrenik, No. 15-
CV-3762, 2016 WL 6426372, at *2 n.2, 3 (E.D.N.Y. Oct.
28, 2016) (denying summary judgment on both plaintiffs’
false arrest and unlawful stop and search claims because
defendants failed to show that undisputed facts established
probable cause to arrest, and plaintiffs were stopped and
searched after, and incident to, their arrests); Morris v. City
of New York, 2013 WL 5781672, at *8 (E.D.N.Y. Oct. 28,
2013) (“[P]robable cause to arrest supported a search of [the
plaintiff] herself and of the areas within her reach at the time
of arrest.”), aff'd sub nom. Morris v. Silvestre, 604 F. App'x
22 (2d Cir. 2015).
Moreover, the undisputed facts also demonstrate that, for the
reasons stated with respect to Plaintiff's false arrest claim,
Sergeants Cecchini, Evans, and Hillman and Officer Puccia
were not personally involved with Plaintiff's search incident
to his arrest. There is no evidence in the record that these
Defendants participated in, and were therefore personally
involved with, Plaintiff's search incident to his arrest. (See,
e.g., Pl.’s Dep. 174:14–25 (contending that he does not know
what role each officer played in his trial or the Incident);
Puccia Trial Tr. 805:1–25 (stating that he was involved
with apprehending Patterson at the scene); Evans Trial Tr.
702:20–25 (stating that he was “assigned to investigate what
happened” at the Shop); Bulzomi Trial Tr. 311:15–20, 313:3–
14 (indicating that he was the officer who searched Plaintiff
incident to his arrest).) Because Plaintiff does not contend
that Sergeants Cecchini, Evans, and Hillman or Officer Puccia
were involved in his search incident to his arrest in any way
nor does he adduce any evidence demonstrating otherwise,
there is no genuine dispute of material fact such that a jury
could reasonably hold these Defendants liable. See Provost,
262 F.3d at 156.
*10 Accordingly, because Pujols’ identification of Plaintiff
supports probable cause for his arrest and because the
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evidence does not indicate a genuine dispute as to whether
Defendants Sergeants Cecchini, Evans, and Hillman or
Officer Puccia were involved in Plaintiff's search incident to
his arrest, the Court grants Defendants summary judgment as
to Plaintiff's unlawful stop and search claim.
iii. Malicious prosecution
Defendants argue that they are entitled to summary judgment
on Plaintiff's malicious prosecution claim because (1)
Plaintiff cannot establish personal involvement for all
Defendants and (2) continuing probable cause existed for
Plaintiff's prosecution. (Defs.’ Mem. 10–11.) The Court
addresses each argument in turn.
1. Lack of personal involvement of Sergeants Diaz
and Hillman, and Officers Schwartz and Trione
Defendants argue that Plaintiff cannot establish personal
involvement of all Defendants as required under section
1983 because there is no evidence that Sergeants Diaz and
Hillman and Officers Schwartz and Trione were “involved in
the initiation or continuation of Plaintiff's prosecution.” (Id.
at 11.) Defendants assert that only Sergeants Cecchini and
Evans, Detective Bulzomi, and Officers Russ and Puccia were
personally involved because Officer Russ signed the criminal
court complaint against Plaintiff and Detective Bulzomi,
Officers Russ and Puccia, and Sergeants Evans and Cecchini
testified at Plaintiff's criminal trial. (Id.)
As discussed above, defendants in alleged constitutional
deprivations must be personally involved as “a prerequisite
to an award of damages under [section] 1983.’ ” Victory, 814
F.3d at 67 (quoting Farrell, 449 F.3d at 484).
The Court grants Defendants’ motion for summary judgment
as to the malicious prosecution claim against Sergeants Diaz
and Hillman and Officers Schwartz and Trione because
there is no evidence that they participated in, and were
therefore personally involved with, Plaintiff's prosecution.
As Defendants accurately note, while it is undisputed that
Sergeants Cecchini and Evans, Detective Bulzomi, and
Officers Russ and Puccia testified at Plaintiff's trial, (see
Defs.’ Mem. 11; Russ Trial Tr.; Evans Trial Tr.; Bulzomi
Trial Tr.; Puccia Trial Tr.), there is no evidence in the record
indicating that Sergeants Diaz and Hillman, and Officers
Schwartz or Trione played any role in Plaintiff's prosecution.
During his deposition, when Plaintiff was asked why he
was suing these officers, he responded by generally alleging
that “[c]ertain individuals” were involved in his case, and
that he “want[ed] them to be responsible for [his] property
disappearing.” (Pl.’s Dep. 174:14–25.) Plaintiff also testified
that he recognized the officers generally “from when they
arrested me,” and that he does not know “what [role]
each person ... played” in his trial or the Incident. (Id. at
175:10–15, 177:7–15.) Because Plaintiff does not contend
that Sergeants Diaz and Hillman, and Officers Schwartz
and Trione played any role in Plaintiff's prosecution, there
is no genuine dispute of material facts such that a jury
could reasonably hold these Defendants liable. 17 See, e.g.,
Barber v. Ruzzo, No. 10-CV-1198, 2011 WL 4965343, at
*2 (N.D.N.Y. Oct. 19, 2011) (“Simply stating that [the
defendants] were ‘personally and actively involved in the
continuation of criminal proceedings against [a plaintiff],’ is
grossly insufficient to establish personal involvement in the
actual prosecution.” (alterations in original)); Celestin, 581 F.
Supp. 2d at 429 (finding no personal involvement in plaintiff's
prosecution when defendants merely interviewed witnesses,
collected evidence, and passed on information learned to
other officers who are participating in the investigation).
*11 Accordingly, the Court grants Defendants’ motion
for summary judgment as to Plaintiff's claim for malicious
prosecution against Sergeants Diaz and Hillman and Officers
Schwartz and Trione.
2. Continuing probable cause
Defendants argue they are entitled to summary judgment on
Plaintiff's malicious prosecution claim because continuing
probable cause existed for Plaintiff's prosecution. (Defs.’
Mem. 10–11.) In support, Defendants contend that continuing
probable cause existed because Pujols never recanted his
identification of Plaintiff and “again conclusively identified
Plaintiff as one of the [A]ssailants at [P]laintiff's criminal
trial,” because Pujols and Agosto “signed stolen property
reports listing as their own property that was recovered from
[P]laintiff's person,” and because Plaintiff's indictment by a
grand jury established a presumption of probable cause for his
prosecution. (Id. at 10–11 & n.3.)
The Second Circuit has clarified that “federal law defines
the elements of a [section] 1983 malicious prosecution claim,
and that a [s]tate's tort law serves only as a source of
persuasive authority rather than binding precedent in defining
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these elements.” Lanning v. City of Glens Falls, 908 F.3d
19, 25 (2d Cir. 2018). To prevail on a section 1983 claim
for malicious prosecution, a Plaintiff is “required to show
‘a seizure or other perversion of proper legal procedures
implicating [his] personal liberty and privacy interests under
the Fourth Amendment,’ ” id. at 24 (alteration in original)
(quoting Washington v. County of Rockland, 373 F.3d 310,
316 (2d Cir. 2004)), and “that criminal proceedings were
initiated or continued against him, with malice and without
probable cause, and were terminated in his favor,” id. (first
citing Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir.
2016); and then citing Swartz, 704 F.3d at 111–12). Under
section 1983, a plaintiff is required to show an “affirmative
indication[ ] of innocence to establish ‘favorable termination.’
” Id. at 25.
“[T]he existence of probable cause is a complete defense to a
claim of malicious prosecution in New York, and indictment
by a grand jury creates a presumption of probable cause.”
Lewis v. City of New York, 591 F. App'x 21, 22 (2d Cir. 2015)
(alteration in original) (quoting Manganiello v. City of New
York, 612 F.3d 140, 161 (2d Cir. 2010))). A plaintiff may
overcome the presumption of probable cause by presenting
evidence that “the indictment was the product of fraud,
perjury, the suppression of evidence by the police, or other
police conduct undertaken in bad faith.” Bermudez v. City of
New York, 790 F.3d 368, 377 (2d Cir. 2015); Manganiello,
612 F.3d at 162. Raising doubts about probable cause is
insufficient. Ramashwar v. City of New York, 231 F. App'x 26,
27 (2d Cir. 2007) (noting that plaintiff “raised some questions
of fact” that “merely tend[ed] to show the absence of probable
cause” (citing Colon, 60 N.Y.2d at 83, 468 N.Y.S.2d 453, 455
N.E.2d 1248)); Banno v. City of New York, No. 06-CV-2270,
2015 WL 845709, at *5 (S.D.N.Y. Feb. 25, 2015) (finding that
plaintiff did not overcome the presumption where he “merely
assert[ed] that for the same reason[s] there [was] a question
of fact as to probable cause for the false arrest claim” (citing
Colon, 60 N.Y.2d at 83, 468 N.Y.S.2d 453, 455 N.E.2d
1248)); Dukes v. City of New York, 879 F. Supp. 335, 343
(S.D.N.Y. 1995) (finding that plaintiff could not overcome the
presumption by “merely claim[ing] that [the officer] failed
to interview witnesses and to discover additional evidence”).
Likewise, where a plaintiff offers merely his version of events
to rebut the presumption, this is nothing more than “mere
‘conjecture’ and ‘surmise’ that [the plaintiff's] indictment was
procured as a result of conduct undertaken by the defendants
in bad faith,” and is insufficient. Savino, 331 F.3d at 73
(quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991)); see also Debrosse v. City of New York, 739 F. App'x
48, 50 (2d Cir. 2018) (“We have explained that a malicious
prosecution plaintiff's ‘mere conjecture and surmise’ are
insufficient to overcome the presumption of probable cause
resulting from the indictment.”); Peterson v. Regina, 935 F.
Supp. 2d 628, 643 (S.D.N.Y. 2013) (“[Plaintiff] has supplied
only his suspicions of impropriety as proof of the defendants’
misconduct before the grand jury.”).
*12 It is undisputed that Plaintiff was indicted by a grand
jury on August 13, 2015. (Defs.’ 56.1 ¶¶ 53–54; Pl.’s Kings
County Indictment; Pl.’s Dep. 103:3–9.) Plaintiff was indicted
for four counts of robbery in the first degree, four counts
of robbery in the second degree, two counts of robbery in
the third degree, three counts of burglary in the first degree,
four counts of robbery in the second degree, one count of
robbery in the third degree, assault in the second degree, two
counts of assault in the third degree, two counts of menacing
in the second degree, two counts of petit larceny, and two
counts of criminal possession of stolen property in the fifth
degree. (Pl.’s Kings County Indictment.) Plaintiff was tried
for charges of two counts of robbery in the first degree,
burglary in the first degree, two counts of robbery in the
second degree, burglary in the third degree, and two counts
of criminal possession of stolen property in the fifth degree.
(Defs.’ 56.1 ¶¶ 53–54; Excerpts from Pl.’s Tr. Proceedings.)
Accordingly, the presumption of probable cause attaches to
all of the charges for which Plaintiff was tried. See Soto v.
City of New York, 132 F. Supp. 3d 424, 453 (E.D.N.Y. 2015)
(“The [g]rand [j]ury indicted [p]laintiff on multiple counts
of robbery in the second degree, burglary in the first and
second degrees, and one count each of attempted assault in the
first degree, assault in the second degree, kidnapping in the
second degree, and unlawful imprisonment in the first degree,
creating a presumption of probable cause as to each.”).
Plaintiff has adduced no evidence from which a reasonable
juror could conclude that Defendants procured his indictment
through fraud, perjury, or other bad faith. In the Complaint,
Plaintiff alleges that Defendants “offer[ed] false testimony
to the Kings County Grand Jury” which resulted in his
indictment. (Compl. ¶ 50.) However, Plaintiff does not offer
any evidence to support this claim. It is undisputed that
Plaintiff was not present before the grand jury and therefore
he could not witness any false testimony being provided, (see
Pl.’s Dep. 114:5–11), and Plaintiff does not provide evidence,
such as grand jury minutes, to support his allegations. See
Soto, 132 F. Supp. 3d at 456 (finding that presumption of
probable cause created by indictment was not defeated when
the “[p]laintiff merely surmises there was bad faith” and “has
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neither sought nor produced the grand jury minutes in this
matter precluding any further evaluation of what occurred
before the grand jury”).
In addition, because Defendants had probable cause to
arrest Plaintiff based on Pujols’ identification, that probable
cause also defeats Plaintiff's malicious prosecution claim.
See Tortora, 2019 WL 9100369, at *20 (“Even though the
standard for probable cause in the context of a malicious
prosecution claim is ‘slightly higher’ than the standard for
a false arrest claim, a victim's identification of the alleged
perpetrator and description of the alleged conduct is generally
sufficient to support probable cause and defeat a malicious
prosecution claim in the absence of any facts dissipating
probable cause after an arrest.” (quoting Keith, 641 F. App'x
67)); id. (“Although the probable cause standard in the
malicious prosecution context is slightly higher than the
standard for false arrest cases, information from an identified
citizen accusing another individual of the commission of a
specific crime is [generally still] sufficient to provide the
police with probable cause.” (alteration in original) (quoting
Keith, 641 F. App'x at 67)).
Accordingly, the Court grants Defendants’ motion for
summary judgment as to Plaintiff's claim for malicious
prosecution.
iv. Excessive force
Defendants argue that they are entitled to summary judgment
on Plaintiff's excessive force claim because (1) Plaintiff
cannot establish personal involvement for all Defendants, (2)
Plaintiff did not suffer any injuries, and (3) any force utilized
against Plaintiff was objectively reasonable. (Defs.’ Mem.
11–12.) The Court addresses each argument in turn.
1. Lack of personal involvement of Sergeants
Cecchini, Evans, and Hillman and Officer Puccia
Defendants argue that Plaintiff cannot establish personal
involvement of all Defendants as required under section
1983 because there is no evidence that Sergeants Cecchini,
Evans, and Hillman, and Officers Puccia, Russ, and Trione
were “personally involved in any use of force against
[P]laintiff.” (Id. at 14.) Defendants assert that because these
officers were “involved in either the apprehension of the other
[A]ssailants ... or the processing of [P]laintiff's arrest” at the
precinct, they are entitled to summary judgment on Plaintiff's
excessive force claim as it pertains to these defendants. (Id.)
*13 As discussed above, defendants in alleged constitutional
deprivations must be personally involved as “a prerequisite
to an award of damages under [section] 1983.’ ” Victory, 814
F.3d at 67 (quoting Farrell, 449 F.3d at 484).
The Court grants Defendants’ motion for summary judgment
as to the excessive force claim against Sergeants Cecchini,
Evans and Hillman and Officer Puccia because, based on the
undisputed facts, there is no evidence that they participated
in, and were therefore personally involved with, Plaintiff's
arrest as Plaintiff contends that Defendants used excessive
force while effectuating his arrest. (See Compl. ¶¶ 29–30
(alleging that the officers forced Plaintiff to “lie face down in
front of the sneaker store”); Pl.’s Dep. 60:13–22 (stating that
the officers “tackled” Plaintiff to the ground and handcuffed
him).) For the reasons discussed above, Sergeants Cecchini,
Evans, and Hillman and Officer Puccia were not personally
involved with Plaintiff's arrest and therefore could not have
engaged in use of any force against Plaintiff, much less
excessive force as alleged. (See Puccia Trial Tr. 805:1–25;
Evans Trial Tr. 702:20–25; Pl.’s Dep. 174:14–25.)
However, drawing all inferences in favor of Plaintiff, there
is a dispute as to whether Officers Russ and Trione were
personally involved with Plaintiff's arrest and therefore as to
whether they used excessive force to effectuate his arrest.
Although it is undisputed that Officers Russ and Trione
were in the car with Pujols when he identified Plaintiff, (see
Defs.’ 56.1 ¶ 28; Russ Trial Tr. 420:23–421:8; Pl.’s Dep.
52:1–53:11), Plaintiff stated that he believes Officer Russ
was an arresting officer because his name was on his arrest
paperwork, (Pl.’s Dep. 173:2–23). While there is no explicit
evidence indicating that Officer Trione directly participated
in any use of force against Plaintiff during his arrest, because
Officers Trione and Russ were together minutes before the
arrest, (Russ Trial Tr. 420:23–421:8), and Officer Russ’ name
appears on Plaintiff's arrest paperwork, a jury could find
that Officer Trione was, at the very least, present during the
alleged use of force and therefore personally involved. See
Walker v. Raja, No. 17-CV-5202, 2020 WL 606788, at *5
(E.D.N.Y. Feb. 7, 2020) (“In the absence of evidence that
[the defendant officers] were not present — evidence that the
[c]ourt presumes [d]efendants have access to and would have
produced if it existed — the [c]ourt finds that the presence of
these officers is, at a minimum, disputed.”).
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Accordingly, the Court finds that Sergeants Cecchini, Evans,
and Hillman and Officer Puccia were not personally involved
in the alleged use of excessive force, but a jury could
reasonably find that Officers Russ and Trione were personally
involved based on their likely presence during Plaintiff's
arrest.
2. Reasonableness of force used and injury
Defendants argue that Plaintiff's excessive force claim fails
because the force used by Defendants to effectuate the
arrest was objectively reasonable given that they had reason
to believe Plaintiff could be armed as Plaintiff had been
identified as a suspect in an “armed assault and robbery just
minutes earlier.” (Defs.’ Mem. 12.) In addition, Defendants
contend that while the parties dispute the specifics of
Plaintiff's apprehension, even accepting Plaintiff's version
of events to be true, Plaintiff was “actively resisting before
[D]efendants utilized any force” and it is undisputed that
Defendants only used force to effectuate his arrest. (Id.)
*14 “The Fourth Amendment prohibits the use of
unreasonable and therefore excessive force by a police
officer” in the course of an arrest. Tracy v. Freshwater, 623
F.3d 90, 96 (2d Cir. 2010) (citing Graham v. Connor, 490
U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
Because the Fourth Amendment's test is one of “objective
reasonableness,” the inquiry is fact-specific and requires a
balancing of various factors. Id. When determining whether
the force applied was “excessive,” a court must analyze the
totality of the circumstances facing the officer and consider:
“(1) the nature and severity of the crime leading to the arrest,
(2) whether the suspect poses an immediate threat to the
safety of the officer or others, and (3) whether the suspect
was actively resisting arrest or attempting to evade arrest
by flight.” Id. (first citing Graham, 490 U.S. at 396, 109
S.Ct. 1865; and then citing Jones v. Parmley, 465 F.3d 46,
61 (2d Cir. 2006)); see also Nimkoff v. Dollhausen, 751
F. Supp. 2d 455, 463 (E.D.N.Y. 2010) (“[T]he fact finder
must consider the totality of the circumstances, including
‘the crime committed, its severity, the threat of danger to the
officer and society, and whether the suspect is resisting or
attempting to evade arrest.’ ” (quoting Thomas v. Roach, 165
F.3d 137, 143 (2d Cir. 1999))). However, “[n]ot every push
or shove, even if it may later seem unnecessary in the peace
of a judge's chambers, violates the Fourth Amendment.”
Tracy, 623 F.3d at 96 (quoting Graham, 490 U.S. at 397,
109 S.Ct. 1865); see also Graham, 490 U.S. at 396, 109
S.Ct. 1865 (“Our Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” (citing Terry
v. Ohio, 392 U.S. 1, 22–27, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968))). Courts must therefore “evaluate the record ‘from
the perspective of a reasonable officer at the scene, rather
than with the 20/20 vision of hindsight.’ ” Tracy, 623 F.3d
at 96 (quoting Jones, 465 F.3d at 61). “[G]ranting summary
judgment against a plaintiff on an excessive force claim is not
appropriate unless no reasonable factfinder could conclude
that the officers’ conduct was objectively unreasonable.”
Concepcion v. N.Y.C. Dep't of Educ., ––– F. App'x ––––, ––––,
No. 19-CV-1693, 2020 WL 7018211, at *2 (2d Cir. Nov. 30,
2020) (quoting Amnesty Am. v. Town of West Hartford, 361
F.3d 113, 123 (2d Cir. 2004)).
“[T]he extent of injury” is a “relevant” but non-dispositive
factor in evaluating an excessive force claim. Abreu v.
Nicholls, 368 F. App'x 191, 193 (2d Cir. 2010). “[I]f the
force used was unreasonable and excessive, the plaintiff may
recover even if the injuries inflicted were not permanent or
severe.” Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987).
“[A] very minimal injury” may therefore be “ ‘sufficient to
trigger potential liability’ for excessive force” under the right
circumstances. Castro v. County of Nassau, 739 F. Supp.
2d 153, 176–77 (E.D.N.Y. 2010); see also Hayes v. N.Y.C.
Police Dep't, 212 F. App'x 60, 62 (2d Cir. 2007) (“[W]e have
permitted claims to survive summary judgment where the
only injury alleged is bruising.” (citing Maxwell v. City of New
York, 380 F.3d 106, 108 (2d Cir. 2004))).
Although excessive force is a fact-intensive issue, the Court
finds that summary judgment is warranted on Plaintiff's
excessive force claim because, even accepting as true the
most favorable version of Plaintiff's testimony, no reasonable
jury could find that the officers’ conduct was objectively
unreasonable. The parties dispute (1) whether Plaintiff
resisted arrest in some form and (2) whether force was
used during Plaintiff's apprehension. Accepting the most
favorable version of Plaintiff's description of his encounter
with Defendants to be true, Plaintiff was apprehended
by Defendants outside of Foot Locker when Defendants
attempted to handcuff him, but he resisted by “brushing”
the officers off while they attempted to restrain him and by
putting his arm back down to his side each time officers
attempted to grab it. 18 (Pl.’s Dep. 61:22–25.) Plaintiff was
“tackled to the ground and then ... handcuffed and put ... in the
cop car.” (Id. at 60:21–22.) Based on the facts as construed
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in Plaintiff's favor, an evaluation of the relevant factors, and
the totality of the circumstances, the Court concludes that a
reasonable juror could not find that Defendants’ actions in
tackling Plaintiff were excessive.
First, the Court concludes that the severity of the crime —
alleged armed robbery — constitutes a serious and dangerous
crime under the circumstances and it was objectively
reasonable for Defendants to view Plaintiff as an “immediate
threat to the safety of the officers and others” given his
undisputed positive identification by the complaining victim.
Tracy, 623 F.3d at 96; see also Burks v. Perrotta, No. 13-
CV-5879, 2015 WL 2340641, at *4 (S.D.N.Y. May 15, 2015)
(“It is indisputable that the crime which led to [p]laintiff's
arrest — armed robbery — was extremely serious.”); Gil v.
County of Suffolk, 590 F. Supp. 2d 360, 371–72 (E.D.N.Y.
2008) (“[T]here is no genuine issue of material fact as
to whether it was objectively reasonable for the defendant
arresting officers to believe that a suspect in an armed robbery
posed a danger to them and to others ....”); Ferguson v.
City of New York, No. 17-CV-4090, 2018 WL 3233131,
at *6 (E.D.N.Y. July 2, 2018) (suggesting that a victim
identification of plaintiff as a robber in an armed robbery may
justify the use of some degree of force to apprehend). As
discussed above, the undisputed facts confirm that Plaintiff
was identified by Pujols as one of the Assailants in the armed
robbery that had occurred minutes before and that the officers
relied on Pujols’ identification when apprehending Plaintiff.
(Defs.’ 56.1 ¶ 28; Russ Trial Tr. 420:23–421:8; Pl.’s Dep.
52:1–53:11.)
*15 Taking the most favorable version of Plaintiff's facts
to be true, Plaintiff's conduct amounted to “actively resisting
arrest” and thus establishes that Defendants’ tackling of
Plaintiff was reasonable. See Tracy, 623 F.3d at 96. Assuming
Plaintiff's version of events to be true, Defendants pushed
or tackled Plaintiff to the ground after they asked Plaintiff
to “put [his] hands behind [his] back,” because Plaintiff,
by his own admission, was attempting to resist arrest and
prevent Defendants from handcuffing him. (See Pl.’s Dep.
60:3–17, 62:1–4.) Courts in this circuit have found officers’
use of force to effectuate an arrest justified when a suspect is
resisting arrest by contorting their body or otherwise making
it difficult to handcuff them. Husbands ex rel. Forde v. City
of New York, 335 F. App'x 124, 129 (2d Cir. 2009) (finding a
single punch to subdue plaintiff when the plaintiff “was doing
something with his hands that made it difficult to handcuff
him” when plaintiff's arrest followed gunshots coming from
his direction objectively reasonable); Rolkiewicz v. City of
New York, 442 F. Supp. 3d 627, 646 (S.D.N.Y. 2020) (finding
officers’ use of force by striking plaintiff with metal flashlight
was objectively reasonable when plaintiff was resisting arrest
by “stiffening his arms, throwing his arms back, and generally
making it difficult to handcuff him”).
In addition, tackling or shoving a plaintiff down to the
ground can be an objectively reasonable response to a plaintiff
resisting arrest. Kalfus v. N.Y. & Presbyterian Hosp., 706
F. Supp. 2d 458, 472–73 (S.D.N.Y. 2010) (finding that the
video of plaintiff's arrest for trespass showed that the plaintiff
was “clearly resisting” as he refused to stand and “clearly
pushed back with his weight” when officers put him face
down on a concrete slab to handcuff him and, thus, the
officers used “only objectively reasonable force under the
circumstances”), aff'd, 476 F. App'x 877 (2d Cir. 2012); cf.
Lupinacci v. Pizighelli, 588 F. Supp. 2d 242, 250 (D. Conn.
2008) (finding tackling of innocent bystander objectively
unreasonable because “an objective officer would not think it
reasonable to tackle an individual to the sidewalk, without in
any way first asking the individual to voluntarily submit to an
arrest.”). For example, in Chaney v. City of Albany, a plaintiff
claimed that he was subjected to excessive force when officers
tackled him to the ground and handcuffed him as he tried
to enter a store. No. 16-CV-1185, 2019 WL 3857995, at
*10 (N.D.N.Y. Aug. 16, 2019). In that case, the court found
that tackling the plaintiff was objectively reasonable because
it was undisputed that the defendant officers had probable
cause to believe that plaintiff had committed drug crimes,
that the officers “did not know whether [p]laintiff and his
associates were armed,” and that there was no evidence
that plaintiff suffered any injury resulting from defendant
officers’ actions. 19 Id. at *10. Similarly, in Young v. Cabrera,
a plaintiff claimed excessive force when defendant officers
“threw [plaintiff] to the ground” in attempting to effectuate his
arrest. No. 18-CV-3028, 2020 WL 7042759, at *5 (E.D.N.Y.
Nov. 30, 2020). Plaintiff had been identified as the perpetrator
of a knifepoint robbery by the complaining victim who
identified him “from the back seat of the police car.” Id. at
*1. The court found that the officers acted reasonably under
the circumstances when they tackled the plaintiff because the
plaintiff was identified as the perpetrator of a serious crime
and likely possessed a weapon. Id. at *4–5.
*16 Under the circumstances of this case, like the cases
discussed above, even accepting the most favorable version
of Plaintiff's testimony to be true, a reasonable jury could
not find in Plaintiff's favor because Defendants’ “tackling
[of Plaintiff] to the ground” was warranted — Plaintiff was
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identified by the complaining victim as one of the Assailants
in the armed robbery and resisted arrest by “brushing” the
officers off while they attempted to restrain him.
Accordingly, the Court finds that, under the totality of the
circumstances, there are no disputed issues of fact that
preclude a finding at the summary judgment stage that
Defendants use of force, if any, was objectively reasonable. 20
v. Fair trial
Defendants argue that they are entitled to summary judgment
on Plaintiff's fair trial claim because Plaintiff (1) cannot
establish that Sergeants Cecchini, Diaz, Evans, and Hillman,
and Officers Puccia, Schwartz, and Trione were personally
involved in any alleged fabrication of evidence and (2)
“cannot establish that any evidence was fabricated or that he
suffered any resulting deprivation of liberty.” (Defs.’ Mem.
14.) The Court addresses each argument in turn.
1. Lack of personal involvement of Sergeants
Cecchini, Diaz, Evans, and Hillman, and
Officers Puccia, Schwartz, and Trione
Defendants argue that Plaintiff cannot establish personal
involvement of all Defendants as required under section
1983 because there is no evidence that Sergeants Cecchini,
Diaz, Evans, and Hillman, and Officers Puccia, Schwartz,
and Trione were personally involved in any fabrication of
evidence. (Id. at 17, 88 S.Ct. 1868.) In support, Defendants
argue that because there is no evidence that any defendant
other than Detective Bulzomi and Officer Russ handled
processing of Plaintiff's arrest or the collection and handling
of the property Defendants allege they recovered from
Plaintiff, no reasonable jury could find that Sergeants
Cecchini, Diaz, Evans, and Hillman, and Officers Puccia,
Schwartz, and Trione were personally involved in fabricating
evidence. (Id.)
As discussed above, defendants in alleged constitutional
deprivations must be personally involved as “a prerequisite
to an award of damages under [section] 1983.’ ” Victory, 814
F.3d at 67 (quoting Farrell, 449 F.3d at 484).
*17 The Court grants Defendants’ motion for summary
judgment as to the fair trial claim against Sergeants Cecchini,
Diaz, Evans, and Hillman, and Officers Puccia, Schwartz, and
Trione because the undisputed facts do not demonstrate that
they participated in, and therefore there is no evidence that
they were personally involved with, the alleged fabrication
of evidence. As Defendants argue, it is undisputed that
Detective Bulzomi searched Plaintiff incident to his arrest
and located several cellular telephones and a wallet. (Defs.’
56.1 ¶¶ 37–38; Pl.’s Dep. 58:23–59:23.) It is also undisputed
that at the precinct, Officer Russ took several photographs
of the property recovered from Plaintiff and returned the
property recovered and identified as stolen to Pujols and
Agosto. (Defs.’ 56.1 ¶ 48; Russ Trial Tr. 428:17–21.) The
only evidence of any other police officers’ involvement is
that Officer Puccia apprehended Patterson and made a list of
items recovered from him. (Defs.’ 56.1 ¶¶ 41–42; Puccia Trial
Tr. 805:5–21.) However, Officer Puccia's involvement with
Patterson does not implicate Officer Puccia's involvement
with Plaintiff. See Cortes, 148 F. Supp. 3d at 255 (finding
that defendant officer was not personally involved when there
was no evidence that defendant had anything to do with the
plaintiff's arrest and arrived after the arrest occurred).
Accordingly, the Court grants Defendants’ motion for
summary judgment based on lack of personal involvement as
to Plaintiff's claim for denial of his right to a fair trial against
Sergeants Cecchini, Diaz, Evans, and Hillman, and Officers
Puccia, Schwartz, and Trione. See Demosthene v. City of New
York, No. 14-CV-816, 2018 WL 10072931, at *8 (E.D.N.Y.
July 20, 2018) (“Because [p]laintiff has not presented facts
that could show [defendants’] personal involvement in the
alleged evidence fabrication ... he cannot succeed on this
claim.”), report and recommendation adopted, No. 14-
CV-816, 2019 WL 3992868 (E.D.N.Y. Aug. 16, 2019), aff'd,
831 F. App'x 530 (2d Cir. 2020).
2. Fabrication of evidence
Defendants argue that they are entitled to summary judgment
on Plaintiff's fair trial claim because Plaintiff does not
substantiate his claims that Defendants falsified evidence.
(Defs.’ Mem. 15–16.) In support, Defendants argue that this
Court has previously held that “summary judgment must be
awarded to the defendants if nothing in the record suggests
that defendants fabricated evidence, such that no reasonable
juror could conclude as much.” (Id. (citing Soto, 132 F. Supp.
3d at 457–58).) Defendants argue that summary judgment in
their favor is warranted because (1) the record is “devoid of
any evidence suggesting that the evidence was fabricated,” (2)
Plaintiff is judicially estopped from disputing that Plaintiff
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was in possession of Pujols’ driver's license at the time of
his arrest, 21 (3) the objective evidence does not establish
that any defendant alleged that a gold chain was found on
Plaintiff as Plaintiff claims, and (4) Plaintiff cannot credibly
dispute the recovery of Pujols’ cellular telephones from his
person. (Id. at 15–16, 88 S.Ct. 1868.) In addition, Defendants
assert that Plaintiff did not suffer any deprivation of liberty
because Plaintiff's arrest was supported by independent
probable cause and “there is no evidence in the record
demonstrating that any of the allegedly fabricated property
ultimately affected the prosecutor's decision to pursue charges
or prosecute plaintiff.” (Id. at 16–17, 88 S.Ct. 1868.)
To establish a fair trial claim based on fabrication of evidence,
a plaintiff must show 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.” 22 Ganek v. Leibowitz, 874 F.3d 73, 90 (2d Cir.
2017) (quoting Garnett v. Undercover Officer C0039, 838
F.3d 265, 279 (2d Cir. 2016)). To satisfy the third element,
the fabricated evidence need not actually reach a jury. The
Second Circuit only requires “a showing ... that the [false]
information would likely influence the jury if it arrived at
a jury.” Cook v. City of New York, 243 F. Supp. 3d 332,
351 (E.D.N.Y. 2017) (alteration in original) (quoting Garnett
v. Undercover Officer C0039, No. 13-CV-7083, 2015 WL
1539044, at *8 (S.D.N.Y. Apr. 6, 2015), aff'd, 838 F.3d 265,
279 (2d Cir. 2016)). Because materiality (element three) and
causation (element five) are two distinct elements, “the fact
that allegedly fabricated evidence would be inadmissible at
trial by itself is not a bar to the claim.” Id. (quoting Soomro v.
City of New York, 174 F. Supp. 3d 806, 816 (S.D.N.Y. 2016)).
*18 Unlike a false arrest or malicious prosecution claim, “
‘[p]robable cause is not a defense’ to a claim for a denial of
the right to a fair trial” based on the fabrication of evidence.
Garnett, 838 F.3d at 277 (alteration in original) (quoting
Jovanovic v. City of New York, 486 F. App'x 149, 152 (2d Cir.
2012)). Qualified immunity is also unavailable on “a claim for
denial of the right of a fair trial where the claim is premised
on proof that a defendant knowingly fabricated evidence
and where a reasonable jury could so find.” Morse v. Fusto,
804 F.3d 538, 550 (2d Cir. 2015). However, witnesses who
provide information to prosecutors in judicial proceedings
have absolute immunity for the testimony they provide. See
Jovanovic, 486 F. App'x at 152.
In the Complaint, Plaintiff asserts that Defendants
“manufactured evidence of criminality” that prosecutors
relied on “to initiate criminal actions” against him. (Compl.
¶ 79.) In his deposition, Plaintiff testified that Defendants
fabricated: (1) the location of his arrest, (2) that Pujols’
property was found on his person including several iPod
devices and telephones — some of which Plaintiff contended
were his own property and some of which he alleges he did
not have on his person, (3) that Pujols’ driver's license was
found on his person, and (4) that a gold chain was found on
his person. (See Pl.’s Dep. 117:2–121:5, 134:2–20.)
The Court grants Defendants’ motion for summary judgment
with respect to Plaintiff's fabrication of evidence claim. In
support of his false evidence claim, Plaintiff maintains that
Defendants fabricated that Pujols’ property was found on
his person, (Pl.’s Dep. 54:8–54:17, 114:12–114:14 (stating
that he owned all property that was found on his person)),
and the location of his arrest, (Pl.’s Dep. 46:25–47:2, 49:21–
50:4). Although plaintiffs can generally rely on their own
testimony to demonstrate a genuine dispute of material fact,
see Jocks, 316 F.3d at 138, Plaintiff offers no evidence in
support of his claims that the evidence was planted, which
alone are insufficient to “withstand summary judgment” for
false evidence allegations. Apostol v. City of New York, No.
11-CV-3851, 2014 WL 1271201, at *6 (E.D.N.Y. Mar. 26,
2014) (“Plaintiffs cannot withstand summary judgment by
making unsubstantiated, convenient claims — for example,
that someone must have planted the marijuana, or that
[the officer] would have notified plaintiffs immediately
that he had discovered marijuana if his discovery were
genuine.”), aff'd, 607 F. App'x 105 (2d Cir. 2015); see also
Isaac v. City of New York, No. 16-CV-4729, 2020 WL
1694300, at *9 (E.D.N.Y. Apr. 6, 2020) (“Plaintiff claims
that the testimony of four witnesses and [the] defendant ...
was false, but offers no evidence in support, other than
his own testimony.”); Carlisle v. City of New York, No.
05-CV-6825, 2007 WL 998729, at *3 (S.D.N.Y. Apr. 2,
2007) (“[P]laintiff's unsupported, conclusory allegation that
someone must have planted the evidence because there is
no other way it could have gotten [there] is not sufficient
to defeat a motion for summary judgment.” (alterations in
original)); Shmueli v. City of New York, No. 03-CV-1195,
2007 WL 1659210, at 6 (S.D.N.Y. June 7, 2007) (granting
defendants summary judgment on plaintiff's claim that ex-
boyfriend conspired with prosecution to fabricate evidence
that plaintiff harassed him telephonically, where plaintiff
provided testimony from herself and a friend that the
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ex-boyfriend repeatedly telephoned his own office from
plaintiff's apartment). 23
*19 In addition, the Court finds that there is no genuine
dispute of material fact with respect to the gold chain because
there is no evidence that Defendants alleged that the gold
chain was found on Plaintiff, (Pl.’s Dep. 134:8–11; List
of Items Recovered from Pl. (“Bulzomi List”), annexed to
Spears Decl. as Ex. I, Docket Entry No. 43-9), and therefore
there is no fabrication of evidence. See Soto, 132 F. Supp.
3d at 458 (finding that “no reasonable juror could conclude
that [d]efendants fabricated evidence” when “[n]othing in the
record suggests that the [i]ndividual [d]efendants invented or
even changed the words in [p]laintiff's messages”).
Accordingly, the Court grants Defendants’ motion for
summary judgment as to Plaintiff's fabrication of evidence
claim.
vi. Conspiracy
Defendants argue that they are entitled to summary judgment
because Plaintiff does not adduce any evidence that suggests
Defendants entered into an agreement “to achieve an unlawful
end.” (Defs.’ Mem. 22–23.) Defendants also argue that
because Plaintiff's claims are “wholly conclusory,” Plaintiff's
conspiracy claim fails as a matter of law.
To state a claim for conspiracy under section 1983, a “plaintiff
must plausibly allege (1) an agreement between a state
actor and a private party (2) to act in concert to inflict
unconstitutional injury, and (3) an overt act furthering that
goal and causing damages.” Corsini v. Brodsky, 731 F.
App'x 15, 19 (2d. Cir 2018) (citing Ciambriello v. County
of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002)); see also
Bukowski v. Spinner, 709 F. App'x 87, 89 (2d Cir. 2018)
(dismissing the plaintiff's section 1983 conspiracy claim
because “oblique reference to those private actors conspiring
with [the defendant] to deprive her of her child is fatally
conclusory or otherwise unsupported” (citing Ciambriello,
292 F.3d at 324)); Gallop v. Cheney, 642 F.3d 364, 369 (2d
Cir. 2011) (dismissing the plaintiff's section 1983 conspiracy
claim where “not a single fact ... corroborate[d] her allegation
of a ‘meeting of the minds’ among the conspirators”);
Ciambriello, 292 F.3d at 325 (“[C]omplaints containing only
conclusory, vague, or general allegations that the defendants
have engaged in a conspiracy to deprive the plaintiff of
his constitutional rights are properly dismissed ....”); White
v. Abney, No. 17-CV-4286, 2019 WL 1298452, at *6–
7 (E.D.N.Y. Mar. 21, 2019) (dismissing complaint where
the plaintiff did not allege facts to support section 1983
conspiracy claim that the defendants sought to have him
arrested based on false information).
The Court grants Defendants’ motion for summary judgment
because there is no evidence in the record that supports a
meeting of the minds or an agreement between Defendants to
inflict a constitutional injury. Plaintiff's deposition testimony
does not establish any element of a conspiracy claim and
his Complaint only states that “defendant officers met
with themselves and with several other individuals on
numerous occasions and agreed to deprive [P]laintiff of his
constitutional rights.” (Compl. ¶ 96.) This threadbare and
conclusory assertion is insufficient to show an agreement,
which is necessary to maintain a section 1983 conspiracy
claim. See Corsini, 731 F. App'x at 18 (affirming dismissal
of the plaintiff's section 1983 conspiracy claim because the
plaintiff made only threadbare recitals of the elements of the
claim); Robbins v. Cloutier, 121 F. App'x 423, 425 (2d Cir.
2005) (finding allegations that the defendants “ ‘acted in a
concerted effort, ... agreed to not hire [the plaintiff] and to
inform other ... entities to refrain from hiring [the plaintiff’]
and ‘... [did] overt acts in order to effectuate their common
plan’ ” to be conclusory and insufficient to maintain a section
1983 conspiracy claim); Lozada v. Weilminster, 92 F. Supp.
3d 76, 92 (E.D.N.Y. 2015) (“Plaintiff's own unsubstantiated
speculation and allegations do not support finding a genuine
issue of material fact as to the alleged conspiracy.”).
*20 Accordingly, the Court grants Defendants’ motion for
summary judgment on Plaintiff's section 1983 conspiracy
claim.
vii. Excessive detention
Defendants argue that they are entitled to summary
judgment on Plaintiff's excessive detention claim 24 because
Defendants “could not have conclusively established
[P]laintiff's innocence at any point during his pre-trial
incarceration.” (Defs.’ Mem. 21.)
“Unreasonably prolonged pretrial detention where
exculpatory evidence is readily available can form the
basis of a section 1983 claim against police officers as
a violation of the Fourth Amendment's protection against
unreasonable seizures.” Ying Li v. City of New York, 246
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F. Supp. 3d 578, 622 (E.D.N.Y. 2017) (citing Russo v.
City of Bridgeport, 479 F.3d 196, 208–09 (2d Cir. 2007)).
To prevail on this claim, a plaintiff “must establish (1)
that he has a right to be free from continued detention
stemming from law enforcement officials’ mishandling or
suppression of exculpatory evidence, (2) that the actions of
the officers violated that right, and (3) that the officers’
conduct ‘shocks the conscience.’ ” Russo, 479 F.3d at 205
(quoting County of Sacramento v. Lewis, 523 U.S. 833, 846,
118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)); Gill v. Dawkins,
No. 16-CV-1398, 2020 WL 7042647, at *7 (E.D.N.Y. Nov.
30, 2020). To determine whether a plaintiff's detention is
excessive in violation of the Fourth Amendment, the Second
Circuit considers: “(1) the length of time the plaintiff was
incarcerated; (2) the ease with which the exculpatory evidence
in the officers’ possession could have been checked; and
(3) the alleged intentionality of the defendants’ behavior.”
Ying Li, 246 F. Supp. 3d at 622 (citing Russo, 479 F.3d at
209); Clase v. United States, No. 17-CV-02247, 2020 WL
6438757, at *6 (E.D.N.Y. Nov. 2, 2020) (“When assessing
whether detention violated a plaintiff's Fourth Amendment
rights, courts consider: (1) the length of time the plaintiff
was incarcerated, (2) the ease with which the exculpatory
evidence in the defendant officers’ possession could have
been checked, and (3) the alleged intentionality of defendants’
behavior.” (citing Harewood v. Braithwaite, 64 F. Supp.
3d 384, 401 (E.D.N.Y. 2014)), report and recommendation
adopted, No. 17-CV-2247, 2020 WL 7021593 (E.D.N.Y.
Nov. 30, 2020).
*21 The Court grants Defendants’ motion for summary
judgment because there is no evidence in the record indicating
that Defendants mishandled or suppressed any exculpatory
evidence. See Wilson v. City of New York, 480 F. App'x
592, 595 (2d Cir. 2012) (“We held that criminal defendants
have a right to be protected from ‘a sustained detention
stemming directly from the law enforcement officials’ refusal
to investigate available exculpatory evidence’ particularly
where the officials ‘retain[ ] sole custody of the [exculpatory]
evidence....’ ” (emphasis added) (quoting Russo, 479 F.3d
at 199)); Russo, 479 F.3d at 205 (holding that officers
may be sued for prolonged detention when they mishandle
exculpatory evidence and fail to turn it over to the prosecuting
attorney); Clase, 2020 WL 6438757, at *6 (finding no
material dispute of fact as to Plaintiff's excessive detention
claim when plaintiff did not provide any evidence to prove
exculpatory video evidence was suppressed intentionally);
Newson v. City of New York, No. 16-CV-6773, 2019 WL
3997466, at *9 (E.D.N.Y. Aug. 23, 2019) (“Plaintiff does not
expressly allege that the NYPD wrongfully withheld evidence
from prosecutors.”); Harewood, 64 F. Supp. 3d at 402 (“The
touchstone of an unreasonable detention claim is the existence
of egregious conduct by an officer in connection with specific,
readily-accessible, exculpatory evidence.”).
Accordingly, the Court grants Defendants’ motion for
summary judgment on Plaintiff's section 1983 unreasonable
detention claim.
viii. Failure to intervene
Defendants argue that they are entitled to summary judgment
on Plaintiff's failure to intervene claim because no conduct
by any defendant violated Plaintiff's constitutional rights.
(Defs.’ Mem. 23.) In the alternative, assuming that a right was
violated, Defendants argue that there is no evidence that “any
defendant had a realistic opportunity to intervene or that a
reasonable person would realize that [P]laintiff's rights were
being violated.” (Id.)
“[L]aw enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from
infringement by other law enforcement officers in their
presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir.
2014) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d
Cir. 1994) (collecting cases)); see also Theodat v. City of
New York, 818 F. App'x 79, 82 (2d Cir. 2020) (“It is
widely recognized that all law enforcement officials have
an affirmative duty to intervene to protect the constitutional
rights of citizens from infringement by other law enforcement
officers in their presence.” (quoting Anderson, 17 F.3d
at 557)). An officer may be liable for the preventable
harm caused by the officer's failure to intervene during
a constitutional violation where the officer “observes the
[constitutional violation] and has sufficient time to act to
prevent it.” Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir.
2016) (citation omitted); see also Terebesi, 764 F.3d at 244.
Because there is no genuine dispute of material fact as
to any of Plaintiff's federal claims, Plaintiff's failure to
intervene claims also fail. See also Wieder v. City of New
York, 569 F. App'x 28, 30 (2d Cir. 2014) (“Because the
underlying constitutional claims were properly dismissed,
we also affirm the district court's dismissal of plaintiff's
failure to intervene claim.”); Turyants v. City of New York,
No. 18-CV-841, 2020 WL 804900, at *7 (E.D.N.Y. Feb.
18, 2020) (“[T]he absence of any underlying constitutional
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violations requires dismissal of [P]laintiff's failure to
intervene claims.” (alterations in original) (quoting Sharpe v.
City of New York, No. 11-CV-5494, 2013 WL 2356063, at *9
(E.D.N.Y. May 29, 2013)); Tortora, 2019 WL 9100369, at *13
(“[B]ecause Plaintiff has failed to provide sufficient evidence
to support his underlying constitutional claim of excessive
pre-arraignment delay, Plaintiff's failure to intervene claim
also fails.” (citing Coleman v. City of New York, No. 07-
CV-1051, 2010 WL 571986, at *5 (S.D.N.Y. Feb. 2, 2010)));
Levy v. City of New York, 935 F. Supp. 2d 575, 594 (E.D.N.Y.
2013) (“[T]he failure to intervene claim is contingent upon the
disposition of the primary claims underlying [it].” (quoting
Matthews v. City of New York, 889 F. Supp. 2d 418, 443–44
(E.D.N.Y. 2012))).
*22 Accordingly, the Court denies Defendants’ motion for
summary judgment as to Plaintiff's failure to intervene claim.
ix. Municipal liability
Defendants argue that they are entitled to summary judgment
on Plaintiff's municipal liability claim because Plaintiff did
not suffer any violation of a federally protected right. (Defs.’
Mem. 20.) In the alternative, Defendants argue that even if
Plaintiff's constitutional rights were violated, Plaintiff “has
not set forth, or even alleged, any facts supporting the notion
that the purported constitutional violations here were the
product of any unconstitutional policy, custom, or practice on
the part of the City.” (Id. at 20–21.) In support, Defendants
point to Plaintiff's statement at his deposition in which he was
“entirely unable to articulate whether a particular municipal
policy, custom, or practice was the cause of his injuries.” (Id.
at 21 (citing Pl.’s Dep. 167:12–22).)
In his Complaint, Plaintiff alleges that the City, acting through
both the NYPD and the Office of the District Attorney of
Kings County had policies, practices, and customs of failing
to train and supervise or discipline its officers and district
attorneys. (Compl. ¶¶ 99–101.) Plaintiff alleges that the City
fails to train or supervise a host of activities, including,
inter alia, using force, interviewing witnesses and informants,
assessing credibility of witnesses and informants, prosecuting
innocent persons, illegally stopping and frisking people on
the basis of race, degrading and abusing persons on the basis
of race, and vouching for and releasing seized property. (Id.
¶¶ 100–103.) Plaintiff also cites to over a dozen other suits
against the City and argues that these suits involve allegations
of wrongful conduct similar to that alleged in the Complaint
and from which the Court can infer unconstitutional policies,
practices, and conduct. (Id. ¶¶ 99–125.)
To establish a municipal liability claim, “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) (quoting Wray v.
City of New York, 490 F.3d 189, 195 (2d Cir. 2007)); see
also Frost, 980 F.3d at 258 (“To establish liability under
Monell, a plaintiff must show that he suffered the denial of a
constitutional right that was caused by an official municipal
policy or custom.” (quoting Bellamy v. City of New York, 914
F.3d 727, 756 (2d Cir. 2019))). A plaintiff can establish an
official policy or custom by showing any of the following:
(1) a formal policy officially endorsed by the municipality;
(2) actions or decisions made by municipal officials with
decision-making authority; (3) a practice so persistent and
widespread that it constitutes a custom of which policymakers
must have been aware; or (4) a failure by policymakers to
properly train or supervise their subordinates, such that the
policymakers exercised “deliberate indifference” to the rights
of the plaintiff and others encountering those subordinates.
See Iacovangelo v. Corr. Med. Care, Inc., 624 F. App'x 10,
13–14 (2d Cir. 2015) (formal policy officially endorsed by
the municipality); Matusick, 757 F.3d at 62 (widespread and
persistent practice); Carter v. Inc. Vill. of Ocean Beach, 759
F.3d 159, 164 (2d Cir. 2014) (failure to train amounting to
deliberate indifference); O'Kane v. Plainedge Union Free
Sch. Dist., 827 F. App'x 141, 143 (2d Cir. 2020) (failing
to “take appropriate action to prevent or sanction violations
of constitutional rights” amounting to deliberate indifference
(quoting Jones v. Town of East Haven, 691 F.3d 72, 81 (2d
Cir. 2012)); Jones, 691 F.3d at 81 (policymaking official's
“express” or “tacit” ratification of low-level employee's
actions).
*23 “[U]nder Monell municipal liability for constitutional
injuries may be found to exist even in the absence of
individual liability, at least so long as the injuries complained
of are not solely attributable to the actions of named
individual defendants.” Barrett v. Orange Cnty. Human
Rights Comm'n, 194 F.3d 341, 350 (2d Cir. 1999); see
also Coleman v. Cnty. of Suffolk, 685 F. App'x 69, 72
(2d Cir. 2017) (“[M]unicipal liability may arise absent
an officer's constitutional deprivation if a deprivation was
nonetheless caused by a non-party for whom the municipality
is also bound to answer ....” (citing Barrett v. Orange Cnty.
Human Rights Comm'n, 194 F.3d 341, 350 (2d Cir. 1999)));
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Rutigliano v. City of New York, 326 F. App'x 5, 9 (2d Cir. 2009)
(affirming that a “ ‘municipality may be found liable under
[section] 1983 even in the absence of individual liability’ ...
only in very special circumstances” (quoting Barrett, 194 F.3d
at 350)).
The Court grants Defendants’ motion for summary judgment
as to Plaintiff's Monell claim. In Demosthene v. City of New
York, the court confronted a similar allegation — apparently
the exact same allegation made by the same attorney who
filed Plaintiff's Complaint before withdrawing from the case
— of an unconstitutional pattern and practice by the City
premised on dozens of other federal lawsuits. 2019 WL
181305, at *9. In that case, the [p]laintiff alleged that those
lawsuits “compel an ‘infer[ence]’ that the City maintains
various unconstitutional policies.” Id. at *9 (alteration in
original). The court found that these allegations fell short of
stating a claim for municipal liability for several reasons. The
first reason was that “the mere fact that plaintiffs in other
lawsuits have alleged unconstitutional treatment similar to the
violations alleged by plaintiff does not mean that the City is
liable for these alleged violations.” Id. The second reason was
that the plaintiff relied on complaints “premised on a different
set of factual allegations” than the one at hand in the litigation.
Id. at *10 (quoting Simms v. City of New York, 480 F. App'x
627, 630 (2d Cir. 2012)). As an example, the court noted that
the plaintiff's reliance on Jones v. City of New York, 603 F.
App'x 13, 15 (2d Cir. 2015) was inapposite because that case
involved allegations that the City “had a policy of ‘charging
all members of a group with criminal possession of a weapon
when only one group member is alleged to have possessed
a firearm.’ ” Demosthene, 2019 WL 181305, at *9 (quoting
Jones, 603 F. App'x at 15). The court found that Jones was
unrelated to the plaintiff's case because he did not allege that
a member of his group had a firearm and instead asserted
that “there was nothing to connect him to the crime, and that
his arrest was based on fabrications.” Id. Finally, the court
also found that dismissal of the Monell claim was warranted
because “plaintiff simply allege[d] prior misconduct,” which
is insufficient to support a municipal liability claim “absent
evidence of the City's reaction to those claims.” Id.
The Court is in the exact same position as the district court
in Demosthene. Plaintiff's Complaint similarly cites Jones
and over a dozen other cases that are fundamentally different
from Plaintiff's claim that his arrest was based on fabricated
evidence. Plaintiff also asks the Court to infer a current
policy and practice of unconstitutional conduct on behalf of
the City premised on prior misconduct. Plaintiff provides no
evidence of a policy or practice to support his allegations in
the Complaint. As Defendants note, Plaintiff does not state in
his deposition that there is a specific New York City policy
that is the cause of his alleged constitutional injuries, (Pl.’s
Dep. 167:12–22), and the Court does not find any evidence in
the record to substantiate Plaintiff's allegations.
*24 Accordingly, the Court grants Defendants’ motion for
summary judgment as to Plaintiff's municipal liability claim.
d. Plaintiff's remaining state law claims
Defendants argue that the Court should decline to exercise
supplemental jurisdiction over Plaintiff's remaining state law
claims. (Defs.’ Mem. 24–25.)
In view of the Court's dismissal of Plaintiff's federal claims,
the Court declines to exercise supplemental jurisdiction
over the remaining state law claims for false arrest and
imprisonment, assault and battery, malicious prosecution,
unreasonable search and seizure, negligence, and negligent
and intentional infliction of emotional distress and several
claims under Article I, §§ 5, 6, 8, 11, and 12 of the New
York State Constitution. See 28 U.S.C. § 1367(c)(3) (“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.”). “[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 Benefit Guar.
Corp. ex rel. Saint Vincent Cath. Med. Ctrs. Ret. Plan v.
Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir.
2013) (quoting Valencia ex rel. Franco v. Lee, 316 F.3d 299,
305 (2d Cir. 2003)); see also One Commc'ns Corp. v. JP
Morgan SBIC LLC, 381 F. App'x 75, 82 (2d Cir. 2010) (“If
all of a plaintiff's federal claims are dismissed, a district court
is well within its discretion to decline to assert supplemental
jurisdiction over any state law claims ....”). Accordingly, the
Court dismisses Plaintiff's state law claims without prejudice.
e. Claims against John and Jane Doe Defendants
Defendants Police Officers John and Jane Does #1–5 have
not appeared in this action since Plaintiff filed his Complaint
on June 21, 2018. Further, the Court has not received any
indication that Plaintiff has tried to identify John/Jane Does
#1–5. The Court finds that Plaintiff has had sufficient time and
opportunity to identify John/Jane Does #1–5, and therefore
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the Court sua sponte dismisses all claims against them. See
Tortora, 2019 WL 9100369, at *25 (dismissing claims against
John and Jane Doe defendants at summary judgment stage
when the plaintiff had not identified the defendants in the
three years since the action was commenced); Engles v. Jones,
No. 13-CV-6461, 2018 WL 6832085, at *11 (W.D.N.Y.
Dec. 28, 2018) (“Dismissal of claims against John Doe
defendants is appropriate where a plaintiff has had ample
time and opportunity to discover the identity of the John Doe
[d]efendants and serve them but has failed to do so.” (citation
and internal quotations omitted)); see also Young v. Cabrera,
No. 18-CV-3028, 2020 WL 7042759, at *8 (E.D.N.Y. Nov.
30, 2020) (“[I]t is well settled that where ... discovery
has closed, the proper course is to dismiss the John Doe
[d]efendants without prejudice.” (quoting Cox v. Village of
Pleasantville, 271 F. Supp. 3d 591, 618 (S.D.N.Y. 2017)));
Williams v. Johnson, No. 17-CV-2351, 2019 WL 1437820, at
*8 (S.D.N.Y. Mar. 31, 2019) (dismissing claims sua sponte
against unidentified John Doe defendants when suit was filed
nearly two years ago and plaintiff “ha[d] not amended his
complaint to identify the John Doe defendants”).
III. Conclusion
*25 For the foregoing reasons, the Court grants Defendants’
motion for summary judgment as to Plaintiff's federal claims
for false arrest, unreasonable search and seizure, unlawful
stop and search, malicious prosecution, excessive use of
force, denial of the right to a fair trial, conspiracy, excessive
detention, failure to intervene, and Monell liability. The Court
declines to exercise supplemental jurisdiction over Plaintiff's
state law claims and dismisses those claims without prejudice.
The Court also dismisses all claims against the John and Jane
Doe Defendants without prejudice. The Clerk of Court is
respectfully directed to close this case.
SO ORDERED:
All Citations
Not Reported in Fed. Supp., 2021 WL 681238
Footnotes
1 Although the Complaint identifies one of the Defendants as Sergeant “Hellman,” without his first name, all of
the documentation and filings submitted by Defendants’ attorney uses the spelling Stephen “Hillman.” (See,
e.g., Decl. of Andrew B. Spears in Supp. of Defs.’ Mot. (“Spears Decl.”) 1, Docket Entry No. 43.) Accordingly,
the Court adopts the spelling of Defendant's name as Stephen “Hillman” for purposes of this Memorandum
and Order.
2 Plaintiff asserts a claim for “fabrication of evidence and denial of [the] right to a fair trial.” (Compl. ¶¶ 78–82.)
Because Plaintiff's claim for a denial of a fair trial is premised on Defendants’ alleged fabrication of evidence,
the Court refers to it as a denial of the right to a fair trial claim.
3 (Defs.’ Stmnt. of Material Facts pursuant to Local Rule 56.1 (“Defs.’ 56.1”) ¶¶ 11–14, Docket Entry No. 45;
NYPD Compl. Report 2, annexed to Decl. of Andrew B. Spears in Supp. of Defs.’ Mot. (“Spears Decl.”) as
Ex. C, Docket Entry No. 43-3; Jesus Pujols Tr. of Testimony in the Supreme Ct. for the State of New York,
Kings County (“Pujols Trial Tr.”) 44:10–44:17, annexed to Spears Decl. as Ex. S, Docket Entry No. 43-19.)
4 Because the pages in the NYPD Follow-Up Report are not consecutively paginated, the Court refers to the
page numbers assigned by the electronic filing system.
5 (Defs.’ 56.1 ¶¶ 23–24; NYPD Compl. Report 5; NYPD Stolen Property Report for Jesus Pujols (“Pujols Stolen
Property Report”) 1, annexed to Spears Decl. as Ex. E, Docket Entry No. 43-5; NYPD Stolen Property Report
for Anamaria Agosto (“Agosto Stolen Property Report”) 1, annexed to Spears Decl. as Ex. F, Docket Entry
No. 43-6.)
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6 (Defs.’ 56.1 ¶ 25; Tr. of Det. Russ’ Testimony in the Supreme Ct. for the State of New York, Kings County
(“Russ Trial Tr.”) 413:3–19, annexed to Spears Decl. as Ex. T, Docket Entry No. 43-20; Pujols Trial Tr. 60:16–
61:3.)
7 Plaintiff appears to be unsure of the identity of his arresting officer and has indicated that he believes Officer
Russ was his arresting officer because his name was on Plaintiff's arrest paperwork. (Pl.’s Dep. 173:2–23.)
Defendants only identify the arresting officer as unspecified. (Defs.’ 56.1 ¶ 31.)
8 Plaintiff testified a short time after that he did not slap the officers’ hands away because “[t]hat's assault.” (Pl.’s
Dep. 71:17–19.)
9 (Tr. of Det. Bulzomi's Testimony in the Supreme Ct. for the State of New York, Kings County (“Bulzomi Trial
Tr.”) 310:11–14, annexed to Spears Decl. as Ex. U, Docket Entry No. 43-21; Defs.’ Mem. 5.)
10 Plaintiff testified that he did not have any injuries “except for ... being scratched up when [the officers] tackled”
him. (Pl.’s Dep. 71:7–9.)
11 In his state criminal trial, Plaintiff moved to suppress evidence of the driver's license and cellular telephones
recovered, but the court denied his motion. (See Decision and Order by the Honorable John G. Ingram on
Pl's Mot. to Suppress and Preclude Evidence (“Suppression Decision”) 1 n.1, annexed to Spears Decl. as
Ex. Q, Docket Entry No. 43-17.)
12 (Defs.’ 56.1 ¶¶ 41–42; Photographs of Property Recovered from Patterson, annexed to Spears Decl. as Ex.
N, Docket Entry No. 43-14; Tr. of Officer Puccia's Testimony in the Supreme Ct. for the State of New York,
Kings County (“Puccia Trial Tr.”) 805:5–21, annexed to Spears Decl. as Ex. V, Docket Entry No. 43-22.)
13 Although not referenced in Defendants’ 56.1 statement, Plaintiff indicates that he was incarcerated for nearly
two years before he was able to make bail. (See Pl.’s Dep. 66:2–4, 82:15–83:4, 120:24–121:2.)
14 Although Plaintiff does not provide evidence as to the exact role of each Defendant in his arrest and
Defendants do not argue lack of personal involvement with respect to these defendants, the Court
nevertheless notes that the undisputed facts establish personal involvement on the parts of Officers Russ,
Trione, and Schwartz, Detective Bulzomi, and Sergeant Diaz, because they either helped execute Plaintiff's
arrest or were present for the arrest. See Reen v. City of New York, No. 16-CV-3347, 2018 WL 4608194,
at *8 n.7 (E.D.N.Y. Sept. 25, 2018) (granting summary judgment in favor of defendant for lack of personal
involvement when defendant “neither ordered nor executed [p]laintiff's arrest” (citing Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994))); Cortes v. City of New York, 148 F. Supp. 3d 248, 255 (E.D.N.Y. 2015) (dismissing
false arrest claim when there was no evidence that the officer was present for or played any role in the
plaintiff's arrest).
15 Defendants argue that Plaintiff should be judicially estopped from asserting that he did not have Pujols’
Connecticut state driver's license on his person because during Plaintiff's criminal proceedings, Plaintiff
admitted stating to Detective Bulzomi that he found Pujols’ driver's license on the day of the robbery. (Defs.’
Mem. 8.) The Court declines to exercise its discretion to invoke judicial estoppel. See New Hampshire v.
Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (noting that judicial estoppel is an equitable
doctrine invoked in the court's discretion). “Judicial estoppel prevents a party from asserting a factual position
in a legal proceeding that is contrary to a position previously taken by that party in a prior legal proceeding.”
Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015). “A party invoking judicial estoppel
must show that (1) the party against whom the estoppel is asserted took an inconsistent position in a prior
proceeding and (2) that position was adopted by the first tribunal in some manner, such as by rendering
a favorable judgment.” Id. (quoting Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir.
1999)). Although it seems that Plaintiff may have made inconsistent statements as to whether he had Pujols’
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Connecticut driver's license on the day he was arrested, the Court does not find that the state court adopted
this position and determined that he possessed the license. In denying a suppression motion, the state court
merely ruled that Plaintiff's statement that he found the license was admissible because Plaintiff made the
statement in response to Detective Bulzomi asking for pedigree information. (See Suppression Decision 4.)
Denying a motion for suppression stands in contrast to other situations where courts have found judicial
estoppel appropriate. Cf. Frost v. New York City Police Dep't, 980 F.3d 231, 256 (2d Cir. 2020) (estopping
plaintiff from denying that he secreted a weapon because plaintiff “specifically admitted to possessing the
weapon, and the court adopted that position in accepting his guilty plea”); Kuar v. Mawn, No. 08-CV-4401,
2011 WL 838911, at *6 (E.D.N.Y. Mar. 4, 2011) (“[U]nder the doctrine of judicial estoppel, the Court will
preclude plaintiff from taking factual positions in this case which are directly contrary to statements that he
made in connection with his plea and that were adopted by the court which accepted his plea.”).
However, even accepting Plaintiff's argument that the officers did not find Pujols’ Connecticut state driver's
license on his person, the officers nevertheless had probable cause based on the veracity of Pujols’
identification. See Keith, 641 F. App'x at 65 (stating that “a victim's identification is typically sufficient to
provide probable cause”).
16 In the Complaint, Plaintiff asserts a claim for “unreasonable search and seizure” pursuant to section 1983
in addition to a claim of false arrest. (Compl. ¶¶ 87–90.) Although Defendants do not specifically move for
summary judgment as to Plaintiff's “unreasonable search and seizure” claim, they request that the Court
grant summary judgment in their favor and dismiss the Complaint in its entirety. (Defs.’ Mem. 1, 25.) Because
probable cause is a defense to unreasonable searches and seizures, see Serrano v. City of New York, No.
16-CV-8105, 2018 WL 3392869, at *8 (S.D.N.Y. July 12, 2018) (“[U]nreasonable search and seizure claims
turn entirely on the probable cause analysis.”) aff'd, 793 F. App'x 29 (2d Cir. 2019), the Court construes
Defendants’ summary judgment motion to include Plaintiff's unreasonable search and seizure claim and
grants Defendants’ motion.
17 Although it is possible that Officer Trione was present during Plaintiff's arrest, there is no evidence to suggest
he “play[ed] an active role in the prosecution” to support his personal involvement. See Balde v. Rickford,
No. 17-CV-1846, 2019 WL 2225397, at *8 (S.D.N.Y. May 23, 2019) (“While 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.” (quoting Bermudez v. City of New
York, 790 F.3d 368, 377 (2d Cir. 2015))); Felix v. New York State Dep't of Corr. & Cmty. Supervision, No. 16-
CV-7978, 2018 WL 3542859, at *9 (S.D.N.Y. July 23, 2018) (dismissing malicious prosecution claim for lack
of personal involvement when officer was present for the plaintiff's arrest but the plaintiff “does not identify
any involvement on their parts in the commencement or continuation of [p]laintiff's revocation proceedings”).
18 In addition, Plaintiff first testified that he “slapp[ed] [the officers’] hands away,” (Pl.’s Dep. 61:22–25), but
later testified a short time later that he did not slap the officers’ hands away because “[t]hat's assault,” (id.
at 71:17–19).
19 Defendants argue that they are entitled to summary judgment because Plaintiff suffered no injury to support
a claim for excessive force. However, as discussed supra, a plaintiff's injury is a “relevant” but non-dispositive
factor in evaluating an excessive force claim. Abreu v. Nicholls, 368 F. App'x 191, 193 (2d Cir. 2010).
Accordingly, while it is undisputed that Plaintiff was not injured while in NYPD custody, aside from minor
scratches that Plaintiff did not describe as an injury, (Defs.’ 56.1 ¶¶ 33–36; Pl.’s Dep. 71:1–9), the Court
declines to grant summary judgment based on Plaintiff's lack of injury.
20 Defendants argue that the officers are entitled to qualified immunity on Plaintiff's false arrest, malicious
prosecution, and excessive force claims. (Defs.’ Mem. 18–20.) Because as explained above, Plaintiff fails to
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show that the arrest, prosecution, and use of force were unlawful, the Court does not address whether the
officers are entitled to qualified immunity on these claims. See Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir.
2007) (“When a defendant officer ... invokes qualified immunity to support a motion for summary judgment,
a court must first consider [whether] ... the facts, viewed in the light most favorable to the plaintiff, show that
the officer's conduct violate[d] a constitutional right[.] If [it did not], ‘there is no necessity for further inquiries
concerning qualified immunity.’ ” (internal quotation marks omitted) (quoting Saucier v. Katz, 533 U.S. 194,
201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001))); see also Powell v. City of New York, No. 14-CV-09937, 2016
WL 4159897, at *11 (S.D.N.Y. July 14, 2016) (“There is no need to linger on the qualified immunity analysis in
this case, since, as shown above, no constitutional violation can be made out, even on a favorable view of the
parties’ submissions.” (internal quotation marks omitted) (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151)).
21 As discussed supra note 15, the Court declines to judicially estop Plaintiff from making this assertion.
22 The Supreme Court's dicta in McDonough creates an open question as to whether favorable termination
is an element of a fair trial claim. McDonough v. Smith, 588 U.S. ––––, ––––, 139 S. Ct. 2149, 2156, 204
L.Ed.2d 506 (2019) (holding that the plaintiff “could not bring his fabricated-evidence claim under [section]
1983 prior to favorable termination of his prosecution”); see also Maradiaga v. City of New York, No. 16-
CV-8325, 2020 WL 5849465, at *5 (S.D.N.Y. Oct. 1, 2020) (quoting McDonough, 139 S. Ct. at 2156); Smalls
v. Collins, No. 14-CV-2326, 2020 WL 2563393, at *3 (E.D.N.Y. Mar. 16, 2020) (“Given its recency, few courts
in [the Second] Circuit have had occasion to consider whether McDonough should be construed as imposing
a favorable termination requirement for [section] 1983 fair-trial claims .... Those that have ... suggest[ ] that
it should be construed as imposing such a requirement.”). The Supreme Court's dicta in McDonough is not
relevant to the Court's determination in this case.
23 Although the Court grants Defendants’ motion for summary judgment, the Court rejects Defendants’ argument
that because independent probable cause existed, Plaintiff has suffered no deprivation of liberty. As
discussed above, probable cause “is not a defense to a fair trial claim based on the fabrication of evidence”
because “even if ‘a privileged arrest accounted for at least some portion of the deprivation of [a § 1983
plaintiff's] liberty,’ the plaintiff may still ‘suffer[ ] a deprivation of liberty as a result of [an] officer's fabrication.’
” Frost, 980 F.3d at 248 (alterations in original) (quoting Garnett, 838 F.3d at 277–78). Plaintiff suffered
deprivation of his liberty in the form of his post-arraignment detention for nearly two years before he made bail
in the amount of $30,000. (See Pl.’s Dep. 82:15–83:4; Bail Form.) Accordingly, “there can be no question”
that Plaintiff suffered a deprivation of liberty. Murphy, 118 F.3d at 944; see also Singer v. Fulton Cnty. Sheriff,
63 F.3d 110, 117 (2d Cir. 1995) (noting that “any post-arraignment deprivations of liberty (such as being
bound-over for trial) might” be adequate to maintain a section 1983 claim); Arbuckle v. City of New York, No.
14-CV-10248, 2016 WL 5793741, at *10–11 (S.D.N.Y. Sept. 30, 2016) (collecting cases).
24 Plaintiff's Complaint referenced “excessive detention” but does not specify whether he is asserting a claim
based on pre-arraignment detention delay or pre-trial detention delay. (See Compl. ¶¶ 73–77.) As a general
matter, “a presumption of reasonableness has long applied to pre-trial detentions that last for fewer than 48
hours.” Miller v. City of New York, 700 F. App'x 57, 59 (2d Cir. 2017) (citing County of Riverside v. McLaughlin,
500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991)); see Bryant v. City of New York, 404 F.3d 128, 138
(2d Cir. 2005) (“What is constitutionally required is that, except in extraordinary circumstances, the arrestee
be given a hearing into probable cause for the arrest within 48 hours.”). Because Plaintiff was arraigned less
than twenty-four hours after his arrest, (see Defs.’ 56.1 ¶¶ 50–51; Arraignment Form), and was incarcerated
for nearly two years prior to trial, (see Pl.’s Dep. 65:23–66:4), the Court construes Plaintiff's claim as one
for excessive pre-trial detention.
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Hall v. Clinton County, Not Reported in Fed. Supp. (2020)
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2020 WL 1923236
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Milan HALL, Plaintiff,
v.
CLINTON COUNTY, Defendant.
8:18-CV-1405 (GTS/CFH)
|
Signed 04/21/2020
Attorneys and Law Firms
MILAN HALL, Plaintiff, Pro Se, 36 Bell Road, Chazy, NY
12921.
OF COUNSEL: THOMAS K. MURPHY, ESQ., MURPHY
BURNS LLP, Counsel for Defendant, 407 Albany Shaker
Road, Loudonville, NY 12211.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se civil rights
action filed by Milan Hall (“Plaintiff”) against Clinton County
(“Defendant”), is Defendant's motion to dismiss Plaintiff's
Amended Complaint for failure to state a claim upon which
relief can be granted. (Dkt. No. 13.) For the reasons set forth
below, Defendant's motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Amended Complaint
Plaintiff filed an Amended Complaint in accordance with this
Court's Decision and Order of August 26, 2019. (Dkt. No.
11 [Decision and Order filed Aug. 26, 2019].) Generally, in
his Amended Complaint, Plaintiff alleges that, “commencing
on the 28 th day of June 2012,” Defendant has violated his
rights in five ways by using his marriage license as proof of
paternity: (1) Defendant has stripped him of his status as a
man and termed him a non-custodial parent and obligor; (2)
Defendant has wrongfully denied him the right to raise his
child as he pleases and to do so in privacy; (3) Defendant
has damaged his reputation in his community; (4) Defendant
has denied him the right to a trial by jury before ordering
him to pay child support; and (5) Defendant denied him
his right to due process when it failed to disclose to him
the legal consequences that would result from the signing
of his marriage license. (Dkt. No. 12 [Pl.’s Am. Compl.].)
Generally, based on these factual allegations, and construed
with special liberality, Plaintiff's Amended Complaint claims
that Defendant violated his rights to due process under the
Fifth and Fourteenth Amendments, and his right to a jury trial
under the Sixth and/or Seventh Amendments to the United
States Constitution and 42 U.S.C. § 1983. (Id.)
B. Parties’ Briefing on Defendant's Motion to Dismiss
1. Defendant's Memorandum of Law
Generally, in its motion to dismiss Plaintiff's Amended
Complaint, Defendant makes two arguments. (Dkt. No. 13,
Attach. 2 [Def.’s Mem. of Law].) First, Defendant argues that
Plaintiff's Amended Complaint fails to state a claim upon
which relief can be granted. (Id. at 7-8.) More specifically,
Defendant argues that Plaintiff has not pled facts plausibly
suggesting the existence of any municipal custom, policy, or
practice that caused his alleged constitutional deprivations,
but rather has merely alleged that New York's valid paternity
laws are not fair. (Id.) Defendant also argues that Plaintiff
is essentially seeking a nullification of a New York State
Family Court Order of Child Support against him, triggering
the domestic relations exception to federal court jurisdiction,
and thus, even if the Court were to find that Plaintiff has
stated a claim, the Court would not possess subject-matter
jurisdiction over any such claim. (Id.)
Second, Defendant argues that, based on the Amended
Complaint's own factual allegations, Plaintiff's claims are
untimely as a matter of law. (Id. at 8-9.) More specifically,
Defendant argues that the statute of limitations for personal
injury actions in New York is three years from when the
plaintiff knew or had reason to know of the injury, and that the
Amended Complaint expressly alleges that the child support
proceedings were initiated on June 28, 2012; yet Plaintiff did
not file this lawsuit until December 2018. (Id.) Defendant
argues that any allegations that the injury is ongoing (because
Plaintiff is under a continuous obligation to pay child support)
would not render his claim timely under the continuing
violation doctrine because, based on the factual allegations of
the Amended Complaint, he was (or reasonably should have
been) aware of that injury as early as June 28, 2012. (Id.)
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2. Plaintiff's Opposition Memorandum of Law
*2 Generally, in opposition to Defendant's motion, Plaintiff
makes four arguments. (Dkt. No. 15, at 4-5 [Pl.’s Opp'n
Mem. of Law].) First, Plaintiff argues that he is not alleging
that Defendant failed to inform him of the responsibilities
that could possibly result from children born during his
marriage at the time he signed the marriage license, but
that “Defendants failed to employ Due Process Safeguards
to ensure that the rights of the Plaintiff were protected,
and as a result the Plaintiff was defaulted into a Title IV-
D case from which he now suffers the deprivation of his
inherent rights”; however, he concedes that “[t]his deprivation
is extrinsically linked to the Defendants failure to employ
due process safeguards when presenting the Plaintiff with a
marriage certificate, the legal instrument that would later be
used to default the Plaintiff into a Title IV-D case.” (Id. at 4.)
Pointing to a federal statute requiring a state to have a civil
process for voluntarily acknowledging paternity that includes
the provision of due process and an explanation by the state of
the individual's rights and responsibilities of acknowledging
paternity, he appears to argue that Defendant violated his
right to due process by summoning him to a “fact finding”
hearing before a “Family Court Support Magistrate” because
the Federal Manual of Child Support requires that such a
proceeding should not have been presided over by “a judge
of the court.” (Id.)
Second, Plaintiff argues that he is not merely asking the Court
to overturn the child support order as Defendant suggests,
but is seeking a remedy for the violation of his constitutional
rights. (Id. at 4-5.)
Third, Plaintiff argues that it is a crime to deprive an
individual of his or her constitutional rights. (Id. at 5.)
Fourth, Plaintiff argues that his claims should not be found to
be untimely because he promptly filed his original Complaint
in 2018 as soon as he discovered that his rights had been
violated. (Id. at 5.)
II. GOVERNING LEGAL STANDARDS
It has long been understood that a dismissal for failure to
state a claim upon which relief can be granted, pursuant to
Fed. R. Civ. P. 12(b)(6), can be based on one or both of two
grounds: (1) a challenge to the “sufficiency of the pleading”
under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cnty., 549
F. Supp.2d 204, 211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.)
(adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground,
some elaboration regarding that ground is appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading 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]. In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show[ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized
the “short and plain” pleading standard under Fed. R. Civ. P.
8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d
at 212 n.20 (citing Supreme Court case). On the other hand,
the Supreme Court has held that, by requiring the above-
described “showing,” the pleading standard under Fed. R.
Civ. P. 8(a)(2) requires that the pleading contain a statement
that “give[s] the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.” Jackson, 549 F.
Supp. 2d at 212 n.17 (citing Supreme Court cases) (emphasis
added).
The Supreme Court has explained that such fair notice has
the important purpose of “enabl[ing] the adverse party to
answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F. Supp.
2d at 212 n.18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason,
as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal
Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example,
numerous Supreme Court and Second Circuit decisions exist
holding that a pleading has failed to meet the “liberal” notice
pleading standard. Rusyniak, 629 F. Supp. 2d at 213 n.22
(citing Supreme Court and Second Circuit cases); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
*3 Most notably, in Bell Atlantic Corp. v. Twombly, the
Supreme Court reversed an appellate decision holding that
a complaint had stated an actionable antitrust claim under
15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007). In doing so, the Court “retire[d]” the famous
statement by the Court in Conley v. Gibson, 355 U.S. 41,
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45-46 (1957), that “a complaint should not be dismissed for
failure to state a claim 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.” Twombly, 127 S. Ct. at 560-61,
577. Rather than turn on the conceivability of an actionable
claim, the Court clarified, the “fair notice” standard turns on
the plausibility of an actionable claim. Id. at 555-70. The
Court explained that, while this does not mean that a pleading
need “set out in detail the facts upon which [the claim is
based],” it does mean that the pleading must contain at least
“some factual allegation[s].” Id. at 555. More specifically, the
“[f]actual allegations must be enough to raise a right to relief
above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court
explained that “[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, 129 S. Ct. 1937,
1949 (2009). “[D]etermining whether a complaint states a
plausible claim for relief ... [is] a context-specific task that
requires the reviewing 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
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.
Ct. at 1950 (internal quotation marks and citations omitted).
However, while the plausibility standard “asks for more than
a sheer possibility that a defendant has acted unlawfully,” id.,
it “does not impose a probability requirement.” Twombly, 550
U.S. at 556.
Because of this requirement of factual allegations plausibly
suggesting an entitlement to relief, “the tenet that a court must
accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by merely
conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at
1949. Similarly, a pleading that only “tenders naked assertions
devoid of further factual enhancement” will not suffice. Iqbal,
129 S. Ct. at 1949 (internal citations and alterations omitted).
Rule 8 “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (citations omitted).
Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to
state a claim is contemplated. Generally, when contemplating
a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R.
Civ. P. 12(c), the following matters outside the four corners
of the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint,
or (4) any matter of which the court can take judicial notice
for the factual background of the case. 1
III. ANALYSIS
*4 After carefully considering whether Plaintiff's Amended
Complaint should be dismissed, the Court answers this
question in the affirmative for the reasons stated in
Defendant's memorandum of law. (Dkt. No. 13, Attach. 2, at
7-9 [Def.’s Mem. of Law].) To those reasons, the Court adds
the following analysis.
As an initial matter, the Court finds that Plaintiff's claims,
to the extent that they seek an invalidation of a Family
Court child support order, are barred by the Rooker-Feldman
doctrine. Under the Rooker-Feldman doctrine, a federal court
lacks subject-matter jurisdiction where the following four
elements are met: (1) the plaintiff has lost in state court;
(2) the plaintiff complains of injuries caused by the state
court judgment; (3) the plaintiff invites the district court
to review and reject the state court judgment; and (4) the
state court judgment was rendered before the district court
proceedings commenced. Ganiyu v. Lopez, 19-CV-11605,
2020 WL 1467356, at *2 (S.D.N.Y. Mar. 25, 2020) (citing
Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85
[2d Cir. 2005]). It is evident from the Amended Complaint
that Plaintiff received a child support order against him, that
he now complains that the proceedings that resulted in that
order caused his alleged constitutional injuries, and that the
child support order was rendered before he commenced this
action. Additionally, although Plaintiff frames his argument
in terms of constitutional violations and inadequacies in the
proceedings underlying the support order, such arguments
amount to little more than a request for this Court to assess
whether the Family Court's reliance on the marriage license to
establish paternity was correct, something which this Court is
not permitted to do. See Kramer v. Dane, 17-CV-5253, 2018
WL 4489284, at *3 (E.D.N.Y. Sept. 19, 2018) (“[T]he fact that
plaintiffs assert that their constitutional rights were violated
during the state court proceedings does not except their claims
from the Rooker-Feldman doctrine.”); Davis v. Westchester
Cnty. Family Court, 16-CV-9487, 2017 WL 4311039, at *8
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Hall v. Clinton County, Not Reported in Fed. Supp. (2020)
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(S.D.N.Y. Sept. 26, 2017) (finding “[t]he fact that Plaintiff is
challenging the constitutional adequacy of the proceedings is
of no help to him” in precluding application of the Rooker-
Feldman doctrine to his claims) (collecting cases). 2
*5 To the extent that Plaintiff seeks entitlement to relief
beyond a nullification of the child support order that would be
excepted from jurisdiction by the Rooker-Feldman doctrine,
the Court also finds that Plaintiff's claims pursuant to 42
U.S.C. § 1983 fail under Fed. R. Civ. P. 12(b)(6) as time-
barred. Plaintiff attached to the Amended Complaint a copy
of the Family Court's summons to a fact-finding hearing to
be held on July 30, 2012, before Support Magistrate Michael
J. Howley, and a copy of the Petition for Child Support filed
against Plaintiff that was the basis for that hearing. (Dkt.
No. 12, Attach. 1.) The Amended Complaint alleges that it
was the commencement of the proceedings against Plaintiff
through this petition in June 2012 that caused the deprivation
of his rights. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) The
Supreme Court has held that, “[b]ecause § 1983 claims are
best characterized as personal injury actions ... a State's
personal injury statute of limitations should be applied in
all § 1983 claims.” Owens v. Okure, 488 U.S. 235, 240-41
(1989). The Supreme Court found in particular that New
York's general or residual statute related to personal injury
actions should be applied, which sets a three-year statute of
limitations. Owens, 488 U.S. at 249-50; accord, Phillips v.
City of New York, 304 F. Supp. 3d 305, 311 (E.D.N.Y. 2018).
Such statute of limitations begins “when a plaintiff has a
complete and present cause of action, that is when the plaintiff
can file suit and obtain relief,” or, in other words, “when the
wrongful act or omission results in damages, ... and once the
plaintiff knows or has reason to know of the injury which
is the basis of his action.” McDonough v. Smith, 898 F.3d
259, 265 (2d Cir. 2018) rev'd on other grounds McDonough
v. Smith, 139 S.Ct. 2149 (2019).
In this case, Plaintiff acknowledges in his Amended
Complaint that his alleged constitutional harms occurred as
a result of the child support proceedings against him in late
June 2012. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) It is
therefore reasonable to find that Plaintiff knew or should have
known of the proceedings against him and the child support
order at the time those events occurred in 2012. Of note,
Plaintiff does not allege that he was never informed of either
the proceedings against him or of the child support order
itself until a later time. Nonetheless, Plaintiff did not file his
initial Complaint in this action until December 3, 2018, more
than six years later. (Dkt. No. 1 [Pl.’s Compl.].) Although
Plaintiff argues in his opposition memorandum of law that he
“promptly filed a complaint with the Federal District Court as
soon as he discovered his rights had indeed been violated,” he
offers no explanation in either the Amended Complaint or his
opposition memorandum of law as to why he seemingly did
not know of the alleged constitutional violations until 2018.
(Dkt. No. 15, at 5 [Pl.’s Opp'n Mem. of Law].) Additionally, it
does not matter when Plaintiff actually discovered a violation.
The relevant consideration is when he knew or had reason to
know of the alleged injury, and without any factual allegation
that Plaintiff was somehow left in the dark for six years
about the basis for the child support proceedings and order
against him (despite the factual statement in the order that
the proceeding against Plaintiff was authorized because he
and the child's mother had gotten married on July 24, 2010),
the Court cannot find that he has alleged facts plausibly
suggesting that he did not have reason to know of the alleged
injury as long ago as June of 2012. As a result, the Court finds
that Plaintiff's claims are barred by the statute of limitations.
The Court also finds that tolling is not warranted under
the circumstances alleged. Although the Second Circuit
recognizes the continuing violation doctrine, it has qualified
that the doctrine applies only to claims “composed of a
series of separate acts that collectively constitute one unlawful
practice,” or “claims that by their nature accrue only after
the plaintiff has been subjected to some threshold amount
of mistreatment.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d
Cir. 2015). Although Plaintiff alleges that the violations of
his rights “continue to this day” because he is still subject to
the child support order, the fact that he continues to suffer an
ongoing injury does not bring his claim under the auspices
of the continuing violation doctrine. In other words, each
payment Plaintiff is required to make under the child support
order is not a new and separate act and injury, but merely a
consequence of the initial act, namely, the proceedings and
the issuance of the child support order in 2012. Plaintiff had
a fully formed claim upon the occurrence of the relevant
proceedings and the issuance of the child support order. The
Court therefore declines to find that the continuing violation
doctrine applies to Plaintiff's claims, and finds instead that
there is no other apparent basis for tolling the statute of
limitations. Plaintiff's claims pursuant to 42 U.S.C. § 1983 are
therefore time-barred and must be dismissed.
*6 In the alternative to the finding that Plaintiff's claims are
time-barred and/or covered by the Rooker-Feldman doctrine,
the Court finds that he has not alleged facts plausibly stating
any claim upon which relief can be granted. As an initial
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matter, Defendant is correct that Plaintiff has again failed
to allege any facts plausibly suggesting a municipal custom,
policy, or practice to merit holding Defendant liable for the
alleged constitutional violations. The only apparent policy
identified by Plaintiff is the policy of allowing use of a
marriage license to create a presumption of paternity. (Dkt.
No. 12, at 5 [Pl.’s Am. Compl.].) However, as Defendant
argues, this “policy” is in fact a long-standing part of New
York common law, not merely a practice or rule put in
place by Defendant or the Clinton County Family Court.
See In re Findlay, 253 N.Y. 1, 6-7 (N.Y. 1930) (discussing
the presumption of legitimacy). Notably, Plaintiff has not
alleged facts plausibly suggesting that Defendant had a policy
of disallowing rebuttal of the presumption of legitimacy or
any other action of that nature that would have prevented
Plaintiff from providing evidence to rebut that presumption.
As a result, Plaintiff has not alleged facts plausibly suggesting
that the alleged constitutional violations were a result of any
policy imposed by Defendant, and the Court therefore finds
that Defendant cannot be held liable for the claims asserted
against it.
Even if Plaintiff had alleged facts plausibly suggesting the
existence of a municipal custom, policy, or practice, the Court
finds that Plaintiff has not stated a claim upon which relief
can be granted. Many of the claims asserted by Plaintiff
(i.e., that Defendant has stripped him of his status as a man,
violated his right to privacy, violated his right to raise his
child as he pleases, violated his right to trial by jury, and
defamed him) are either not facially viable legal claims under
the circumstances or are so vaguely asserted (i.e., without
sufficient supporting factual allegations) that they cannot be
found to plausibly state a claim upon which relief can be
granted. The Court therefore finds little need to discuss these
claims in any detail, but finds that they must be dismissed.
With regard to Plaintiff's due process claim, and particularly
Plaintiff's argument that Defendant's acceptance of the
marriage license as proof of paternity was a violation of
his right to due process, as the Court has previously found,
Plaintiff has not alleged facts plausibly suggesting that he
was denied the opportunity to present counter-evidence to
overcome the presumption that a child born in the context of
a marriage is the child of the married spouses. Rather, the
summons attached to the Amended Complaint notified him
of a fact-finding hearing that preceded the issuance of the
child support order. Plaintiff has not alleged facts plausibly
suggesting that he did not receive sufficient notice of the
commencement of the proceedings before the child support
order was enacted against him (or that he even attended
the hearing). Moreover, the summons specifically states that
“failure to appear will result in the entry of an order on default
unless service has been made by mail alone, in which event no
default may be entered without proof satisfactory to the court
that you have received actual notice of the commencement
of this proceeding.” (Dkt. No. 12, Attach. 1, at 1.) Without
any factual allegation plausibly suggesting that Plaintiff (a)
lacked notice of the hearing such that a default was improper,
or (b) attended the hearing but was denied the opportunity to
provide evidence to counter the presumption created by the
marriage license, the Court cannot find that he has alleged
facts plausibly suggesting that Defendant violated his due
process rights in relying on the marriage license when issuing
the child support order.
Plaintiff also argues that his due process rights were
violated by the fact that a Support Magistrate of the Family
Court granted the petition for child support because the
Federal Manual of Child Support requires that “[p]roceedings
conducted pursuant to either the expedited judicial or
expedited administrative process must be presided over an
individual who is not a judge of the court.” (Dkt. No. 15,
at 4 [Pl.’s Opp'n Mem. of Law].) However, even if Plaintiff
has alleged facts plausibly suggesting that Defendant violated
this provision of the Federal Manual of Child Support (a
finding that the Court does not make), he has made no factual
allegation plausibly suggesting how any such violation in
turn violated his due process rights under the United States
Constitution. 3
*7 Having already afforded Plaintiff an opportunity to
amend his Complaint, the Court finds that it need not grant
Plaintiff an opportunity to amend the Amended Complaint
to attempt to cure any of the above-mentioned deficiencies,
In any event, it finds those deficiencies to be substantive in
nature, due to the findings that the Court lacks subject-matter
jurisdiction to consider any claims that fall under the Rooker-
Feldman doctrine, and that any other potential claims are
untimely (and Plaintiff has not offered any indication that he
could allege facts to plausibly suggest that those claims were
in fact timely).
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 13)
is GRANTED; and it is further
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Hall v. Clinton County, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
ORDERED that Plaintiff's Amended Complaint (Dkt. No.
12) is DISMISSED. All Citations
Not Reported in Fed. Supp., 2020 WL 1923236
Footnotes
1 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof
for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573, 2011 WL 2135734, at *1 (2d Cir. June 1,
2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary
judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1]
documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the
complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case);
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering
a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the complaint.... Where
a document is not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... However, even
if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the
authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of
fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”)
(internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 72 (2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate
by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may
nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without
converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted).
2 The Court notes that, although Defendant argues that subject-matter jurisdiction is lacking over Plaintiff's
claims based on the domestic relations exception, the Second Circuit recently held that the domestic relations
exception does not apply in federal-question cases. Deem v. DiMell-Deem, 941 F.3d 618, 621 (2d Cir. 2019).
Although the Second Circuit also found that, notwithstanding the inapplicability of the domestic relations
exception, the separate domestic relations abstention doctrine does apply to federal-question cases, the
Court need not determine whether abstention would be appropriate in this case based on its finding that
the Rooker-Feldman doctrine divests the Court of subject-matter jurisdiction over any claims that would be
covered by that abstention. Finally, the Court notes that it may sua sponte consider the Rooker-Feldman
doctrine (even though Defendant never invoked it) because pursuant to Fed. R. Civ. P. 12(h)(3), the Court
may sua sponte consider whether it lacks subject-matter jurisdiction over a claim.
3 Of note, the New York Family Court Act indicates that support magistrates are in fact not “a judge of the
court” as Plaintiff appears to assert. See N.Y. Fam. Ct. § 439(a) (indicating that, although support magistrates
are appointed to have authority over certain matters related to support proceedings, their findings in many
cases are limited or overseen by “a judge of the court”). Given that Plaintiff himself acknowledges that the
decision-maker on the support petition was a “Family Court Support Magistrate” (an acknowledgment that is
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Hall v. Clinton County, Not Reported in Fed. Supp. (2020)
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confirmed by the attachment to the Amended Complaint), the Court finds that Plaintiff has not alleged facts
plausibly suggesting that the use of a support magistrate was in anyway contrary to federal law or policy.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Haughey v. County of Putnam, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 4468066
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Richard J. HAUGHEY, administrator of
the Estate of William J. Haughey, Plaintiff,
v.
COUNTY OF PUTNAM, et al., Defendants.
No. 18-CV-2861 (KMK)
|
Signed September 26, 2022
Attorneys and Law Firms
Oscar Michelen, Esq., Cuomo LLC, Mineola, NY, Counsel
for Plaintiff.
Rita Dave, Esq., Rita Dave PC, Brooklyn, NY, Counsel for
Plaintiff.
Drew William Sumner, Esq., Sumner Law LLP, White Plains,
NY, Counsel for Putnam County Defendants.
James Randazzo, Esq., Portale Randazzo LLP, White Plains,
NY, Counsel for Putnam County Defendants.
Michael Adam Czolacz, Esq., Kenneth Ethan Pitcoff, Esq.,
Cristina Soller, Esq., Morris Duffy Alonso & Faley, New
York, NY, Counsel for Carmel County Defendants.
John Diaconis, Esq., Peter Francis Harrison, Esq., Bleakley
Platt & Schmidt LLP, White Plains, NY, Counsel for
Defendant Daryl Johnson.
Jennifer Anne Casey, Esq., Casey Law Group, PLLC,
Bellmore, NY, Counsel for Defendant Anthony M. Porto.
OPINION & ORDER
KENNETH M. KARAS, District Judge:
*1 Richard J. Haughey “(Plaintiff”), administrator of
the Estate of William J. Haughey (“Decedent”), brings
this Action against Defendants the County of Putnam
(“Putnam”); Robert Geoghegan (“Geoghegan”) and Robert
Efferen (“Efferen”), Putnam fire investigators; Dough Casey
(“Casey”), an employee of Putnam's Fire Department; the
Town of Carmel (“Carmel”); Daryl Johnson, Chief of
the Carmel Fire Department (“Johnson”); Michael Nagle
(“Nagle”), a detective in the Carmel Police Department;
Robert Behan (“Behan”) and John Dearman (“Dearman”),
sergeants in the Carmel Police Department; Justin Fischer
(“Fischer”), an officer in the Carmel Police Department;
Joseph Charbonneau (“Charbonneau”), a Carmel Town
Attorney; five John Doe employees of Putnam and Carmel
(“Does 1–5”); Anthony F. Porto, Sr. (“Porto, Sr.”), and
Anthony M. Porto, Jr. (“Porto”) (jointly, “the Portos”), owners
and operators of Smalley's Inn & Restaurant (“Smalley's Inn,”
“Smalley's,” or “the Inn”); and TNT Café, Inc. (“TNT”),
a corporate entity owned by the Portos and operating
Smalley's (collectively, “Defendants”). Plaintiff brings this
Action pursuant to 42 U.S.C. § 1983, asserting constitutional
violations related to Decedent's lengthy imprisonment on
false state charges of arson. 1 (See generally Second. Am.
Compl. (“SAC”) (Dkt. No. 56).)
Before the Court are three Motions for Summary Judgment:
the first was filed by Putnam, Casey, Efferen, and Geoghegan
(the “Putnam Defendants”); the second by Johnson; the
third by Carmel and Nagle (the “Carmel Defendants”)
(collectively, the “Motions”). (See Dkt. Nos. 153, 156, 159.) 2
For the following reasons, the Motions are denied in part and
granted in part.
I. Background
A. Factual Background
The following facts are taken from the Putnam Defendants’
Statement pursuant to Local Rule 56.1, (Putnam's Defs.’ Rule
56.1 Statement in Supp. of Mot. for Summ. J (“Putnam Defs.’
56.1”) (Dkt. No. 155)), Johnson's Statement pursuant to Local
Rule 56.1, (Johnson's Rule 56.1 Statement in Supp. of Mot.
for Summ. J (“Johnson's’ 56.1”) (Dkt. No. 158)), Carmel
Defendants’ Statement pursuant to Local Rule 56.1, (Carmel
Defs.’ Rule 56.1 Statement in Supp. of Mot. for Summ. J
(“Carmel Defs.’ 56.1”) (Dkt. No. 165)), Plaintiff's Counter
Statements pursuant to Local Rule 56.1, (Pl.’s Counter Rule
56.1 Statement in Opp'n to Mot. for Summ. J (“Pl.’s Counter
56.1 – Putnam Defs.”) (Dkt. No. 170); Pl.’s Counter Rule
56.1 Statement in Opp'n to Mot. for Summ. J (“Pl.’s Counter
56.1 – Carmel Defs.”) (Dkt. No. 173); Pl.’s Counter Rule 56.1
Statement in Opp'n to Mot. for Summ. J (“Pl.’s Counter 56.1
– Johnson”) (Dkt. No. 176)), and Putnam's Counter Statement
Pursuant to Local Rule 56.1 (Putnam Defs.’ Counter Rule
56.1 in Supp. of Mot. for Summ. J (“Putnam Defs.’ Counter
56.1”) (Dkt. No. 184)). The facts are recounted “in the light
most favorable” to Plaintiff, the non-movant on the claims
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subject to Federal Rule of Civil Procedure 56. Torcivia v.
Suffolk County, 17 F.4th 342, 354 (2d Cir. 2021).
*2 In the early hours of the morning on March 10, 2007,
there was a small fire in the men's bathroom at Smalley's Inn
in Carmel, New York, which was owned at the time by Porto.
(Johnson's 56.1 ¶ 1; Carmel Defs.’ 56.1 ¶ 1; Putnam Defs.’
¶ 1.) 3 Decedent and Porto were both present at Smalley's
at the time of the fire. (Johnson's 56.1 ¶¶ 2–3.) Decedent
used the men's bathroom twice prior to the discovery of the
fire. (Putnam Defs.’ 56.1 ¶¶ 17, 22.) When the fire was
discovered, Decedent, along with other patrons and staff,
helped extinguish the fire. (Johnson's 56.1 ¶ 4.) After the
fire was extinguished, there was a confrontation between
Porto and Decedent, during which Porto accused Decedent
of setting the fire. (Johnson's 56.1 ¶ 5; see also Putnam
Defs.’ 56.1 ¶ 52.) 4 After the confrontation, Decedent left
Smalley's and drove to McCarthy's, a bar located a couple
miles away from Smalley's, and Porto called the Carmel
Police Department. (Johnson's 56.1 ¶ 6; Putnam Defs.’ 56.1
¶¶ 52, 57.)
Nagle, a Detective in the Carmel Police Department,
responded to the call. (Johnson's 56.1 ¶ 8.) When Nagle
arrived at Smalley's, several officers from the Carmel Police
Department were already there. (Id. ¶ 9.) Nagle inspected
the bathroom where the fire occurred, took photographs,
and interviewed witnesses. (Id. ¶¶ 12–14.) In the bathroom,
Nagle observed charred debris on the floor and in a urinal.
(Carmel Defs.’ 56.1 ¶ 3.) He also noticed that a ceiling tile
had been removed, revealing charring on the wood in the
ceiling subspace. (Id.) Multiple witnesses informed Nagle
that Decedent was the last person to use the men's room
prior to the discovery of the fire and that they observed
Decedent borrow a cigarette lighter shortly before the fire was
discovered. (Id. ¶¶ 8, 11.)
Meanwhile, Town of Kent Police Offer Gerald Ranieri
(“Ranieri”) approached Decedent on the back porch of
McCarthy's and asked Decedent if he would accompany
him to Smalley's so that he could speak with members of
the Carmel Police Department. (Putnam Defs.’ 56.1 ¶ 60.)
Decedent voluntarily agreed and entered the back seat of
Ranieri's patrol car. (Id. ¶¶ 62–64.) Once at Smalley's, Nagle
introduced himself to Decedent and asked if Decedent would
accompany him to the Carmel police station. (Id. ¶ 80.)
Decedent agreed. (Id. ¶ 81.) At the station, Decedent spoke
to Nagle in one of the interview rooms. (Id. ¶¶ 85, 88.)
When asked about the fire, Decedent stated that he did not
do anything wrong, and he requested to leave. (Carmel Defs.’
56.1 ¶ 21.) A different police officer drove Decedent back
to his car, which was parked at McCarthy's, and from there,
Decedent drove home. (Putnam Defs.’ 56.1 ¶¶ 91–92.)
*3 The next morning, Nagle returned to Smalley's. (Carmel
Defs.’ 56.1 ¶ 24.) Also present later that day were
Putnam County Fire Investigators Geoghan and Efferen
(the “Fire Investigation Team”), Johnson, the Chief of the
Carmel Fire Department, and Casey, a liaison between the
Putnam County Bureau of Emergency Services and the Fire
Investigation Team. (Putnam Defs.’ 56.1 ¶¶ 97–104.) Some
time later, Geoghegan prepared a report summarizing the Fire
Investigation Team's findings (the “Report”). (Johnson's 56.1
¶ 27.) The Report included photographs taken by Geoghegan
and Efferen, diagrams they made of the fire location, and
a narrative summarizing their investigation. (Id. ¶ 29.) The
narrative portion of the Report states, in relevant part:
The Fire Investigation Team arrived
on scene at 1405 hours. CPD
Detective Michael Nagle and CFD
Chief Daryl Johnson arrived on scene
a few moments later. Detective Nagle
informed F.I.T. members present and
Chief Johnson that at approximately
0100 hours on 03-10-07 a male had
allegedly tried to set a fire in the Men's
Room at Smalley's [I]nn. Detective
Nagle requested that the F.I.T. examine
the men's room and determine the
cause of the fire; whether it was
accidental, natural, or incendiary in
nature. Detective Nagle informed the
team that he had statements from
witnesses present at the time of the
incident that a male had placed paper
towels in between the drop ceiling and
lit the paper. Witnesses stated that the
male then sat at the bar and as the fire
grew in size, smoke started to enter
the bar area. The male, identified as
Mr. William Haughey, then entered the
bathroom and removed a drop ceiling
tile and pulled out the burning paper
towels with his bare hands.
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(Carmel Defs.’ 56.1 ¶ 26.) The Fire Investigation Team
“determined that the fire was incendiary in nature because
there was no electrical wiring, electrical outlets, electrical
appliances, heating units, or pipes in the vicinity of the
fire.” (Id. ¶ 27.) Plaintiff disputes the Report's conclusion,
stating that it “was impossible for [the Fire Investigation
Team] to legitimately make [the] conclusion” that the fire was
incendiary in nature. (Pl.’s Counter 56.1 – Carmel Defs. ¶
226.)
On March 11, 2007, Sergeant Dearman and Officer Fischer
of the Carmel Police Department arrested Decedent while he
was at the Knights of Columbus bar. (Putnam Defs.’ 56.1 ¶¶
141, 149.) Decedent was charged with two felonies: criminal
mischief in the third degree, as well as arson in the second
degree. (Id. ¶ 154.) After Decedent was arraigned, he was
transported to the Putnam County Correctional Facility. (Id.
¶ 155.) Decedent's criminal trial was held in February 2008.
(Id. ¶ 191.) After a week-long trial, a jury convicted Decedent
of arson on February 15, 2008. (Id. ¶ 212.) In April 2008,
Decedent was sentenced to ten years of imprisonment and five
years of post-release supervision. (Id. ¶ 214.)
On December 6, 2013, while Decedent was incarcerated, he
filed a petition for a writ of habeas corpus in the United
States District Court for the Southern District of New York
(the “Petition”). (See Pet., Haughey v. Gonyea, No. 13-
CV-8768 (Dkt. No. 2).) On May 5, 2016, nearly nine years
after Decedent's conviction, Putnam County District Attorney
Robert Tendy (“Tendy”) filed a memorandum of law in the
Haughey v. Gonyea case joining in Decedent's Petition. (See
Mem. of Law in Supp. of Pet., Haughey v. Gonyea, No. 13-
CV-8768 (Dkt. No. 94).) The memorandum stated that “the
evidence adduced at trial was legally insufficient” and that
Decedent “has made a clear and convincing showing that he
is actually innocent.” (Id. at 6; see also Pl.’s Counter 56.1
– Putnam Defs. ¶ 355.) On May 23, 2016, Judge Vincent
L. Briccetti granted the Petition, thereby vacating Decedent's
conviction, sentence, and the underlying indictment with
prejudice and unconditionally releasing Decedent. (See Judg.,
Haughey v. Gonyea, No. 13-CV-8768 (Dkt. No. 97); see also
Pl.’s Counter 56.1 – Putnam Defs. ¶ 369.)
B. Procedural History
*4 Because the procedural background of this Action has
been summarized in this Court's previous Opinion & Order
on Defendants’ Motions To Dismiss the SAC (the “MTD
Opinion”), the Court assumes familiarity therewith and
supplements the procedural history since the issuance of that
opinion. (See MTD Op. 8–9.) On March 30, 2020, the Court
denied Porto's and Johnson's Motions to Dismiss and denied
the Carmel Defendants’ Motion to Dismiss in large part,
except that the Court dismissed Defendants Charbonneau,
Behan, Dearman, and Fischer from the Action. (See id. at 32.)
On November 18, 2020, the Court adopted a Case
Management Plan and Scheduling Order. (Dkt. No. 103.) On
March 17, 2021, the Court granted Plaintiff's second request
for an extension of time to complete fact discovery after
initially denying Plaintiff's first request. (Dkt. No. 115.) On
June 1, 2021, the Court granted Plaintiff's third request to
extend the fact discovery deadline. (Dkt. No. 123.) On August
16, 2021, the Court granted the Carmel Defendant's request
to extend the fact discovery deadline. (Dkt. No. 133.)
Meanwhile, on March 24, 2021, the Putnam Defendants filed
an Answer to the SAC. (Dkt. No. 117.) Johnson filed an
Answer to the SAC on July 27, 2021. (Dkt. No. 130.)
On December 6, 2021, the Court set a briefing schedule
for Defendants’ anticipated Motions for Summary Judgment.
(Dkt. No. 149.) On January 18, 2022, the Court granted the
Carmel Defendants’ request to extend their time to file their
anticipated Motion. (Dkt. No. 151.)
On February 8, 2022, the Putnam Defendants filed their
Motion for Summary Judgment and accompanying papers.
(Dkt. Nos. 153–155, 160.) On the same day, Johnson filed his
Motion for Summary Judgment and accompanying papers.
(Dkt. Nos. 156–158, 162, 164.) The Carmel Defendants also
filed their Motion for Summary Judgment and accompanying
papers on February 8, 2022. (Dkt. Nos. 159, 161, 163,
165.) On May 9, 2022, Plaintiff filed his Opposition
and accompanying papers. (Dkt. Nos. 168–176.) On June
10, 2022, after receiving an extension, (Dkt. No. 179),
Defendants filed their Replies and accompanying papers.
(Dkt. Nos. 180–185.)
Meanwhile, on May 19, 2022, due to the passing of Decedent,
the Court granted Plaintiff's request to replace Decedent as
Plaintiff. (Dkt. No. 179.)
II. Discussion
A. Standard of Review
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Summary judgment is appropriate where 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); see also Psihoyos v. John Wiley &
Sons, Inc., 748 F.3d 120, 123–24 (2d Cir. 2014) (same). “In
determining whether summary judgment is appropriate,” a
court must “construe the facts in the light most favorable
to the non-moving party and ... resolve all ambiguities and
draw all reasonable inferences against the movant.” Brod v.
Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation marks
omitted); see also Borough of Upper Saddle River v. Rockland
Cnty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y.
2014) (same). “It is the movant's burden to show that no
genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also
Red Pocket, Inc. v. Interactive Commc'ns Int'l, Inc., No. 17-
CV-5670, 2020 WL 838279, at *4 (S.D.N.Y. Feb. 20, 2020)
(same); Berry v. Marchinkowski, 137 F. Supp. 3d 495, 521
(S.D.N.Y. 2015) (same).
“However, when the burden of proof at trial would fall on
the nonmoving party, it ordinarily is sufficient for the movant
to point to a lack of evidence to go to the trier of fact on an
essential element of the nonmovant's claim,” in which case
“the nonmoving party must come forward with admissible
evidence sufficient to raise a genuine issue of fact for trial
in order to avoid summary judgment.” CILP Assocs., L.P. v.
Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.
2013) (alteration and quotation marks omitted). Further, “[t]o
survive a [summary judgment] motion ..., [a nonmovant]
need[s] to create more than a ‘metaphysical’ possibility that
his allegations were correct; he need[s] to ‘come forward with
specific facts showing that there is a genuine issue for trial,’
” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012)
(emphasis omitted) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), “and
cannot rely on the mere allegations or denials contained in the
pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d
310, 322 (S.D.N.Y. 2014) (quotation marks omitted); see also
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When
a motion for summary judgment is properly supported by
documents or other evidentiary materials, the party opposing
summary judgment may not merely rest on the allegations or
denials of his pleading....”).
*5 “On a motion for summary judgment, a fact is material
if it might affect the outcome of the suit under the governing
law.” Royal Crown Day Care LLC v. Dep't of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks
omitted). At this stage, “[t]he role of the court is not to resolve
disputed issues of fact but to assess whether there are any
factual issues to be tried.” Brod, 653 F.3d at 164 (quotation
marks omitted). Thus, a court's goal should be “to isolate
and dispose of factually unsupported claims.” Geneva Pharm.
Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.
2004) (quotation marks omitted) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986)).
When ruling on a motion for summary judgment, a district
court should consider only evidence that would be admissible
at trial. See Nora Beverages, Inc. v. Perrier Group of Am.,
Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party
relies on affidavits ... to establish facts, the statements ‘must
be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant ... is
competent to testify on the matters stated.’ ” DiStiso v. Cook,
691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P.
56(c)(4)); see also Sellers v. M.C. Floor Crafters, Inc., 842
F.2d 639, 643 (2d Cir. 1988) (“Rule 56 requires a motion
for summary judgment to be supported with affidavits based
on personal knowledge....”); Baity v. Kralik, 51 F. Supp.
3d 414, 419 (S.D.N.Y. 2014) (disregarding “statements not
based on [the] [p]laintiff's personal knowledge”); Flaherty v.
Filardi, No. 03-CV-2167, 2007 WL 163112, at *5 (S.D.N.Y.
Jan. 24, 2007) (“The test for admissibility is whether a
reasonable trier of fact could believe the witness had personal
knowledge.” (quotation marks omitted)).
As a general rule, “district courts may not weigh evidence or
assess the credibility of witnesses at the summary judgment
stage.” Jeffreys v. City of New York, 426 F.3d 549, 551 (2d Cir.
2005); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986) (noting that at the summary judgment stage, the
court is not to “weigh the evidence and determine the truth
of the matter”); Vital v. Interfaith Med. Ctr., 168 F.3d 615,
622 (2d Cir. 1999) (“Assessments of credibility and choices
between conflicting versions of the events are matters for
the jury, not for the court on summary judgment.” (citation
omitted)). Where the evidence presents “a question of ‘he
said, she said,’ ” the court “cannot ... take a side at the
summary judgment stage.” Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010); see also
Kassel v. City of Middletown, 272 F. Supp. 3d 516, 535
(S.D.N.Y. 2017) (noting that “it is not the role of the [c]ourt
at summary judgment to resolve [a] factual clash”); Bale
v. Nastasi, 982 F. Supp. 2d 250, 258–59 (S.D.N.Y. 2013)
(stating that “[w]here each side ... tells a story that is at
least plausible and would allow a jury to find in its favor,
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it is for the jury to make the credibility determinations and
apportion liability, and not for the court”). And, even if the
non-movant's evidence is “thin, [a non-movant's] own sworn
statement is adequate to counter summary judgment.” Scott v.
Coughlin, 344 F.3d 282, 290–91 (2d Cir. 2003) (holding that
“[t]he credibility of [Plaintiff's] statements and the weight of
contradictory evidence may only be evaluated by a finder of
fact”).
B. Analysis
1. False Arrest
*6 The statute of limitations for false arrest claims filed in
New York under § 1983 is three years. See Rivera v. City
of New York, No. 20-CV-9968, 2022 WL 1523165, at *4
(S.D.N.Y. May 13, 2022). “Although § 1983 claims accrue
when the plaintiff knows or has reason to know of the harm ...
there remains some inconsistency in Second Circuit authority
as to exactly when a false arrest claim accrues.” Bynum v.
Doe, No. 16-CV-6332, 2019 WL 1259568, at *3 (E.D.N.Y.
Mar. 19, 2019) (first citing Connolly v. McCall, 254 F.3d
36, 41 (2d Cir. 2001); and then citing Singleton v. City of
New York, 632 F.2d 185, 191 (2d Cir. 1980)); see also id.
(determining that the plaintiff's false arrest claim accrued on
the date of his arraignment, and not the date of his arrest).
Whether Plaintiff's false arrest claim accrued on the date of his
arrest or the date of Decedent's arraignment—both of which
occurred on March 11, 2007—Plaintiff does not dispute that
his false arrest claim is timed barred. (See Pl.’s Counter 56.1 –
Putnam Defs.’ ¶ 222.) Plaintiff also fails to address this claim
in his Oppositions to each of the Motions. (See generally
Pl.’s Mem. of Law in Opp'n to Putnam Defs.’ Mot. (“Pl.’s
Opp'n – Putnam Defs.”) (Dkt. No. 169); Pl.’s Mem. of Law in
Opp'n to Carmel Defs.’ Mot. (“Pl.’s Opp'n – Carmel Defs.”)
(Dkt. No. 172); Pl.’s Mem. of Law in Opp'n to Johnson's
Mot. (“Pl.’s Opp'n – Johnson.”) (Dkt. No. 175)). This claim is
therefore deemed abandoned and dismissed from the Action.
See Fujian Ocean Shipping Co. v. O.W. Bunker Far E.
(S) PTE. LTD., No. 16-CV-401, 2022 WL 902668, at *6
(S.D.N.Y. Mar. 28, 2022) (“[F]ederal courts have found that
a [party] abandons their claim when they fail to address it
in their opposition papers to summary judgment.” (second
alteration in original) (citation omitted)); Ragland v. City
of New York, No. 20-CV-3556, 2022 WL 580923, at *7
(S.D.N.Y. Feb. 25, 2022) (“Federal courts may deem a claim
abandoned when a party moves for summary judgment on
one ground and the party opposing summary judgment fails
to address the argument in any way.”); Cooper v. City of
New Rochelle, 925 F. Supp. 2d 588, 600–01 (S.D.N.Y. 2013)
(“[The] [p]laintiffs have failed to oppose [the] [d]efendants’
motion [for certain claims].... Therefore, [the] [p]aintiffs are
deemed to have abandoned such claims, and they are hereby
dismissed.”).
2. Fair Trial
a. Fabricating Evidence
“To prove a [§] 1983 fair trial claim, a plaintiff must establish
that (1) the officer created false information, (2) the officer
forwarded the false information to prosecutors, (3) the false
information was likely to influence a jury's decision, and (4)
the plaintiff suffered a deprivation of life, liberty, or property
as a result of the officer's actions.” Kee v. City of New York,
12 F.4th 150, 168 (2d Cir. 2021) (citation omitted); see also
Bellamy v. City of New York, 914 F.3d 727, 745 (2d Cir. 2019)
(“When a police officer creates false information likely to
influence a jury's decision and forwards that information to
prosecutors, he violates the accused's constitutional right to
a fair trial.” (citation omitted)). “[A §] 1983 fair trial claim
is available to a defendant even if the underlying criminal
charges are dismissed and the fabricated evidence is never
presented at trial.” Kee, 12 F. 4th at 168 (citing Frost v. N.Y.C.
Police Dep't, 980 F.3d 231, 249–50 (2d Cir. 2020)). Indeed,
“a [§] 1983 claim for the denial of a right to a fair trial based
on an officer's provision of false information to prosecutors
can stand even if the officer had probable cause to arrest
the [§] 1983 plaintiff,” meaning that “fair trial claims cover
kinds of police misconduct not addressed by false arrest or
malicious prosecution claims.” Garnett v. Undercover Officer
C0039, 838 F.3d 265, 277–78 (2d Cir. 2016). “Where the
plaintiff asserts a [§] 1983 fair-trial claim based on fabricated
evidence, all that is required is that the underlying criminal
proceeding be terminated in such a manner that the lawsuit
does not impugn an ongoing prosecution or outstanding
conviction.” Smalls v. Collins, 10 F. 4th 117, 139 (2d Cir.
2021) (emphasis omitted).
Plaintiff argues that Defendants “deceived the District
Attorney's Office into bringing arson charges against
[Haughey] by submitting false reports and making a host
of misrepresentations misleading the District Attorney,
including (1) all possible electrical causes for the fire had been
eliminated and thus the fire was incendiary, (2) the failure to
secure the fire scene for 13-hours, and leaving it under Porto's
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control, did not have any impact on the ability to determine
that the fire was incendiary, and (3) several eyewitnesses
observed Haughey start the fire and then return to sit down at
the bar.” (Pl.’s Opp'n – Putnam Defs. 4–5; see also Pl.’s Opp'n
– Carmel Defs. 4–6; Pl.’s Opp'n – Johnson 4–9.) In support of
this argument, Plaintiff submits the expert report of William
E. Tulipane (“Tulipane”), a retired Fire Marshal and expert
in fire suppression and investigation with over 40 years of
experience. (See Pl.’s Opp'n – Carmel Defs. Ex. I.1 (“Tulipane
Expert Report”) 7–8 (Dkt. No. 172-16).) 5 Tulipane stated
that, after reviewing the case materials, he determined that
“several serious mistakes were made that are responsible for
the declaration that this fire was incendiary.” (Id. at 11.)
According to Tulipane, the first mistake was that “there
was no response by the Carmel Fire Department or any
other Fire Department at the time of the incident. The
establishment should have been vacated and secured to ensure
an investigation that would not be compromised.... The
fire investigator however arrived some 13 hours after the
fire.” (Id. (emphasis omitted).) Tulipane also pointed out
several other mistakes made by the fire investigators. For
example, Tulipane stated that the Fire Investigation Team
failed to: “examine the fire damage where the smoke eater
was located”; “document with photos the damage to the
floor above the dropped ceiling, not only from below but
from the [second] floor room directly above”; “examine
the circuit the smoke eater was connected to”; “locate and
inspect the electrical panel”; and to “take measurements” (Id.
at 13–14.) Tulipane also stated that “testimony indicates
that Detective Nagle informed the assigned fire investigator
Robert Geoghegan who arrived 13 hours after the occurrence,
that someone had started the fire, lending prejudice to the
investigation.” (Id. at 12.) Tulipane concluded, “It is therefore
my opinion having investigated thousands of fires and having
years of training in the related field of fire investigation
that the cause of this fire could not be ascertained with
any degree of scientific certainty....” (Id. at 15.) Plaintiff
argues that a notation in the Fire Inspection Team's paperwork
corroborates Tulipane's conclusion that the Fire Inspection
Team's inspection was insufficient. (See Pl.’s Opp'n – Putnam
Defs. 6.) Specifically, there is a notation indicating that
the team failed to inspect the electrical panel. (See id.) It
reads, “Tripped / Blown: Panel Not Inspected.” (Pl.’s Opp'n –
Carmel Defs. Ex. P (“Fire Investigation Team Notes”) (Dkt.
No. 172-21).)
*7 Defendants, on the other hand, contend that the
“conclusion that the fire cause and origin was incendiary in
nature was not false or fabricated.” (Putnam Defs.’ Mem.
6; see also Carmel Defs.’ Mem. 17–19.) In support of their
position, Defendants submit the expert report of Thomas D.
Schneiders (“Schneiders”), who served in the Philadelphia
Fire Department for 24 years and has been serving as a fire
expert in the private sector since his retirement in 1996. (See
Decl. of Kenneth E. Pitcoff, Esq. in Supp. of Carmel Defs.’
Mot. for Summ. J. (“Pitcoff Decl.”) Ex. M (“Schneiders
Expert Report”) 5 (Dkt. No. 161-17). 6 After reviewing the
record and conducting a site visit to Smalley's on October 6,
2021, Schneiders concluded that the “fire was intentionally
started by the application and holding of an open flame
device, i.e., matches lighter, etc., to the paper products present
in the first-floor men's room above the drop ceiling.” (Id. at 8.)
Schneiders further stated that he was “in agreement with the
opinions of Putnam County Fire Investigator Robert Efferen
and Investigator Robert Geoghegan. Due to this minor fire,
they were competent in their evaluation of all sides of the fire,
i.e., the fire's limited outward spread, the fire's early detection
and successful early extinguishment.” (Id. at 7.)
“[S]ummary judgment is inappropriate when there is a battle
of the experts.” Knight v. New York State Dep't of Corr., No.
18-CV-7172, 2022 WL 1004186, at *12 (S.D.N.Y. Mar. 30,
2022); see also Rouse v. Vanier, No. 19-CV-06862, 2021 WL
5544935, at *5 (W.D.N.Y. Nov. 27, 2021) (“The conflicting
expert opinions before the [c]ourt on the instant motion
demonstrate the existence of genuine issues of material fact,
making summary judgment inappropriate.”); Smith v. City of
New York, No. 12-CV-4922, 2015 WL 4643125, at *5 n.6
(S.D.N.Y. Aug. 5, 2015) (“We cannot resolve this ‘battle of
the experts’ at summary judgment.”); Realtime Data, LLC v.
Stanley, 897 F. Supp. 2d 146, 153 (S.D.N.Y. 2012) (“[W]hen
there are dueling experts, both of whom have put forward
opinions in contradiction with each other, and when those
opinions are important to resolution of a material factual
dispute, summary judgment may not be appropriate.”); In re
Refco Inc. Sec. Litig., No. 07-CV-8663, 2011 WL 13243784,
at *16 n.21 (S.D.N.Y. Mar. 28, 2011) (declining to grant
summary judgment because of a battle of the experts).
Moreover, Decedent stated at his deposition that he was
falsely accused of starting the fire. (See e.g., Decl. James A.
Randazzo, Esq. in in Supp. of Putnam Defs.’ Mot. (“Randazzo
Decl.”) Ex. B (“Pl. Dep. Tr.”) 458 (Dkt. No. 160-36).)
“[P]laintiff's testimony is sufficient to create a disputed fact
as to” whether he started the fire. Carrillos v. Inc. Vill.
of Hempstead, 87 F. Supp. 3d 357, 378 (E.D.N.Y. 2015);
see also Bellamy, 914 F.3d at 746 (“[A] § 1983 plaintiff's
testimony alone may be independently sufficient to raise a
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genuine issue of material fact.”); Marom v. Blanco, No. 15-
CV-2017, 2019 WL 3338141, at *9 (S.D.N.Y. July 25, 2019)
(denying summary judgment on fair trial claim where the
defendant and plaintiff gave conflicting testimony because
“[t]his testimony creates a triable issue with respect to the
element of fabrication” (citing Bellamy, 914 F.3d at 746)).
Plaintiff additionally presents evidence creating a genuine
dispute of material fact as to whether Defendants knowingly
misled the prosecutors into thinking that Decedent started
the fire. First, ADA Robert Noah (“Noah”) stated in his
deposition that he relied on the Fire Investigation Team's
conclusion that the fire was not electrical:
Q: [D]id you rely on the fire team's conclusion that there
was no electrical cause for the fire?
A: I'm sure we relied on their conclusions and Mr. Porto's
testimony that there was no electricity up there.
(Pl.’s Opp'n – Putnam Defs. Ex. A (“Noah Dep. Tr.”) 101:7–
12 (Dkt. No. 169-1).) Given that the Fire Investigation Team's
notes indicate that they did not inspect the electrical panel,
Plaintiff has created the inference that Defendants knowingly
misled the prosecutors into believing that the fire could not
have been electrical.
*8 Second, Geoghegan stated in his deposition that when he
first arrived at Smalley's he expressed concern that the scene
had been unsecured for 13 hours:
Q: What did you say, to your recollection, to Mr. Nagle
when he gave you that information [about what had
occurred]?
A: I said, well, it's been 13 hours-plus since this happened.
I said the scene hasn't been protected. So if it's a crime
scene, it's—you know, it's questionable because no one
secured the scene for over 13 hours.
(Pl.’s Opp'n – Carmel Defs. Ex. D (“Geoghegan Dep. Tr.”)
28:18–24 (Dkt. No. 172-7).) Geoghegan further stated that he
had never been called to a scene that had been unsecured for
that long. (See id. at 65:1–6.) However, none of these concerns
is reflected in the Fire Investigation Team's Report, on which,
as established, the prosecutors relied. (See generally Pl.’s
Opp'n – Putnam Defs. Ex. N (“Fire Investigation Team
Report”) (Dkt. No. 169-19).) What the Report does state,
however, is that “Detective Nagle informed the Team that
he had statements from witnesses present at the time of the
incident that a male had placed paper towels in between the
drop ceiling and lit the paper.” (Id. at 1.) However, during his
deposition, Nagle stated:
Q: Had you informed the fire investigative team that
you had in your possession, statements from witnesses
present that a male had placed towels in between the drop
ceiling and the ceiling and lit the paper?
A: I did not have statements that said that.
...
Q: Now, you indicated that you did not have witness
statements—you indicated that you had not—you did
not possess any witness's statements staying [sic] that a
male had placed paper towers in between the dropped
ceiling; correct?
A: No one saw that, no.
Q: So where do you think that they got this information
from?
...
A: I don't know.
(Pl.’s Opp'n – Putnam Defs.’ Ex. F (“Nagle Dep. Tr. 2”),
at 95:21–96:2, 98:2–13 (Dkt. No. 169-11).) This creates the
inference that either: 1) Detective Nagle lied to the Fire
Investigation Team about whether he spoke to any witnesses
or about what the witnesses actually said, or 2) the Fire
Investigation Team fabricated the portion of the Report which
stated that Detective Nagle had statements indicating that
eyewitnesses saw someone “placed paper towels in between
the drop ceiling and lit the paper.” (Fire Investigation Team
Report 1.)
In sum, “[c]onsidering all of the evidence, a reasonable
jury could conclude that the contents of [the Report] were
fabricated.” Marom, 2019 WL 3338141, at *9; see also
Kee, 12 F.4th at 171 (“Thus, construing the evidence most
favorably to [the plaintiff], there is a triable issue as to
whether [the] [d]etective [ ] created false statements that were
conveyed to the [prosecutor] to support the charges in the
criminal complaint....”); Bellamy, 914 F.3d at 746 (denying
summary judgment on fabrication of evidence claim where
the absence of an incriminating statement in the detective's
report, coupled with the plaintiff's denial of making
that statement, “support[ed] an inference of fabrication.”).
Accordingly, Defendants’ Motions for summary judgment on
Plaintiff's fabrication of evidence claim are denied.
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b. Brady
*9 “[A] fair trial claim can [also] arise when police or
prosecutors withhold material exculpatory or impeaching
evidence from a defendant.” Hincapie v. City of New York, 434
F. Supp. 3d 61, 75 (S.D.N.Y. 2020) (citing Brady v. Maryland,
373 U.S. 83, 87 (1963)). “To prevail on a Brady claim, a
plaintiff must demonstrate that: (1) the evidence at issue is
favorable to the accused, either because it is exculpatory or
because it is impeaching; (2) the evidence was suppressed
by the State; and (3) prejudice ensued.” Id. (quoting Leka v.
Portuondo, 257 F.3d 89, 98 (2d Cir. 2001) (quotation marks
and alterations omitted)).
Plaintiff argues that Defendants “violated [Decedent's] Brady
rights by suppressing three categories of material from the
District Attorney: (1) the impeaching information concerning
their fire investigation, (2) the falsity of their fire investigation
reports, and (3) the falsity of their representations and
omissions to prosecutors.” (Pl.’s Opp'n – Putnam Defs.’ 16.)
However, Plaintiff does not distinguish his Brady claim from
his fabrication of evidence and malicious prosecution claims,
given that they are based on the same underlying facts. (See,
e.g., Pl.’s Opp'n – Putnam Defs. 15–18.) “Several courts
in the Second Circuit have [ ] found that Brady claims
are duplicative of both fair trial and malicious prosecution
claims where the alleged underlying conduct is the same....”
Hutchins v. Solomon, No. 16-CV-10029, 2018 WL 4757970,
at *18 (S.D.N.Y. Sept. 29, 2018); see also Deanda v. Hicks,
137 F. Supp. 3d 543, 578 (S.D.N.Y. 2015) (“[I]n this context,
[the] [p]laintiff's claim of a Brady violation is duplicative of
her malicious prosecution claim”). Defendants’ Motions for
summary judgment on Plaintiff's Brady claim are therefore
granted.
3. Malicious Prosecution
“To prevail on a malicious prosecution claim under New
York law and federal 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.” Kee, 12 F.4th at 161–62 (quotation marks omitted).
“For a malicious prosecution claim under [§] 1983, a plaintiff
also must demonstrate a sufficient post-arraignment liberty
restraint.” Id. (quotation marks omitted).
First, Putnam Defendants argue that Plaintiff has failed to
establish the initiation element. (See Putnam Defs.’ Mem. 12–
13.) “A defendant initiates a proceeding when [ ]he ‘play[s]
an active role in the prosecution, such as giving advice and
encouragement or importuning the authorities to act.” Torres
v. City of New York, No. 20-CV-4007, 2022 WL 955152,
at *6 (E.D.N.Y. Mar. 30, 2022) (quoting Rohman v. N.Y.C.
Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000)). “An arresting
officer may also be held liable for malicious prosecution if
[ ]he creates false information likely to influence a jury's
decision and forwards that information to prosecutors.” Id.
(quotation marks and alterations omitted). “Showing that the
police failed to make a complete and full statement of facts
to the District Attorney, misrepresented or falsified evidence,
withheld evidence or otherwise acted in bad faith satisfies the
initiation element of malicious prosecution.” Id. (quotation
marks omitted).
Here, construing the facts in the light most favorable to
Plaintiff, the Court finds that a reasonable jury could find
that the Defendants initiated and/or continued the prosecution
against Decedent. Several facts support Plaintiff's version
of events. First, Nagle stated during his deposition that the
decision to arrest Decedent “was based on motive, witness
statements, video, [Decedent] being the only one in the
bathroom, and the results of the fire investigation team, and
then a consultation with [Assistant District Attorney (“ADA”)
Charbonneau.” (Decl. of Peter F. Harrington, Esq. in Supp.
of Johnson's Mot. (“Harrington Decl.”) Ex. E (“Nagle Dep.
Tr. 1”) 115:18–21 (Dkt. No. 162-8).) 7 Thus, the decision to
arrest Decedent was made at least in part after a consultation
with ADA Charbonneau, which presumably required Nagle to
summarize the facts of the investigation. Second, Geoghegan
stated at his deposition, “I hand delivered everything I had
to the district attorney's office upon [ ] request.” (Geoghegan
Dep. Tr. 56:11–12.) Third, as discussed, ADA Noah stated at
his deposition that he relied at least in part on the Report in
going forward with the prosecution of Decedent:
*10 Q: Would it be fair to say that you would have relied
on the completeness and the accuracy of Mr. Geoghegan
and Mr. Efferen's investigation and the conclusions that
the fire was an arson in the presentation of your case to
the grand jury?
...
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A: I believe they would have been a contributing factor.
(Noah Dep. Tr. 94:10–18.) The Report's conclusion that the
fire was incendiary was therefore at least a “contributing
factor” in the prosecution's decision to present Decedent's
case to the grand jury. See Torres, 2022 WL 955152, at *7
(finding that where the defendant officer met with the ADA,
“[i]f she did indeed fail to make a complete and full statement
of facts to the Assistant District Attorney, this is enough for
her to have participated in the initiation of a claim” (quotation
marks omitted)); Ying Li v. City of New York, 246 F. Supp.
3d 578, 606 (E.D.N.Y. 2017) (finding the initiation element
met and noting that the defendant officers “cannot hide behind
the decision of the DA to prosecute when they, according
to [the] [p]laintiff's allegations, provided the prosecutor with
false information” (quotation marks omitted)).
Moreover, Nagle and Geoghegan are “alleged to have
subsequently testified falsely against [Decedent] during the
[ ] criminal trial.” Davis v. City of New York, 296 F.R.D.
127, 130 (E.D.N.Y. 2013). (See Pl.’s Opp'n – Putnam
Defs. 24–25.) “Should a jury credit [P]laintiff's version of
events, [D]efendants’ wrongdoing could suffice to satisfy the
initiation or continuation element of a malicious prosecution
claim.” Davis, 296 F.R.D. at 130. “These allegations,
accepted as true, support a reasonable inference that the
prosecution would not have continued had the [Defendants]
not testified falsely.” Buari v. City of New York, 530
F. Supp. 3d 356, 385 (S.D.N.Y. 2021). The question of
whether Defendants’ or Plaintiff's version of events should be
credited “can only be resolved by evaluating the credibility
and probative weight of [each Party's] account, and that
assessment can only be made by a jury.” Dufort v. City of
New York, 874 F.3d 338, 351 (2d Cir. 2017) (vacating district
court's decision to grant summary judgment to the defendants
on the plaintiff's malicious prosecution claim). The Court
therefore finds that that a genuine dispute of material fact
exists with respect to the initiation element.
Because Defendants do not appear to dispute the favorable
termination element, (see generally Putnam Defs.’ Mem;
Carmel Defs.’ Mem.; Johnson's Mem.), the Court will
proceed to the probable cause element. “Because the lack
of probable cause is an element of a malicious prosecution
claim, ‘probable cause is a complete defense against a claim
for malicious prosecution.’ ” Hernandez v. County of Nassau,
No. 17-CV-1646, 2022 WL 513929, at *8 (E.D.N.Y. Feb.
20, 2022) (quoting Ashley v. City of New York, 992 F.3d
128, 136 (2d Cir. 2021)). “Probable cause, in the context of
malicious prosecution, has ... been described as such facts and
circumstances as would lead a reasonably prudent person to
believe the plaintiff guilty.” Boyd v. City of New York, 336 F.3d
72, 76 (2d Cir. 2003). Thus, “[t]he probable cause standard in
the malicious prosecution context is slightly higher than the
standard for false arrest cases.” Stansbury v. Wertman, 721
F.3d 84, 95 (2d Cir. 2013).
*11 The Court has already found that a genuine dispute
of material fact exists as to whether Defendants falsified
the Report and whether their conclusion that the fire was
incendiary was fabricated. See supra II.B.2.a. It is clear from
the record that there is some evidence that Defendants relied
on this allegedly fabricated evidence in presenting the case to
the grand jury and at trial. For example, Nagle testified in the
grand jury:
[A]: There would be no other reason—there is [sic] no
electrical wires up there—there would be no other reason
—unless someone starting a fire—that something would
combust in that area.
Q: In your opinion?
A: Based—I went to Arson School for a week and based
on the [Fire Investigation Team] their training and
expertise, they concluded there would be no other reason
that a fire would start there other than someone starting
it.
(Pl.’s Opp'n – Putnam Defs. Ex. H (“Grand Jury Tr.”) 39:14–
23 (Dkt. No. 169-14).) Similarly, Geoghegan testified during
Decedent's criminal trial that the fire could not have been
electrical, and that the Fire Investigation Team eliminated that
possibility through their investigation:
Q: Was there anything around the origin point that would
lead you to believe that this was electrical in any way?
A: No, sir.
(Pl.’s Opp'n – Putnam Defs. Ex. G (“Trial Tr.”) 846:24–
847:3 (Dkt. No. 169-13).) However, as discussed above,
there is a notation in the Fire Investigation Team's notes
indicating that the team failed to inspect the electrical panel:
“Tripped / Blown: Panel Not Inspected.” (Fire Investigation
Team Notes.) Construing the evidence in the light most
favorable to Plaintiff, this creates at least the inference that
Geoghegan and Efferen fabricated their conclusion that the
fire could not have been electrical.
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Additional evidence suggests that Defendants intentionally
misled the prosecutors into believing there was probable
cause to prosecute Decedent. As discussed, although
Geoghegan stated that he expressed concern that the scene of
the fire had been unsecured for 13 hours, he failed to include
that fact in the Report. (Geoghegan Dep. Tr. 27:19–28:24.)
Together, these two facts create the inference that the Fire
investigation Team fabricated their conclusion that the fire
could not have been accidental or natural. Finally, although
the Report states that “Detective Nagle informed the team
that he had statements from witnesses present at the time of
the incident that a male had placed paper towels in between
the drop ceiling and lit the paper,” (Report), Nagle stated at
his deposition that he had no such statements, creating the
inference that these statements were fabricated, (Nagle Dep.
Tr. 2, at 95:21–96:2, 98:2–13).
“[T]he presumption of probable cause established by a
grand jury indictment may be rebutted by evidence that the
indictment was procured by fraud, perjury, the suppression
of evidence or other police conduct undertaken in bad faith.”
Stansbury, 721 F.3d at 95 (alterations and quotation marks
omitted). “A plaintiff may demonstrate fraud or perjury
through ‘evidence establishing that the [ ] witnesses have
not made a complete and full statement of facts either to
the [g]rand [j]ury or to the District Attorney, that they have
misrepresented or falsified evidence, that they have withheld
evidence or otherwise acted in bad faith.’ ” Ying Li, 246 F.
Supp. 3d at 612 (citation omitted).
The Court therefore finds that a genuine dispute of material
fact exists as to whether there was probable cause to
prosecute Decedent. See Anilao v. Spota, 774 F. Supp. 2d 457,
494 (E.D.N.Y. 2011) (finding that the plaintiff sufficiently
overcame the presumption of probable cause by alleging that
the grand jury indictment was based on falsified evidence and
testimony); Brandon v. City of New York, 705 F. Supp. 2d
261, 273–74 (S.D.N.Y. 2010) (denying summary judgment to
defendant with respect to malicious prosecution claim where
jury could reasonably find that the indictment was secured
through bad faith or perjury).
*12 Finally, as for the malice element, “[m]alice may be
inferred [ ] from the absence of probable cause.” Franco v.
Gunsalus, No. 16-CV-634, 2022 WL 93570, at *6 (N.D.N.Y.
Jan. 10, 2022) (quoting Dufort, 874 F.3d at 353). Thus, “[l]ack
of probable cause generally raises an inference of malice
sufficient to withstand summary judgment.” Torres, 2022 WL
955152, at *9 n.6 (quoting Ricciuti v. N.Y.C. Transit Auth.,
124 F.3d 123, 131 (2d Cir. 1997)); see also Boyd, 336 F.3d
at 78 (“Once we find an issue of material fact as to probable
cause, the element of malice also becomes an issue of material
fact as well. A lack of probable cause generally creates an
inference of malice.”).
In sum, therefore, Defendants are not entitled to summary
judgment on Plaintiff's malicious prosecution claim, and
Defendants’ Motions on that claim are denied.
4. Monell
“[T]o prevail on a claim against a municipality under [§] 1983
based on acts of a public official, a plaintiff is required to
prove: (1) actions taken under color of law; (2) deprivation of
a constitutional or statutory right; (3) causation; (4) damages;
and (5) that an official policy of the municipality caused
the constitutional injury.” Roe v. City of Waterbury, 542
F.3d 31, 36 (2d Cir. 2008) (citing Monell v. Dep't of Social
Servs., 436 U.S. 658, 690–91 (1978)), cert. denied, 558 U.S.
933 (2009). The fifth element reflects the notion that “a
municipality may not be held liable under § 1983 solely
because it employs a tortfeasor.” Bd. of Cnty. Comm'rs of
Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); see also
Newton v. City of New York, 566 F. Supp. 2d 256, 270
(S.D.N.Y. 2008) (“As subsequently reaffirmed and explained
by the Supreme Court, municipalities may only be held
liable when the municipality itself deprives an individual of
a constitutional right.”). In other words, a municipality may
not be liable under § 1983 “by application of the doctrine of
respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S.
469, 478 (1986) (italics omitted); see also Vassallo v. Lando,
591 F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting that “a
municipal entity may only be held liable where the entity itself
commits a wrong” (emphasis omitted)). Instead, there must
be a “direct causal link between a municipal policy or custom
and the alleged constitutional deprivation.” City of Canton v.
Harris, 489 U.S. 378, 385 (1989); see also City of St. Louis
v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnments
should be held responsible when, and only when, their official
policies cause their employees to violate another person's
constitutional rights.”).
“In determining municipal liability, it is necessary to conduct
a separate inquiry into whether there exists a ‘policy’ or
‘custom.’ ” Davis v. City of New York, 228 F. Supp. 2d 327,
336 (S.D.N.Y. 2002), aff'd, 75 F. App'x 827 (2d Cir. 2003). A
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plaintiff may satisfy the “policy or custom” requirement by
alleging one of the following:
(1) a formal policy officially endorsed
by the municipality; (2) actions taken
by government officials responsible
for establishing the municipal policies
that caused the particular deprivation
in question; (3) a practice so consistent
and widespread that, although not
expressly authorized, constitutes a
custom or usage of which a
supervising policy-maker must have
been aware; or (4) a failure by
policymakers to provide adequate
training or supervision to subordinates
to such an extent that it amounts to
deliberate indifference to the rights of
those who come into contact with the
municipal employees.
*13 Brandon v. City of New York, 705 F. Supp. 2d 261, 276–
77 (S.D.N.Y. 2010) (citations omitted). When relying on the
second of these theories (i.e., the actions of a policymaker)
to establish municipal liability, a plaintiff must allege that
the official is a “final policymaker for the local government
in a particular area ... involved in the action.” Jeffes v.
Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (alteration, citation,
and quotation marks omitted); see also Jett v. Dallas Ind.
Sch. Dist., 491 U.S. 701, 737 (1989) (explaining that a
policymaker must “have the power to make official policy on
a particular issue”). “It is well settled that municipal liability
may be established based on the single acts of a municipal
official with ‘final policymaking authority.’ ” Canzoneri
v. Inc. Vill. of Rockville Ctr., 986 F. Supp. 2d 194, 204
(E.D.N.Y. 2013) (quoting Praprotnik, 485 U.S. at 123). In the
Second Circuit, an official has final authority “if his decisions,
at the time they are made, for practical or legal reasons
constitute the municipality's final decisions.” Roe, 542 F.3d
at 38 (citation and quotation marks omitted). Accordingly,
where a policymaker wholly delegates certain policy powers
to a subordinate, the subordinate may herself qualify as a
policymaker, thus subjecting the municipality to liability. See
Stalter v. County of Orange, No. 15-CV-5274, 2016 WL
8711397, at *11 (S.D.N.Y. Aug. 5, 2016) (finding that a
plaintiff adequately pleaded that a sheriff had “delegated all
final policy-making authority as to disciplinary matters” to
an undersheriff, and thereby sufficiently pleaded a Monell
action based on the undersheriff's conduct (record citation
and quotation marks omitted)); Lathrop v. Onondaga County,
220 F. Supp. 2d 129, 138 (N.D.N. Y 2002) (holding that a
Deputy Commissioner of the New York State Division of
Criminal Justice Services (“DCJS”) had final policymaking
authority with respect to employment decisions, because the
Commissioner left such decisions to the Deputy, spent little
time reviewing such matters, and the Deputy understood
himself as autonomous). The Second Circuit has also
explained that “[w]here a city official has final authority over
significant matters involving the exercise of discretion, his
choices represent government policy.” Gronowski v. Spencer,
424 F.3d 285, 296 (2d Cir. 2005) (citation and quotation
marks omitted). Further, “the official in question need not be a
municipal policymaker for all purposes. Rather, with respect
to the conduct challenged, he must be responsible under
state law for making policy in that area of the municipality's
business.” Jeffes, 208 F.3d at 57 (citation, emphasis, and
quotation marks omitted).
Plaintiff argues that “Putnam County, through its Bureau of
Emergency Services, delegated to Geoghegan and Efferen
final policymaking authority with respect to assisting [Chief
Johnson] with the determination of whether a fire was an
arson.” (Pl.’s Opp'n – Putnam Defs. 21.) In support of this
argument, Plaintiff points to Putnam County Code § 52-1,
which provides that the “Commissioner of the Bureau of
Emergency Services shall, with respect to County Emergency
Services matters insure proper emergency response to all
natural and man-made emergencies.” Putnam Cnty. Code
§ 52-1(C). Plaintiff further cites to the Putnam County
Fire Investigation Team Standard Operating Guidelines
(“Standard Operating Guidelines”), which appear to have
been created by the Putnam County Bureau Emergency
Services. (See generally Pl.’s Opp'n – Putnam Defs. Ex.
R (“Standard Operating Guidelines”) (Dkt. No. 169-23).)
The Standard Operating Guidelines provide that the Fire
Investigation Team's purpose is to “provide Fire Departments
and others with a comprehensive and professional fire
Investigation”; “assist law enforcement arson investigators
when requested”; “contact the appropriate law enforcement
agency after identifying, photographing, and preserving
evidence if a fire is determined to be incendiary in origin”;
and “submit all evidence to the appropriate law enforcement
agency responsible for prosecution and to assist when
requested in the preparation of court testimony.” (Id. at
6.) The Standard Operating Guidelines further provide
that ‘Fire Investigators shall be responsible for providing
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fire departments with a proper fire investigation,” noting
that “Fire Investigation Team members shall conduct all
investigations as criminal investigations to eliminate the
potential for legal mistakes.” (Id. at 8.) Additionally
the Standard Operating Guidelines state that “[a] fire
determination is confidential and shall be distributed only
to the Incident Commander and/or Jurisdictional Chief.
Under no circumstances should anyone else be informed
of a determination unless so directed by the Incident
Commander.” (Id. at 9.) Finally, “[r]eports must be timely,
concise, coherent and complete.” (Id.)
Plaintiff also points to a March 12, 2009 letter addressed
to Decedent from Robert McMahon (“McMahon”), then
Commissioner of the Putnam County Bureau of Emergency
Services, in which he describes the role of the Fire Chief
and the Fire Investigation Team. (See generally Pl.’s Opp'n –
Putnam Defs. Ex. S (“McMahon Letter”) (Dkt. No. 169-24).)
As McMahon described it, the fire investigators:
*14 assist the [F]ire [C]hief in
his determination as to whether
the fire, in his opinion, was
suspicious, incendiary or accidental.
(The Fire Chief is charged with
making a determination of accidental,
suspicious, or incendiary after every
fire.) ... [If] the determination is
made that the fire is suspicious or
incendiary (perhaps set or definitely
set) the Chief will turn it over to
the investigating police agency.... The
investigators may [ ] be called to testify
as to their findings and present their
credentials to the court as a qualified
or experienced investigator.
(Id. at 1.) Geoghegan stated in his deposition that this letter
accurately reflected his understanding of his role, adding
that no one reviewed the Fire Investigation Team's decisions
or actions at the scene with respect to the assistance they
provided to Chief Johnson. (See Geoghegan Dep. Tr. 46:4–7.)
Geoghegan further explained the decision-making process,
describing it as “a consensus of all team members that are
present, discuss what they found, because everybody has
a specific role. And we come to a consensus on possible
cause of the fire, whether it be incendiary, accidental, or
natural.” (Id. at 43.) Additionally, Geoghegan stated:
Q: And is it fair to say that the Bureau of Emergency
Services would defer to the on-scene investigators such
as yourself?
A: Yes.
Q: And that would have been the policy or the custom
back in 2007 when you investigated the Smalley's fire;
correct?
A: Correct.
(Id. at 47:1–7.) Similarly, Efferen agreed during his
deposition that the Bureau of Emergency Services defers
to on-scene fire investigators with respect to their
determinations about the cause of fires. (See Pl.’s Opp'n –
Putnam Defs. Ex. E (“Efferen Dep. Tr.”) 104:5–22 (Dkt. No.
169-9).)
Cases within the Second Circuit and beyond have found that
final policymaking authority to be delegated in situations
similar to this one. In Lathrop, the court found that the
DCJS Commissioner delegated final policymaking authority
to the Deputy Commissioner with respect to the Office of
Public Safety where the Commissioner testified that she
“spends very little time on issues relating to the Office of
Public Safety,” and that the Deputy Commissioner was the
“primary decision maker with respect to the functions within
the Office of Public Safety.” Lathrop, 220 F. Supp. 2d at
138. In that case, the Deputy Commissioner testified that he
made decisions relevant to the Office of Public Safety “based
upon information provided to him by his staff.” Id. Similarly,
“[i]n Rookard v. Health & Hospitals Corp., 710 F.2d 41 (2d
Cir. 1983), the Second Circuit concluded that the Executive
Director and the Vice President for Corporate Affairs of a
hospital were final policymakers for employment decisions,
relying in part on the fact that their superior, when sent
evidence that the plaintiff was removed from her position for
uncovering fraud at the hospital, referred the evidence to the
Executive Director.” McDonald v. Bd. of Educ. of City of New
York, No. 01-CV-1991, 2003 WL 21782685, at *5 (S.D.N.Y.
July 31, 2003) (citing Rookard, 710 F.2d at 45–46). In another
case, the court in Cyr v. Addison Rutland Supervisory Union
found that school board had delegated final policymaking
authority to the school superintendent, noting that because the
school board “members did not believe they had the power
to contravene the notices against trespass suggests [that the]
[s]uperintendent [ ] had final policymaking authority over the
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issuance of notices against trespass.” 60 F. Supp. 3d 536, 555
(D. Vt. 2014) (citing Rookard, 710 F.2d at 46).
*15 Based on this line of cases and the evidence on which
Plaintiff relies, Plaintiff has demonstrated that Chief Johnson
was a final policymaker with respect to the decision of
whether a fire was natural or incendiary. Specifically, as the
Standard Operating Guidelines, the Commissioner's letter,
and the deposition testimony of Geoghegan and Efferen
make clear, Chief Johnson, assisted by Geoghegan and
Efferen, was primarily responsible for determining the cause
of a fire and forwarding relevant information to the proper
authorities. Whether Geoghegan and Efferen were also final
policymakers presents a closer question. However, even if
a reasonable jury could not find that Putnam delegated
final policymaking authority to Geoghegan and Efferen,
“a municipality is liable where the policymaker ratifies a
subordinate's decisions or acts.” Lathrop, 220 F. Supp. 2d at
136 (citation and quotation marks omitted). Thus, “[i]n light
of the evidence that [Chief Johnson] has final authority with
respect to [determining the cause of a fire,] Defendants have
not shown that they are entitled to summary judgment on
Plaintiffs’ Monell claims....” Barzilay v. City of New York,
––– F. Supp. 3d. ––––, No. 20-CV-4452, 2022 WL 2657169,
at *44 (S.D.N.Y. July 8, 2022). Defendants’ Motions are
therefore denied with respect to Plaintiff's Monell claims.
5. Conspiracy
“To prove a § 1983 conspiracy, a plaintiff must show: ‘(1)
an agreement between a state actor and a private party; (2)
to act in concert to inflict an unconstitutional injury; and
(3) an overt act done in furtherance of that goal causing
damages.’ ” Kalamaras v. Cnty. of Nassau, No. 17-CV-1068,
2019 WL 4452281, at *19 (E.D.N.Y. Sept. 16, 2019) (quoting
Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d
Cir. 2002)). “However, because conspiracies are by their
very nature secretive operations, they may have to be proven
by circumstantial, rather than direct, evidence.” Amato v.
Hartnett, 936 F. Supp. 2d 416, 440 (S.D.N.Y. 2013) (quotation
marks and alteration omitted). Additionally, “[i]t is well
settled that a conspiratorial agreement can simply be a ‘tacit
understanding,’ ... and a person ‘can be a conspirator by
agreeing to facilitate only some of the acts leading up to the
substantive offense.’ ” Peacock v. City of Rochester, No. 13-
CV-6046, 2016 WL 2347448, at *11 (W.D.N.Y. May 4, 2016)
(first quoting United States v. Sabhnani, 599 F.3d 215, 244
(2d Cir. 2010); and then quoting Salinas v. United States, 522
U.S. 52, 65 (1997)).
Plaintiff argues that “[a] reasonable jury could find a meeting
of the minds between Detective Nagle and Chief Johnson ...,
Geoghegan and ... Efferen ..., and Porto, to falsely arrest and
convict Haughey.” (Pl.’s Opp'n – Putnam Defs. 24.) The Court
agrees. As discussed above, the Court has already found that
a reasonable jury could find for Plaintiff on his fabrication
of evidence and malicious prosecution claims. Crediting the
Plaintiff's evidence, a reasonable jury could similarly find that
Defendants knowingly concluded that the fire was incendiary
after conducting a shoddy investigation, as part of a joint
effort to falsely accuse Plaintiff of starting the fire. First,
Nagle spoke to Porto when he arrived at Smalley's after the
fire on the night of March 7, 2007. (See generally Nagle Dep.
Tr. 2, at 62.) Second, as the Report states,
Detective Nagle informed F.I.T.
members present and Chief Johnson
that at approximately 0100 hours
on 03-10-07 a male had allegedly
tried to set a fire in the Men's
Room at Smalley's [I]nn. .... Detective
Nagle informed the team that he had
statements from witnesses present at
the time of the incident that a male
had placed paper towels in between the
drop ceiling and lit the paper.
(Fire Investigation Team Report 1.) According to Tulipane,
by informing Johnson, Geoghegan, and Efferen that he
believed someone had started the fire, Nagle “prejudice[d] ...
the investigation.” (Tulipane Expert Report 12.) Third, as
Geoghegan stated at his deposition, it was “questionable”
that Smalley's was not secured for approximately 13 hours
between the time that the fire occurred and the time that the
Fire Investigation team arrived on the scene:
*16 Q: What did you say, to your recollection, to Mr.
Nagle when he gave you that information [about what
had occurred]?
A: I said, well, it's been 13 hours-plus since this happened.
I said the scene hasn't been protected. So if it's a crime
scene, it's—you know, it's questionable because no one
secured the scene for over 13 hours.
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(Geoghegan Dep. Tr. 28:18–24.) Tulipane stated in his expert
report that this 13-hour gap in which the scene was unsecured
further compromised the integrity of the investigation.
(Tulipane Expert Report 12.) Fourth, the evidence indicates
that the Fire Investigation Team did not adequately inspect
the electrical system, casting doubt on their conclusion that
they ruled out all natural or accidental causes of the fire. (See
Fire Investigation Team Notes (indicating that the electrical
panel was not inspected).) Fifth, Nagle consulted with the
prosecutor prior to making the decision to arrest Plaintiff. (See
Nagle Dep. Tr. 1, at 115:21.) Sixth, Nagle testified before the
grand jury. (See generally Grand Jury Tr. 39). Seventh and
finally, Geoghegan met with the prosecutor prior to the trial,
and both Geoghegan and Nagle testified at Plaintiff's criminal
trial. (See Geoghegan Dep. Tr. 130:2–7; Trial Tr. 964:13–16.)
Courts within the Second Circuit have denied summary
judgment for conspiracy claims in analogous circumstances.
For example, in Deskovic v. City of Peekskill, the court
denied summary judgment on the plaintiff's conspiracy claim
where the evidence indicated an agreement between City of
Peekskill police officers and an investigator with the Putnam
County sheriff's office in order to elicit a false confession
from the plaintiff during a polygraph exam. See 894 F. Supp.
2d 443, 466, 474 (S.D.N.Y. 2012). The court noted that “the
manner in which the polygraph examination was conducted
suggests that [the investigator] conducted the exam to elicit
a confession. [The investigator] employed methods and
techniques that he arguably knew could produce unreliable
results....” Id. at 466. Similarly, in Charles v. County of
Nassau, the court concluded that the plaintiff had raised a
genuine dispute of material fact as to whether the defendants
had conspired to falsely arrest and prosecute the plaintiff. No.
11-CV-2709, 2015 WL 10457215, at *13 (E.D.N.Y. Feb. 20,
2015), report and recommendation adopted, 116 F. Supp. 3d
107 (E.D.N.Y. 2015). Additionally, in Terry v. Hulse, the court
found that there was a genuine dispute of material fact as to
whether the defendants “conspired to cover up the alleged
use of excessive force against” the plaintiff. No. 16-CV-252,
2018 WL 4682784, at *13 (S.D.N.Y. Sept. 28, 2018). The
court specifically pointed to a conversation between two of
the defendants, who were corrections offices, in which they
discussed not letting the facility superintendent see close-up
photos of the plaintiff's injuries. See id.; see also DeMeo v.
Kean, 754 F. Supp. 2d 435, 447 (N.D.N.Y. 2010) (finding
that erased and destroyed video recordings in control of
defendants was “sufficient circumstantial evidence to permit
a jury to determine whether [the defendants] conspired ... to
partially erase and/or destroy the video evidence.”).
*17 “Based on this evidence, Plaintiff has created a fact
dispute regarding whether there was an agreement between”
Defendants with respect to the cause of the fire. Terry, 2018
WL 4682784, at *13. That is, a reasonable jury could find that
Defendants conspired to falsely accuse Plaintiff of setting the
fire. “Plaintiff has also provided details of time and place and
the alleged effects of the conspiracy, ... as well as overt acts
which Defendants engaged in which were reasonably related
to the promotion of the alleged conspiracy.” Id. (quotation
marks, citations, and alterations omitted); see also Leung v.
Town of Oyster Bay, No. 16-CV-4356, 2019 WL 5309995,
at *11 (E.D.N.Y. Oct. 21, 2019) (denying summary judgment
on the plaintiffs’ conspiracy claim where “the [p]laintiffs
submitted evidence that [t]own employees were not acting
in accordance with their official duties”); Gutierrez v. City
of New York, No. 15-CV-9907, 2019 WL 1427391, at *3
(S.D.N.Y. Mar. 29, 2019) (denying summary judgment on the
plaintiff's conspiracy claims); Peacock, 2016 WL 2347448, at
*11 (denying summary judgment on the plaintiff's conspiracy
claims where “there are disputed issues of material fact
regarding whether [one defendant] knew [another defendant]
had fabricated [the] [p]laintiff's confession and implicitly
condoned the misconduct by not alerting the prosecutor or
anyone else to [the] deception”).
The Court therefore finds that Defendants are not entitled to
summary judgment with respect to the Plaintiff's conspiracy
claims.
6. Personal Involvement
“It is well settled that, 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) (collecting cases);
see also Tangreti v. Bachmann, 983 F.3d 609, 616 (2d
Cir. 2020) (a § 1983 plaintiff must establish “that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution” (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009))). To establish
personal involvement, a plaintiff must show that:
(1) the defendant participated directly
in the alleged constitutional violation,
(2) the defendant, after being informed
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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
who committed the wrongful acts, or
(5) the defendant exhibited deliberate
indifference to the rights of inmates
by failing to act on information
indicating that unconstitutional acts
were occurring.
Grullon, 720 F.3d. at 139 (alterations, italics, and quotation
marks omitted).
The Putnam Defendants argue that “Plaintiff does not allege,
and does not have any evidence, that Casey was personally
involved in the fire investigation, [Decedent's] Plaintiff's
arrest, or prosecution,” “other than the fact that he was present
outside Smalley's on March 11, 2007.” (Putnam Defs.’ Mem.
18–19.) Plaintiff does not appear to dispute this argument.
(See generally Pl.’s Opp'n – Putnam Defs.) Thus, as discussed
above, Plaintiff's claims against Casey are deemed abandoned
and therefore dismissed. See Fujian Ocean Shipping, 2022
WL 902668, at *6 (“[F]ederal courts have found that a [party]
abandons their claim when they fail to address it in their
opposition papers to summary judgment.” (second alteration
in original) (citation omitted)); Ragland, 2022 WL 580923,
at *7 (“Federal courts may deem a claim abandoned when
a party moves for summary judgment on one ground and
the party opposing summary judgment fails to address the
argument in any way.”); Cooper, 925 F. Supp. 2d at 601
(“[The] [p]laintiffs have failed to oppose [the] [d]efendants’
motion [for certain claims].... Therefore, [the] [p]laintiffs are
deemed to have abandoned such claims, and they are hereby
dismissed.”).
Next, Johnson argues that “the uncontroverted evidence
clearly establishes that Johnson did not directly participate
in any of the alleged unlawful conduct.” (Johnson's Mem.
13.) The Court disagrees. Johnson does not dispute that he,
as the Chief of the Carmel Fire Department, responded to
Smalley's on the morning after the fire. (See Johnson's 56.1
¶ 19.) And as discussed above, McMahon, the Commissioner
of the Putnam County Bureau of Emergency Services, wrote
in a letter to Decedent that the “Fire Chief is charged
with making a determination of accidental, suspicious, or
incendiary after every fire,” and that the fire investigators
assist the Chief in making that decision. (McMahon Letter.)
Additionally, Geoghegan stated in his deposition that this
letter accurately reflected his understanding of his role as
a fire investigator vis-à-vis Chief Johnson, adding that the
fire investigators and the Fire Chief “come to a consensus
on possible cause of the fire, whether it be incendiary,
accidental, or natural.” (Geoghegan Dep. Tr. at 43:7–8.)
Further, contemporaneous reports reflect that Johnson played
an active role in the investigation. For example, the Report
mentions Johnson several times, indicating that he played an
active role in the investigation:
*18 On Saturday, March 10,
2007 at approximately 1400 hours
the Fire Investigation Team was
request to respond to [Smalley's]
by Carmel Police Department (CPD)
Detective Michael Nagle. Carmel
Fire Department (CFD) Chief Daryl
Johnson was notified and responded.
The Fire Investigation Team arrived
on scene at 1405 hours. CPD
Detective Michael Nagle and CFD
Chief Daryl Johnson arrived on scene
a few moments later. Detective Nagle
informed F.I.T. members present and
Chief Johnson that at approximately
0100 hours on 03-10-07 a male
had allegedly tried to set a fire in
the men's room at Smalley's Inn....
Efferen and Chief Johnson also viewed
surveillance video of the incident that
was taken by security cameras in the
bar area.... The Team, along with CFD
Chief Johnson examined the men's
room and found one drop ceiling tile
missing in the area directly above the
urinal and toilet.”
(Fire Investigation Team Report 1 (emphasis added).) Thus,
there is ample evidence that Johnson “participated directly”
in the alleged violations of Plaintiff's constitutional rights. See
Grullon, 720 F.3d. at 139. Indeed, “a reasonable jury could
conclude that [Plaintiff] has satisfied [§] 1983's ‘personal
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involvement’ requirement with respect to [Johnson] because
there is [ ] evidence that [Johnson] [participated in the
investigation and] creat[tion] of [the Report].” Marom, 2019
WL 3338141, at *11. Even if Johnson did not himself make
the determination that the fire was incendiary and instead
relied on Geoghegan and Efferen's conclusion, the Court finds
that is sufficient for a fact finder to conclude that Johnson
participated in the conduct underlying Plaintiff's claims. See,
e.g., Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir.
2001) (noting that “direct participation” includes “ordering or
helping others to do the unlawful acts, rather than doing them
[oneself]”). Thus, Johnson cannot escape liability under [§]
1983 for lack of personal involvement.
7. Qualified Immunity
“The doctrine of qualified immunity protects government
officials 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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quotation marks omitted). Qualified immunity shields a
defendant from standing trial or facing other burdens of
litigation “if either (a) the defendant's action did not violate
clearly established law, or (b) it was objectively reasonable
for the defendant to believe that his action did not violate such
law.” Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246,
250 (2d Cir. 2001) (quotation marks omitted).
The Supreme Court has held that when evaluating an asserted
qualified immunity defense, a court may begin by examining
whether a reasonable officer in Defendants’ position would
have believed his or her conduct would violate the asserted
constitutional right. See Pearson, 555 U.S. at 236 (overruling
Saucier v. Katz, 533 U.S. 194 (2001)), and explaining
that judges are no longer required to begin by deciding
whether a constitutional right was violated but are instead
“permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis
should be addressed first”). The Supreme Court has further
instructed that “[t]o be clearly established, a right must be
sufficiently clear that every reasonable official would [have
understood] that what he is doing violates that right. In other
words, existing precedent must have placed the statutory or
constitutional question beyond debate.” Reichle v. Howards,
566 U.S. 658, 664 (2012) (second alteration in original)
(citations and quotation marks omitted). Furthermore, “the
right allegedly violated must be established, not as a broad
general proposition, but in a particularized sense so that
the contours of the right are clear to a reasonable official.”
Id. at 665 (citations and quotation marks omitted). Thus, to
determine whether a right is clearly established, courts must
determine “whether (1) it was defined with reasonable clarity,
(2) the Supreme Court or the Second Circuit has confirmed
the existence of the right, and (3) a reasonable defendant
would have understood that his conduct was unlawful.”
Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011) (citation
omitted).
*19 Because the Court has already denied summary
judgment on the merits of Plaintiff's fair trial, malicious
prosecution, and conspiracy claims, the Court finds that
granting summary judgment to Defendants on these claims on
qualified immunity grounds would be similarly inappropriate.
See Deskovic, 894 F. Supp. 2d at 455, 461–62, 467 (denying
qualified immunity to defendants where the court had
already found a genuine dispute of material fact as to the
plaintiff's fabrication of evidence, malicious prosecution,
and conspiracy claims); see also Dufort, 874 F.3d at
354 (concluding that “it would be inappropriate to grant
qualified immunity to the[ ] [d]efendants at the summary
judgment stage” where the plaintiff “established a dispute
of material fact as to whether the [d]efendants intentionally
withheld or manipulated key evidence during his arrest and
prosecution.”); Torres, 2022 WL 955152, at *9 n.6 (“[The]
[d]efendants’ argument that they are entitled to qualified
immunity cannot save them as summary judgment is only
appropriate if ‘there is no dispute as to the pertinent events
and the knowledge of the officers.’ ... Here, there are
factual disputes as to the knowledge [the defendants] and
the pertinent events.” (quoting Weyant v. Okst, 101 F.3d 845,
852 (2d Cir. 1996))); Mingo v. Augustyn, No. 19-CV-211,
2022 WL 224645, at *8 (W.D.N.Y. Jan. 26, 2022) (“Because
th[e] [c]ourt agrees that [the plaintiff] has identified genuine
issues of fact about whether the charges against [the plaintiff]
were supported by probable cause, th[e] [c]ourt concludes
that [the defendant is] not entitled to qualified immunity for
[the plaintiff's] malicious prosecution claim at this stage.”);
Buari, 530 F. Supp. 3d at 396 (“The right not to be arrested or
prosecuted without probable cause has, of course, long been
a clearly established constitutional right.”) (quoting Golino v.
City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991))).
Accordingly, the declines to grant qualified immunity to
Defendants at the summary judgment stage.
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III. Conclusion
For the foregoing reasons, Defendants’ Motions for Summary
Judgment are denied in large part, except that Plaintiff's
false arrest claim is dismissed as untimely and abandoned,
Plaintiff's Brady claim is dismissed as duplicative, and all
claims against Defendant Casey are dismissed. The Clerk of
the Court is respectfully directed to terminate the pending
Motions, (Dkt. Nos. 153, 156, 159). The Court will hold a
status conference on October 27, 2022, at 12:00 p.m.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 4468066
Footnotes
1 In an Opinion and Order dated March 30, 2020, the Court dismissed Defendants Charbonneau, Behan,
Dearman, and Fischer. (See Op. & Order (“MTD Op.”) 2 (Dkt. No. 97).)
2 The Carmel Defendants’ Notice of Motion states that their Motion for Summary Judgment was brought by
Carmel, Fischer, Dearman, and Nagle. (See Not. of Mot. (Dkt. No. 159).) However, because Fischer and
Dearman were dismissed as Defendants by this Court's Opinion & Order dated March 30, 2020, (see MTD Op.
2), the Court will consider the Carmel Defendants’ Motion as being brought solely by Carmel and Nagle. The
Court will similarly decline to address any arguments in the Carmel Defendants’ papers regarding whether
Fischer and Dearman are entitled to summary judgment, given that they are already dismissed from the
Action.
3 Plaintiff alleges that Smalley's was “housed in a 155-year-old building with an outdated and deteriorating
electrical system.” (Pl.’s Counter 56.1 – Putnam Defs. ¶ 267.) Plaintiff further alleges the following facts:
“prior owners of the Inn had stuffed old newspapers into Smalley's walls and ceilings as insulation”; “[a]t the
[ ] time of the fire, the Inn had no smoke alarms or sprinklers, ... and permitted patrons to smoke”; “[a]bout
three months before the March 2007 fire, in December 2006, fire fighters responded to a fire caused by old
wiring that had melted and was connected to a chandelier”; and “just two months before the March 2007
fire, [Porto] settled a lawsuit he brought against the Smalley family, claiming Smalley's antiquated electrical
system caused him to be electrocuted.” (Id. ¶¶ 268–271.) Defendants dispute these allegations. (See e.g.,
Putnam Defs.’ Counter 56.1 ¶¶ 267–272.)
4 According to the Carmel Defendants, Porto “was friends with [Decedent's] former landlord Lou Albano, who
had made a criminal complaint against Plaintiff that led to his arrest earlier in the year.” (Carmel Defs.’ 56.1 ¶
9.) Further, “[u]pon seeing [Decedent] for the first time that night, Porto told Plaintiff that he had ‘some nerve’
showing his face at Smalley's, called [Decedent] a ‘piece of shit,’ and told him never to show his face at
Smalley's again.” (Id. ¶ 10.) Plaintiff does not dispute these facts. (Pl.’s Counter 56.1 – Carmel Defs. ¶¶ 9–10.)
5 When citing to the Tulipane Expert Report, the Court refers to the ECF-stamped page numbers in the top
right corner of each page.
6 When citing to the Schneiders Expert Report, the Court refers to the ECF-stamped page numbers in the top
right corner of each page.
7 Plaintiff also attached excerpts of the transcript of Detective Nagle's deposition as an exhibit to their
Opposition to the Putnam Defendants’ Motion for Summary Judgment. (See generally Nagle Dep. Tr. 2.)
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Jimenez v. City of New York, Slip Copy (2025)
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KeyCite Blue-Striped Flag
Appeal Filed by Jimenez v. City of New York, 2nd Cir., April 3, 2025
2025 WL 935233
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Ricardo JIMENEZ, Plaintiff,
v.
CITY OF NEW YORK, Wendell Stradford, Karen
Serrano-Paglia, as Administrator of the Estate of
Michael Serrano, Christopher Horn, and Bronx
County District Attorney's Office, Defendants.
23 Civ. 06751 (NRB)
|
Signed March 27, 2025
Attorneys and Law Firms
Joshua Douglas Kelner, Kelner & Kelner, Esqs., New York,
NY, for Plaintiff.
Mark David Zuckerman, New York City Law Department,
New York, NY, for Defendants.
MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, UNITED STATES
DISTRICT JUDGE
*1 Plaintiff Ricardo Jimenez (“Jimenez”) has brought this
lawsuit, see ECF No. 1, asserting violations of 42 U.S.C. §
1983 (“Section 1983” or “§ 1983”) following a successful
habeas petition, see Jimenez v. Graham, No. 11 Civ. 6468
(JPO), 2022 WL 2789217 (S.D.N.Y. July 15, 2022) (“Oetken
Opinion -- Habeas”). Jimenez now seeks monetary damages
against multiple defendants, including the City of New
York, the Bronx County District Attorney's Office (the
“Bronx DA's Office”), and three New York City Police
Department Detectives 1 (“Dets.”) for purported violations of
Section 1983 and state negligence and malicious prosecution
laws. Broadly described, Jimenez asserts that his second
degree murder conviction arising from a 1989 fatal shooting
resulted from police and prosecutorial wrongdoing, as well
as systematic failures within the Bronx DA's Office. See
ECF No. 35 (“Second Amended Complaint” or “SAC”).
Defendants moved to dismiss for failure to state a claim. See
ECF No. 45. For the following reasons, defendants’ motion
is granted, and Jimenez's Second Amended Complaint is
dismissed with prejudice.
A. Factual Background 2
1. The 1989 Murder and Initial Investigation
In July of 2007, a jury convicted Jimenez of murder in
the second degree for shooting and killing Sean Worrell
(“Worrell”) nearly two decades earlier at the Whitestone
Movie Theatre in the Bronx. See SAC ¶¶ 1–2, 26–29, 46.
Shortly after midnight on July 3, 1989, bystanders at the
theatre observed two men, including the victim Worrell, in
a verbal dispute in the concession line. Id. ¶¶ 2, 46. During
the confrontation, “the shooter stated that he was going to get
his gun and thereafter, was seen leaving the movie theater.”
People v. Jimenez, No. 3825/2006, at *3 (Sup. Ct. Mar. 4,
2014) (Sackett, J.) (“Sackett -- § 440.10 Opinion”). 3 At that
point, Worrell left the concession stand and entered a theatre
playing the “Batman” movie. Id. After taking his seat, and as
“the movie was about to begin, the shooter returned, entered
the crowded Batman theater, and approached Mr. Worrell....
Words were exchanged between the parties, weapons were
drawn and shots were fired.” Id. Patrons scattered at the sound
of the gunshots, and Worrell lay dead in the aisle from two
gunshot wounds. Id.
*2 The NYPD began investigating, and the case was
assigned to Dets. Serrano and Horn from the Bronx Detective
Squad. SAC ¶¶ 47–49. Dets. Serrano and Horn took several
witness statements. Id. ¶¶ 51–53. One witness reported to
Det. Serrano that “[t]wo males, Black, were arguing about
who was in line first [at the concession counter]. One guy
said ‘I'll come back and shoot your ass.’ ... [T]hey had words
in Rastafarian.” See SAC, Ex. A (“DD-5”) at RJ-000907.
Another witness said she “overheard a verbal altercation
between two males whom she described as sporting flat-top
haircuts, and wearing a lot of gold.” Id. at RJ-000093. This
witness described the shooter as a “tall and thin” man “in his
early twenties” who spoke with a “Jamaican accent[ ].” Id.
Yet another witness reported that a “thin” young man, “about
6’ tall, short cropped hair (black) with a thin blond streak of
hair running along the side of his head” who wore “numerous
rings on his fingers, [and] a large medallion ... from a chain
around his neck,” argued with the victim in “the concession
stand [while] waiting to be served.” Id. at R-000094.
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Esco Blaylock (“Blaylock”), another eyewitness, worked at
the movie theatre at the time of the shooting. SAC ¶ 52.
During an interview with Dets. Serrano and Horn, Blaylock
described an argument that had broken out at the concession
stand between Worrell and another man, who Blaylock
identified as a black man named “Leon.” See SAC, Ex. B
(“DD-5”) at R-000085. Blaylock stated that he had known
“Leon” for “about 2 years” after having “met ... through
a friend.” Id. Blaylock noted that he knew “Leon” to be
a “violent guy and heavily involved in selling drugs.” Id.
Blaylock also described “Leon's” physical appearance to
the detectives, relaying that he was “about 5’10”, 175 lbs.,
[with a] high-top haircut with shaved sides, and two blond
streaks running along the side of his head,” who “look[ed]
Puerto Rican, and c[ould] mimic [sic] a Jamaican accent.”
Id. Blacklock further told the detectives that “Leon” had a
girlfriend, who Dets. Serrano and Horn later identified as
Sharon Ramroop. 4 Id. at R-000917.
The detectives interviewed Sharon Ramroop in the presence
of her mother. Id. at R-000087. Ramroop said she knew
“Leon” and similarly described him as a man of “Jamaican
and Indian Extraction” and a “flashy dresser” with “a flat top
haircut.” Id.
Dets. Serrano and Horn conducted follow-up interviews with
Blaylock and Ramroop in the police precinct about one week
after the shooting. See SAC, Ex. D at RJ–002100. As the
detectives’ DD-5 report describes:
Both, Esco [Blaylock] and Sharon
[Ramroop] viewed photos. Sharon
Ramroop identified a photo as that of
Mannel Jimenez, indicating that his
brother as Ricky, the person being
sought. A search of the files produced
a photograph of Ricardo Jimenez. Mr.
Esco Blaylock identified the photo of
Ricardo Jimenez as the shooter in this
case, and the person known to him as
‘Leon.’ Sharon Ramroop stated that
she knew this individual as ‘Ricky.’
*3 Id. 5
After linking the descriptions of the shooter to Ricardo
Jimenez, the detectives arrested him in connection with
Worrell's murder. SAC ¶ 62. However, Jimenez's detention
was only temporary because Blaylock failed to appear for a
follow-up lineup after he was “instructed by his employer at
the Whitestone Theatre not to speak with the police about
the Batman shooting and because his mother became scared
and told Mr. Blaylock that she did not want him cooperating
with the police.” Sackett -- § 440.10 Opinion at *8 n.13. At
that point, as there was insufficient evidence to hold Jimenez
or pursue an indictment against him, Dets. Serrano and Horn
released him. SAC ¶ 62. The case then went cold and would
remain so for the next eleven years. Id. ¶¶ 63–64.
2. The Cold Case is Revived
In or around the year 2000, Det. Wendell Stradford from
the NYPD Cold Case Squad reopened the Worrell murder
investigation. Id. ¶¶ 4, 64. Det. Stradford studied the case
intermittently over the next six years. Id. ¶¶ 64–78. He
re-interviewed Blaylock, the eyewitness and movie theatre
employee, and showed him “multiple photo arrays” of
possible suspects. Id. ¶¶ 65–67. From the arrays, Blaylock
identified Jimenez as the shooter, signed his name to the
back of Jimenez's photo, and agreed to testify against him
at trial. Id.; see also Sackett -- § 440.10 Opinion at *10.
Det. Stradford also interviewed Andrew O'Brien (“O'Brien”),
a former associate of Worrell's, who was serving a 30-year
sentence for an unrelated crime. SAC ¶¶ 68–69. O'Brien also
implicated Jimenez as Worrell's murderer. Id. ¶ 74.
Following Det. Stradford's investigation, Bronx County
Assistant District Attorney Lisa Mattaway (“ADA
Mattaway”) was assigned to the Worrell case. Id. ¶ 78. ADA
Mattaway met with O'Brien, who agreed to testify against
Jimenez. Id. ¶¶ 79, 86. ADA Mattaway “gave no ... promise[s]
to Mr. O'Brien other than the promise to write a letter on
his behalf” in connection with his federal case. See People
v. Jimenez, No. 3825/2006, at *3 (Sup. Ct. June 29, 2018)
(Torres, J.) (“Torres, J. -- Remand”). Ahead of O'Brien’s
testimony, ADA Mattaway contacted Assistant U.S. Attorney
(“AUSA”) David Novak on June 4, 2007, who had prosecuted
O'Brien in the criminal case in Virginia for which he was
serving a thirty-year sentence, and she requested copies
of “any cooperation agreements [O'Brien] has made in
exchange for his testimony with the Federal government and
any information regarding favorable treatment he may have
received in exchange for his cooperation.” SAC ¶ 82.
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*4 In response, AUSA Novak sent ADA Mattaway “three
to four boxes of materials” related to O'Brien. Sackett -- §
440.10 Opinion at *20. Included therein was an FBI-302
report dated February 14, 1997, which contained notes
from interviews with O'Brien conducted by FBI agents
in connection with his guilty plea in the Eastern District
of Virginia to a murder-related RICO charge. See SAC,
Ex. F (“O'Brien Proffer”). As recited in the FBI-302
Report, O'Brien was “interviewed regarding homicides which
occurred in New York City” about which he “said he had
hearsay knowledge.” Id. at RJ–001956. Separately, O'Brien
was shown a collection of photographs. Id. at RJ–001974. In
one of those photographs, O'Brien identified Sean Worrell.
Id. at RJ–001976. The 302 report states: “Sean Morrell, also
known as ‘Shaka’ – O'Brien said this individual was killed in
the Bronx, White Stone [sic] Movie Theatre, and his mother
lived on 45th Street in Brooklyn.” Id. In addition to the FBI
report, AUSA Novak also provided to ADA Mattaway: (1)
letters O'Brien had sent to the judge in his case seeking
a sentencing reduction, describing himself as “desperate”;
(2) the transcript of O'Brien’s prior trial testimony against a
gang leader that led to a reduction in his sentence; and (3)
an AUSA's prior, successful motion to secure a sentencing
reduction for O'Brien. SAC ¶ 83. AUSA Novak noted that the
materials were provided for ADA Mattaway's “determination
as to whether they are discoverable in [the] prosecution of
Ricardo Jimenez.” See SAC, Ex. G (“Novak Email”) at RJ–
001915.
Jimenez was arrested as a suspect in Worrell's murder on
August 31, 2006. SAC ¶ 87. A few days later, on September
2, 2006, the grand jury, after hearing evidence presented
by ADA Mattaway, voted to indict Jimenez for Worrell's
murder. See Sackett -- § 440.10 Opinion at *3. Pending trial,
Jimenez was detained at Rikers Island, SAC ¶ 98, where,
according to his cellmate, Kevin Morrissey (“Morrissey”),
he confessed to murdering Worrell in the 1989 shooting, id.
¶ 99. However, Jimenez disputes this claim, see id. ¶ 101,
and suggests that Morrisey was a schizophrenic and a “serial
jailhouse informant” with “a litany of pending charges against
him,” id. ¶¶ 99–101.
Jimenez's case proceeded to trial, which began on June 20,
2007. See Sackett -- § 440.10 Opinion at *4. Over the
course of three weeks, “[t]he jury heard testimony from
approximately twelve prosecution witnesses.” Id. However,
Jimenez “did not testify and did not present any witnesses.”
Id. On July 13, 2007, after five days of deliberations, the jury
found Jimenez guilty of second degree murder. Id.; see also
SAC ¶¶ 7, 28. He was later sentenced to twenty-two years to
life. SAC ¶ 29.
Jimenez served roughly fifteen years of that sentence before
his conviction was vacated pursuant to Judge Oetken's
habeas opinion, which found Brady violations by the
prosecution. See Oetken Opinion -- Habeas at *3–13; see
also infra at 23–25. Thereafter, the Bronx DA's Office opted
not to retry him. SAC ¶¶ 39–40. Judge Oetken's habeas
decision followed Jimenez's numerous, but unsuccessful,
post-conviction challenges in state court, which are discussed
in the following section.
B. Post-Conviction Challenges
1. Motion to Set Aside the Guilty Verdict
Jimenez's first post-conviction effort was a 2007 motion to
the trial court pursuant to New York Criminal Procedure Law
(“NYCPL”) § 330.30(2) to set aside the guilty verdict on the
grounds of improper juror conduct. People v. Jimenez, 847
N.Y.S.2d 904 (Sup. Ct. 2007) (Torres, J.). The motion was
based on a juror's (Juror Ten) post-trial statement to defense
counsel that some jurors had been disrespectful, intoxicated,
and overbearing during deliberations. Id. The trial court
rejected these allegations, noting that during trial, it conducted
two in camera inquiries with Juror Ten and others, and that
Juror Ten had repeatedly assured the court that she could
“definitely” continue deliberating and reach a verdict. Id. The
court also noted that Juror Ten confirmed her verdict when
polled and did not speak out when the judge invited the jury
to do so in an informal post-verdict meeting in the jury room.
Id. Relying on the well-established principle that “a verdict
may not be impeached by probes into the jury's deliberative
process” absent “a showing of improper influence,” the trial
court found no “legal basis upon which to grant this motion”
or a need to “conduct a hearing.” Id.
2. Direct Appeal
In 2010, Jimenez filed a direct appeal to the Appellate
Division, see SAC ¶ 30, arguing that: (1) the verdict was
against the weight of the evidence; (2) the trial court erred in
refusing to charge a justification defense; (3) the prosecution
engaged in a pattern of misconduct; (4) his speedy trial rights
were violated; and (5) the sentence was excessive, see People
v. Jiminez, 71 A.D.3d 483, 483–84, 896 N.Y.S.2d 69, 69–
71 (1st Dept. 2010). The four-judge panel rejected all of
Jimenez's arguments and unanimously affirmed the verdict
and sentence. Specifically, the court concluded:
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*5 The verdict was not against
the weight of the evidence. There
is no basis for disturbing the jury's
determinations concerning credibility.
Two witnesses (one of whom was
acquainted with defendant) having
no connection with each other
identified the same person and
gave essentially similar accounts of
the incident. Moreover, defendant's
confession to an informant contained
significant details that confirmed
the informant's credibility. The jury
could have reasonably concluded that
these factors outweighed the alleged
deficiencies in the People's case.
Id. at 71 A.D.3d at 483, 896 N.Y.S.2d at 70 (internal citations
omitted). 6
Leave to appeal the decision was denied by a judge of the New
York Court of Appeals. People v. Jiminez, 15 N.Y.3d 752, 933
N.E.2d 223 (2010); see also SAC ¶ 30.
3. Motion Under N.Y.C.P.L. § 440.10 and Ensuing
Appeal
i. Jimenez's § 440.10 Motion
The following year, on September 23, 2011, Jimenez,
represented by the Office of the Appellate Defender, filed a
motion pursuant to NYCPL § 440.10 (1)(g) and (h) in the
Supreme Court, Bronx County. See SAC ¶ 31. Jimenez raised
several claims: (1) actual innocence; (2) insufficiency of trial
evidence; (3) Brady violations; (4) pre-indictment delay; and
(5) ineffective assistance by trial counsel.
In a detailed forty-four-page Decision and Order, 7 Supreme
Court Justice Robert A. Sackett, clearly having reviewed the
trial transcript and prior proceedings, and having considered
over 1,600 pages of submissions, rejected all of Jimenez's
claims. See Sackett -- § 440.10 Opinion at *1 n.2, *43–44.
Briefly stated, the court denied the actual innocence and
insufficiency of the evidence claims on the merits. Id. at
*12–15. 8 As for pre-indictment delay, the court noted that
there is no statute of limitations for murder. Id. at *37–38.
With respect to ineffective assistance of counsel, the court
devoted eight pages of the opinion to a point-by-point review
of Jimenez's arguments before ultimately rejecting the claim.
Id. at *35–43.
As Justice Sackett addressed the same Brady issues that
underlie Jimenez's instant § 1983 complaint, we will describe
Justice Sackett's rulings in some detail. After a lengthy
recitation of the requirements of Brady, see id. at *15–
17, Justice Sackett addressed the defendant's specific Brady
arguments, see id. at *17–34.
First, Justice Sackett discussed the failure of ADA Mattaway
to disclose the transcripts of O'Brien’s trial testimony against
members of the Poison Clan gang in federal court in Virginia,
see id. at *19–25, finding that the transcript information
was “collateral to the defendant's case and provided solely
additional impeachment material of the testifying witness.”
Id. at *22.
*6 Next, Justice Sackett held that additional disclosure of the
criminal conviction records of O'Brien and Morrissey would
only have provided “additional impeachment fodder” but
would not “have produced a different result in the verdict,”
id. at *12, or, stated in Brady parlance, additional disclosures
of the witness's criminal records were not “material to the
question of defendant's guilt,” id. at *17-18. Justice Sackett
noted that O'Brien’s undisclosed crimes, namely, a 1992
conviction for Criminal Possession of a Weapon, for which
he received a sentence of three-and-a-half to seven years, and
a 1989 conviction for brandishing a weapon, were similar
to the disclosed crimes of violence and murder. Id. at *23.
Justice Sackett also found that these non-disclosures were
“inadvertent” and would not have “altered the outcome of the
defendant's trial nor den[ied] him due process,” as they “can
hardly be considered [ ] highly material” to Jimenez's guilt.
Id. at *24. Similarly, with respect to the potential Brady issues
around Morrissey's undisclosed criminal history, Justice
Sackett observed that the criminal history that was disclosed
for Morrissey consisted of crimes of dishonesty, deceit
and fraud, which were similar in nature to the undisclosed
crimes. Id. at *26–28. Consequently, Justice Sackett found
that “there was no ‘reasonable probability’ that disclosure
of the additional criminal records of Andrew O'Brien and
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Kevin Morrissey would have changed the outcome of the
defendant's trial.” Id. at *27-28.
As for the argument that the prosecution failed to disclose the
cooperation benefits that O'Brien and Morrissey would have
received, Justice Sackett found:
As the prosecutor clearly met her
Brady obligation with regard to
disclosure of the complete agreements
made between her office and O'Brien
and Morrissey for their testimony
against the defendant, this Court finds
no Brady violation under this issue.
Id. at *34.
In addition to Justice Sackett's rejection of all the Brady
arguments, it is also significant that he found that the
disclosure failures: “do[ ] not appear to be willful,” id. at *18,
and were “inadvertent” rather than “intentional,” id. at *24.
ii. Jimenez's Appeal of the § 440.10 Motion
Jimenez appealed Justice Sackett's decision, and on July 21,
2016, a four-judge appellate panel (one judge concurring in
result only) substantially affirmed Justice Sackett's opinion,
remanding a single one potential Brady issue for a hearing.
People v. Jimenez, 142 A.D.3d 149, 164, 37 N.Y.S.3d
225, 236 (1st Dept. 2016) (“Appeal of Sackett's § 440.10
Opinion”).
The Appellate Division first reviewed Jimenez's actual
innocence argument, which was based on “the statements of
[Maxine Littlejohn and Dean Beckford] who claimed to have
been in the movie theater on the night Worrell was killed but
who did not testify,” and who later told “an investigator hired
by appellate counsel that the person ... whose photograph they
were shown [Jimenez], was not th[e] man” who shot Worrell.
Id. at 142 A.D.3d at 153, 37 N.Y.S.3d at 229. In response,
the First Department concluded: “Quite simply, this evidence
[is] insufficient to warrant a hearing on actual innocence,”
because the purported exculpating statement from Littlejohn
was “patent hearsay,” and the “Beckford statement [was]
unsworn.” Id. at 142 A.D.3d at 156, 37 N.Y.S.3d at 231.
The court further noted that even if Littlejohn and Beckford's
statements were admissible, there was nothing “inherently
reliable about either,” as they “were given many years after
the shooting, contain[ed] a lack of detail tending to explain
why their recollections can be considered accurate, and were
made at the specific behest of an agent for defendant.” Id.
at 142 A.D.3d at 157, 37 N.Y.S.3d at 231. The Appellate
Division's opinion also referenced Justice Sackett's finding
that the proffered witness statements “did not ‘deviate from
the description provided by all of the eyewitnesses to the
argument and the shooting: that the shooter spoke with a
Jamaican accent and had brown skin.’ ” Id. at 142 A.D.3d
at 154, 37 N.Y.S.3d at 229 (quoting Sackett -- § 440.10 at
*14). Thus, the court concluded that these statements were
insufficient to warrant a hearing and failed to “negate the
competing evidence that a jury has already heard, weighed,
and relied on to convict defendant.” Appeal of Sackett's §
440.10 Opinion at 142 A.D.3d at 157, 37 N.Y.S.3d at 231. 9
*7 Apart from Jimenez's reliance on these two statements,
he also questioned the credibility of some trial witnesses. The
court found this argument insufficient to “warrant a hearing
on actual innocence,” id. at 142 A.D.3d at 158, 37 N.Y.S.3d
at 232, emphasizing:
Many criminal trials feature witnesses
whose credibility is challenged and
procedures such as identification that
are less than perfect. However, we
give great deference to the jury's
ability to resolve these issues. Were
we to recognize a stand-alone actual
innocence claim, a hearing would be
warranted only where the proffered
evidence, accepted as true, raised
serious doubt about the defendant's
guilt.
Id. The court found no basis for such “serious doubt.”
The court then turned to the Brady issues. With respect to
the non-disclosures related to Morrissey's criminal record, the
court found that the disclosed information and Morrissey's
own admissions sufficiently showed that he was a “con
artist” and that his “untrustworthiness” was “evident and
undisputed.” Id. at 142 A.D.3d at 159, 37 N.Y.S.3d at
233. Thus, the additional information was “cumulative”
and would not “have changed the outcome.” Id. As for
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information about Morrissey's mental status, the court
found that defense counsel had “independent access to the
impeachment material.” Id. at 142 A.D.3d at 160, 37 N.Y.S.3d
at 233.
Focusing on O'Brien, the court found that disclosure of the
transcripts from O'Brien’s testimony during his federal trial in
Virginia and of his additional convictions “would merely have
been cumulative, and as such, cannot be considered material
for purposes of finding a Brady violation.” Id. at 142 A.D.3d
at 161, 37 N.Y.S.3d at 234. Finally, we quote fully from the
Appellate Division's decision with respect to an undisclosed
report from O'Brien’s proffer sessions with the FBI, which
was central to Judge Oetken's Brady holding:
Defendant also complains that he was not provided with an
FBI report, prepared after O'Brien was interviewed by New
York City and federal law enforcement personnel about
the many crimes he was involved in and many of which
he had knowledge. The report contains a highly detailed
recounting of the facts surrounding many of those crimes.
However, it has a mere three lines about Worrell's murder,
stating only: ‘O'Brien said this individual was killed in
the Bronx, White Stone Movie Theatre, and his mother
lived on 45th Street in Brooklyn.’ Defendant contends
that the report could reflect the fact that O'Brien was not
forthcoming about the murder of Worrell because he knew
far less about it than he let on at defendant's trial.
We agree with the motion court that none of these materials,
had they been available to the defense before the trial,
had a reasonable possibility of changing the outcome. The
FBI report that defendant asserts contained a suspiciously
cursory description of Worrell's murder is not material.
The report was primarily about O'Brien’s involvement in
gang activity and the people who traveled in the same orbit
with him. At one point in the interview he was asked to
identify photographs of approximately 40 of those people.
One of them was Worrell, and O'Brien gave the same short
description of him as he gave for each of the other people.
There is no indication that it would have been appropriate,
in the context of the interview, for O'Brien to describe
Worrell's murder in detail or to offer that he had witnessed
it.
*8 Defense counsel's cross-examination of O'Brien
amply elicited the unsavory elements of his character,
manifested by his racketeering conviction, which, by
his own admission at trial, involved a conspiracy to
distribute narcotics, a conspiracy perpetuated by murder
where necessary. Further, the cross-examination revealed
O'Brien’s convictions, shortly before Worrell's murder, for
weapons and drug possession. Any further impeachment
material would merely have been cumulative, and as such,
cannot be considered material for purposes of finding a
Brady violation.
Id. at 142 A.D.3d at 160–61, 37 N.Y.S.3d at 233–34.
Furthermore, the court addressed Jimenez's contention that
Justice Sackett had “failed to analyze his Brady claims on a
collective basis.” Id. at 142 A.D.3d at 161, 37 N.Y.S.3d at
234. While agreeing that was the appropriate standard, the
Appellate Division concluded: “[W]e do not lack confidence
that the trial's outcome would have been the same had the
material, viewed collectively, been produced.” 10 Id.
There was, however, one Brady issue that the court concluded
required further exploration, which was whether the failure
of the prosecution to disclose materials relating to O'Brien,
namely, (i) his plea agreement with federal prosecutors
obligating him to cooperate; (ii) letters he sent to a federal
judge seeking a sentence reduction; and (iii) an email from
AUSA Novak to ADA Mattaway, was sufficient to require
a hearing to determine whether ADA Mattaway knew that
O'Brien was expecting a sentence reduction for his testimony
in this case. Id. at 142 A.D.3d at 161–62, 37 N.Y.S.3d at 234–
35. Determining that the existence of an undisclosed quid
pro quo could have had a material impact on the jury, the
Appellate Division remanded this singular issue for a hearing.
Id. at 142 A.D.3d at 161–62, 164, 37 N.Y.S.3d at 234–36.
iii. Remanded Brady Issue
On remand, the trial judge held a hearing at which he heard
testimony from ADA Mattaway, Det. Stradford, and O'Brien,
and received the testimony of former AUSA David Novak by
stipulation. In a Decision and Order dated June 29, 2018, 11
Justice Torres found that the three live witnesses testified
credibly and that their testimony “clearly establishes that there
was no quid pro quo agreement.” Torres, J. -- Remand at *3–
4. Moreover, Justice Torres continued:
I find no evidence of any agreement
of any kind other than what the
parties disclosed at trial and testified
to before this Court at the hearing.
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There is no evidence before this Court
to support the defendant's contention
that there was any other agreement
made between ADA Mattaway and
Andrew O'Brien. I also find no
evidence to support that there was any
relationship between Det. Stradford
and Mr. O'Brien or Det. Stradford and
ADA Mattaway concerning any other
agreement. Therefore, the Court finds
there was no quid pro quo agreement
between the Bronx prosecutor's office
and Mr. O'Brien and/or the federal
prosecutor. The Court further finds
no Brady violation concerning the
understanding between the Bronx
prosecutor and Mr. O'Brien and/or the
federal prosecutor.
Id. at *4.
Following Justice Torres's decision, Jimenez filed a motion
for re-argument, which was denied. 12 People v. Jimenez,
No. 3825/2006, at *4 (Sup. Ct. August 26, 2019) (Torres,
J.). In denying re-argument, it is notable that Justice
Torres reiterated his finding that AUSA Mattaway “testified
credibly” and that throughout the trial, she had no knowledge
of any agreement or arrangement between O'Brien and AUSA
Novak. Id. at *3.
*9 Leave to appeal the denial of re-argument to the
Appellate Division was denied, see People v. Jimenez, 2018
N.Y. Slip. Op. 87587(U) (1st Dep't 2018), as was leave to
appeal to the New York Court of Appeals, see People v.
Jimenez, 2019 N.Y. Slip Op. 66214(U) (1st Dep't 2019).
4. Jimenez's Habeas Corpus Petition
On September 9, 2011, Jimenez filed a petition for a writ of
habeas corpus in federal court, which was stayed by Judge
Oetken of this Court pending the outcome of Jimenez's state
post-conviction proceedings. Jimenez v. Graham, No. 11 Civ.
6468 (JPO), 2011 WL 6287999, at *6 (S.D.N.Y. Dec. 14,
2011). Following the lifting of the stay, Judge Oetken granted
Jimenez's petition on Brady grounds without addressing
the other issues Jimenez raised about his prosecution and
conviction. See Oetken Opinion -- Habeas at *13. Judge
Oetken's opinion is lengthy, but his Brady findings are limited
to the non-disclosures related to O'Brien.
To begin, Judge Oetken held that he could not “conclude that
it was objectively unreasonable for the hearing court [Justice
Torres on remand] to determine that there was no quid pro
quo agreement in place.” Id. at *6. However, Judge Oetken
rejected the hearing court's second holding that there was “
‘no Brady violation concerning the understanding between
the Bronx prosecutor and Mr. O'Brien,’ ” finding that it “was
an unreasonable application of Brady.” Id. (internal citation
omitted). Specifically, Judge Oetken found that the disclosure
that O'Brien was “currently jailed in Federal Custody for
Murder (unrelated) and serving 30 years,” and that he had
“asked for a letter to be prepared by the undersigned [ADA
Mattaway] that he can put in his file stating that he testified
for the Bronx District Attorney's Office,” was insufficient
for Brady purposes. Id. at *7. This finding was based on the
“prosecution's failure to disclose everything it knew about
O'Brien’s potential use of the letter, including the fact that
he had cooperated in a federal case, had received a Rule 35
order reducing his sentence, had continued to seek a sentence
reduction, and that the letter would be sent to the AUSA who
had previously filed a Rule 35 motion on his behalf.” Id.
Judge Oetken further determined that the failure to produce
to the defense a 1997 FBI report that recorded a lengthy
interview with O'Brien constituted a second Brady violation.
See id. at *9–11. This finding specifically rejected the
unanimous holding of the Appellate Division, quoted supra at
18–21, which found the non-disclosure “not material” in the
context of Brady.
In light of these Brady findings, Judge Oetken ordered
Jimenez to be released unless he was provided a new trial
within 120 days. Id. at *13; see also SAC ¶ 38. On April
10, 2023, the Bronx DA's Office opted to dismiss the
indictment and not retry Jimenez, who had already served
about fifteen years of his twenty-two years to life sentence
for the Worrell murder, which, at that point, had occurred
nearly thirty-five years earlier. SAC ¶¶ 39–40. In the wake
of this successful habeas petition, Jimenez filed the Section
1983 action currently before us. 13
LEGAL STANDARD
*10 On a motion to dismiss under Rule 12(b)(6), the
Court must accept as true the complaint's factual allegations,
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as well as those facts incorporated by reference into the
complaint, and draw all reasonable inferences in the plaintiff's
favor. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229,
237 (2d Cir. 2007); see also Johnson v. JPMorgan Chase
Bank, N.A., 488 F. Supp. 3d 144, 161 n.29 (S.D.N.Y. 2020)
(“In deciding a motion to dismiss, the Court can consider
documents incorporated by reference in the complaint.”).
Those “[f]actual allegations must be enough to raise a right
of relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
“Although for the purposes of this motion to dismiss we must
take all the factual allegations in the complaint as true, we
are not bound to accept as true a legal conclusion couched
as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286
(1986). Ultimately, unless a plaintiff alleges “enough facts
to state a claim to relief that is plausible on its face,” the
“complaint must be dismissed.” Twombly, 550 U.S. at 570.
DISCUSSION
The ensuing discussion addresses, on a defendant-by-
defendant basis, Jimenez's claims of malicious prosecution,
denial of fair trial rights, and failure to intervene, followed by
the issues of municipal liability under § 1983 and Monell v.
Dep't of Social Services, 436 U.S. 658 (1978), and common
law negligence.
A. Detectives Serrano and Horn
Jimenez brings three claims against Dets. Serrano and Horn,
the detectives initially assigned to the Worrell murder but
whose investigation concluded without any charges being
brought. Jimenez's claims against these detectives include
malicious prosecution, see SAC ¶¶ 123–34, denial of fair trial
rights, see id. ¶¶ 135–46, and a failure to intervene, see id.
¶¶ 147–56. As explained below, these claims fail for two
key reasons: (1) first, Jimenez is unable to link the issues he
perceives in Dets. Serrano and Horn's 1989 investigation to
the legal proceeding brought against him nearly two decades
later; and (2) second, there are no particularized facts to
support Jimenez's claims, which, as pled, are, in essence, mere
recitations of the elements of the causes of action. We address
each claim in turn.
1. Malicious Prosecution
To state a claim for malicious prosecution under § 1983,
a plaintiff must “show a violation of his rights under the
Fourth Amendment ... and [then] 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). 14
In New York, these elements include: “1) the initiation or
continuation of a criminal proceeding against plaintiff; 2)
termination of the proceeding in plaintiff's favor; 3) the lack of
probable cause for commencing the proceeding; and 4) actual
malice as a motivation for defendant's actions.” Id. To succeed
on such a claim, a plaintiff must clear “a high bar,” Frederick
v. New York City, No. 11 Civ. 469 (JPO), 2012 WL 4947806,
at *9 (S.D.N.Y. Oct. 11, 2012), when, as here, he bears the
“burden of rebutting the presumption of probable cause” that
attaches upon a grand jury indictment, Rothstein v. Carriere,
373 F.3d 275, 284 (2d Cir. 2004). To satisfy this burden, a
plaintiff must present evidence of grand jury misconduct or
“fraud, perjury, the suppression of evidence, or other police
conduct undertaken in bad faith,” id., that erodes the “premise
that the Grand Jury acts judicially,” Colon v. City of New
York, 468 N.Y.S.2d 453, 455, 455 N.E.2d 1248, 1250 (1983).
Even if a plaintiff meets this burden, he must still establish
that the prosecution was brought with malicious intent, which
equates to “ ‘a wrong or improper motive, something other
than a desire to see the ends of justice served.’ ” Watson
v. Cieslak, 09 Civ. 2073 (DAB)(JCF), 2011 WL 446276, *8
(S.D.N.Y. Jan. 5, 2011) (quoting Nardelli v. Stamberg, 44
N.Y.2d 500, 503, 406 N.Y.S.2d 443, 445 (1978)).
*11 Jimenez's claim fails at the outset, as the actions of Dets.
Serrano and Horn -- whose investigation stopped seventeen
years before Jimenez was indicted for Worrell's murder --
indisputably did not lead to “the initiation or continuation of a
criminal proceeding” against Jimenez. Manganiello, 612 F.3d
at 161. Indeed, the opposite is the case: in 1989, after Blaylock
failed to appear for a lineup to identify Jimenez as the shooter
-- due to fear over losing his job and endangering his family,
see supra at 6 -- Jimenez was released from police detention,
see SAC ¶ 62. No criminal process ensued, and the case went
cold for over a decade. Id. ¶¶ 63–64.
By the time the case was revived around 2000, Det. Stradford,
not Dets. Horn or Serrano, who had “retired by the time of
trial,” see Appeal of Sackett's § 440.10 Opinion at A.D.3d at
152, 37 N.Y.S.3d at 228, had “assumed responsibility for the
Worrell case,” SAC ¶ 64. And, based on the record, it does
not appear that either Det. Serrano 15 or Horn was involved in
this second investigation. Thus, the actions of Dets. Serrano
and Horn in 1989 lack the necessary throughline to Jimenez's
2006 prosecution, and as such, neither detective can be liable
for malicious prosecution.
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While the absence of such a causal link is sufficient to
dismiss the malicious prosecution claim against Dets. Serrano
and Horn, Jimenez's malicious prosecution claim fails for
two other independent reasons. First, as will be discussed
further, Jimenez has not rebutted -- as it is his burden
to do -- the strong presumption of probable cause which
follows from a grand jury indictment. Rothstein, 373 F.3d
at 284. Second, while the complaint's references to Dets.
Serrano and Horn's alleged fabrication, actual malice, etc.
are dramatic, SAC ¶¶ 123–34, these serious allegations are
advanced without support in the record. The deference to a
complaint on a motion to dismiss only applies to supportable
factual allegations, not bald legal assertions. Iqbal, 556 U.S.
at 678.
One example of the lack of support for Jimenez's bald
allegations is the assertion that “[a]fter a highly suggestive
‘single photo’ identification procedure, Blaylock purportedly
identified Jimenez as the shooter.” SAC ¶ 57. While a
review of the DD-5s calls into serious question whether
Blaylock was shown only a single photo for identification
purposes, such a claim, even if true, would fail as a
matter of law because a single photo identification is
not unlawful when there is an independent basis for the
identification. See, e.g., Layton v. Phillips, 340 F. App'x 687,
689 (2d Cir. 2009) (highlighting that single photographic
identification procedures are appropriate so long as they
are not “ ‘impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.’
”) (quoting Simmons v. United States, 390 U.S. 377, 384
(1968)). That independent basis may derive from the witness's
past relationship with the defendant or from the witness's
observation of the crime. 16 See, e.g., Manson v. Brathwaite,
432 U.S. 98, 116 (1977) (finding that a “single-photograph
display[ ],” when administered to an eyewitness without
“coercive pressure,” was permissible, as it did not create “a
very substantial likelihood of irreparable misidentification”)
(internal marks and citation omitted); United States v.
Jimenez, No. 20 Crim. 122 (LTS), 2020 WL 7231062, at
*2 (S.D.N.Y. Dec. 8, 2020) (“[C]ourts in this circuit have
held that identification procedures consisting of the display
of a single photograph to a witness who states that the
witness already knows the perpetrator, in order to confirm
the perpetrator's identity, are not unduly suggestive.”); United
States v. Hardy, No. 10 Cr. 1123 (JSR), 2011 WL 7782582
(S.D.N.Y. Jan. 25, 2011) (finding that the Government's
display of “a confirmatory photograph of a person the
witness has indicated that he already knows” was “perfectly
acceptable” and not “unduly suggestive”). Here, Blaylock
stated from the outset that he had known Jimenez for “about 2
years,” see DD-5 at R-000085, and that he directly witnessed
the crime, SAC ¶ 52. 17 Either of these facts would be
sufficient to rebut any claim of an impermissibly suggestive,
single-photo identification of Jimenez, and by extension, any
claim of malicious prosecution.
2. Fair Trial Claim
*12 Jimenez also asserts a fair trial claim against
Dets. Serrano and Horn predicated on an unsubstantiated
fabrication of evidence allegation concerning Blaylock's
identification. Id. ¶¶ 135–46. To prevail on such a claim,
a plaintiff must show that “an (1) investigating official (2)
fabricate[d] information (3) of a material nature 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, 279 (2d Cir. 2016). Jimenez's
allegations, no doubt deliberately, leave out the fact that
seventeen years after the initial interviews by Dets. Serrano
and Horn, Blaylock testified under oath before the grand jury
and identified Jimenez as the shooter. See G.J. Min. at 18:5–7,
22:19–21 (“I have seen him around the neighborhood and ...
I didn't know him personally[,] but I knew of him. I knew of
him as Leon.... I recognized his face. I have one [sic] question
about it. I am a good judge, I recognized him instantly. I
said this is the guy.”). Again under oath, Blaylock testified at
trial, where he was also cross-examined by defense counsel
who could utilize the DD-5's to challenge Blaylock's initial
statements to Dets. Serrano and Horn. See Sackett -- § 440.10
Opinion at *41. Significantly, Jimenez does not allege -- nor
could he -- that Blaylock ever recanted his identification of
Jimenez or his sworn testimony before the grand jury or at
trial. 18
As with the malicious prosecution claim, there is no
throughline between Dets. Serrano and Horn's investigative
work and the eventual prosecution of Jimenez seventeen
years later. It is undisputed that Dets. Serrano and Horn's
investigation of Worrell's murder ended (i) without any
charges being brought against Jimenez or anyone else, 19 and
(ii) without any evidence in the record indicating that Dets.
Serrano or Horn had any communication with the Bronx DA's
Office about initiating a prosecution years later. In short, these
basic elements of a fair trial claim have not been met, and the
claim must therefore be dismissed.
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Even assuming, arguendo, that Dets. Serrano and Horn's
investigation had resulted in a criminal proceeding against
Jimenez, his fabrication-based fair trial claim would still
fail. In general, fabrication-based fair trial claims under §
1983 address situations in which “a government official
manufactures false evidence against an accused, and the use
of that fabricated evidence results in the deprivation of the
accused's liberty.” Bailey v. City of New York, 79 F. Supp.
3d 424, 446 (E.D.N.Y. 2015). “[M]anufactured” evidence
is typically planted evidence, forced testimony, or falsified
police reports. See e.g., Ricciuti v. N.Y.C. Transit Auth., 124
F.3d 123, 126 (2d Cir. 1997) (involving allegations that an
officer invented a suspect's written confession); Barnes v. City
of New York, 68 F.4th 123, 129 (2d Cir. 2023) (involving
officers lying to prosecutors in relaying that they witnessed
the defendant sell drugs); Shabazz v. Kailer, 201 F. Supp. 3d
386, 391 (S.D.N.Y. 2016) (involving officers who allegedly
fabricated photographs linking suspect to a handgun).
In this case, Jimenez does not advance any wrongdoing
consistent with the type of facts covered by a fabrication-
based fair trial claim. Rather, Jimenez largely distorts
Dets. Serrano and Horn's standard investigative procedures,
characterizing them as fabrication. Further, it is noteworthy
that Blaylock is not the object or subject of any Brady claim
addressed by either Justice Sackett's opinion on Jimenez's
§ 440.10 petition in state court or Judge Oetken's habeas
opinion in this Court. See supra at 12–16, 23–25. At
bottom, Jimenez offers no proof that evidence against him
was manufactured, nor are there any particularized facts
suggesting that Dets. Serrano or Horn planted, mishandled, or
otherwise invented evidence implicating Jimenez. For these
reasons, Jimenez's fair trial claim must be dismissed.
3. Failure to Intervene
*13 Jimenez's third claim against Dets. Serrano and Horn
is a vague, scattered failure to intervene claim. SAC ¶¶
147–56. On a failure to intervene claim, an “officer can be
held liable under Section 1983 for ‘the preventable harm
caused by the actions of the other officers if that officer
observes or has reason to know that (1) excessive force
is being used, (2) a citizen has been unjustifiably arrested,
or (3) any constitutional violation has been committed by
a law enforcement official.’ ” Kayo v. Mertz, 19 Civ. 365
(PAE), 2021 WL 1226869, at *16 (S.D.N.Y. 2021) (quoting
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).
Specifically, with respect to the third element, “ ‘[a] police
officer cannot be held liable for failure to intervene unless
such a failure permitted fellow officers to ‘violate a suspect's
clearly established statutory or constitutional rights’ and was
under circumstances making it objectively unreasonable for
him to believe that his fellow officers’ conduct did not violate
those rights.” Jackson v. Tellado, 236 F. Supp. 3d 636, 655
(E.D.N.Y. 2017) (quoting Morris v. City of New York, No.
14 Civ. 1749 (JG) (LB), 2015 WL 1914906, at *6 (E.D.N.Y.
Apr. 27, 2015)).
Significantly, only those who are the direct objects of a
failed intervention have standing to bring such a claim.
See Martinez v. City of New York, 564 F. Supp. 3d 88,
106 (E.D.N.Y. 2021) (“[A] plaintiff must demonstrate that
the officer's failure to intervene ‘permitted fellow officers
to violate’ the plaintiff's ‘clearly established statutory or
constitutional rights,’ ”) (quoting Ricciuti, 124 F.3d at 129)
(emphasis added). According to the arguments presented,
the only individuals with whom Dets. Serrano and Horn
are alleged to have interacted in this context are Blaylock
and Ramroop, yet there is no claim of excessive force,
wrongful arrest, or other constitutional right impairment as
to either of them. Moreover, to the extent Jimenez attempts
to assert a derivative failure to intervene claim based on a
“coercive interrogation” as to Ramroop, it would fail for the
additional reason that Ramroop's responses to the detectives’
questioning played no role in Jimenez's indictment or trial,
as Ramroop, who was not an eyewitness, never testified. 20
Sackett -- § 440.10 Opinion at *39. And, as noted earlier, see
supra at 32–33, Blaylock swore before the grand jury and at
trial to his positive identification of Jimenez, an identification
he has never recanted in over thirty-five years.
It is also telling that none of the appellate reviews of Jimenez's
prosecution contain any suggestion that Dets. Serrano or
Horn engaged in any unconstitutional practice, let alone
failed to intervene in any such situation. See supra at 10–25.
Thus, since “there is no underlying constitutional violation,”
Jimenez “cannot succeed on a claim for failure to intervene
under § 1983.” Kayo, 2021 WL 1226869, at *16.
To summarize, Jimenez's claims against Dets. Serrano and
Horn fail for numerous, independent reasons, including, but
not limited to, (i) a lack of a causal throughline, (ii) a failure
to rebut the probable cause presumption from the grand jury's
indictment, and (iii) an absence of specific factual predicates
for the asserted claims. We thus dismiss Jimenez's claims
against Dets. Serrano and Horn with prejudice.
B. Jimenez's Claims as to Detective Stradford
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Jimenez also asserts the same three § 1983 claims against Det.
Stradford: malicious prosecution, see SAC ¶¶ 123–34, denial
of fair trial rights, see id. ¶¶ 135–46, and failure to intervene,
see id. ¶¶ 147–56. Again, we address each in turn.
1. Malicious Prosecution 21
*14 As discussed above, a malicious prosecution claim
has four elements, see supra at 27, one of which requires
a plaintiff to overcome the presumption of probable cause
that attaches upon a grand jury indictment. See Rothstein,
373 F.3d at 284. To defeat that presumption, there must be
evidence of grand jury impropriety or “fraud, perjury, the
suppression of evidence, or other police conduct undertaken
in bad faith.” Id. As highlighted earlier, rebutting the probable
cause presumption is a “high bar” to clear, Frederick, 2012
WL 4947806, at *27, as it requires “a finding of [grand jury]
misconduct sufficient to erode the ‘premise that the [g]rand
[j]ury acts judicially [,]’ ” Rothstein, 373 F.3d at 284 (quoting
Colon, 468 N.Y.S.2d at 455, 455 N.E.2d at 1248).
Jimenez fails to clear this “high bar,” for the record is
devoid of evidence showing any defect in the grand jury
proceedings. Indeed, the only allegation about the grand jury
proceeding is a general claim that “SERRANO, HORN and/
or STRADFORD falsely testified concerning their alleged
interactions with Blaylock and/or O'Brien, including, but not
limited to, before the Grand Jury and/or at trial.” SAC ¶ 114.
Since Jimenez's Second Amended Complaint facially lacked
specific allegations of grand jury irregularity, we asked the
parties to furnish the Court with the available grand jury
minutes to provide greater assurance for our analysis. In
response, the parties shared with the Court the grand jury
testimony of Det. Stradford, along with that of eyewitness
Blaylock. 22
The transcript of Det. Stradford's grand jury testimony fails to
offer any support for the allegation that Det. Stradford falsely
testified before the grand jury. Det. Stradford's grand jury
testimony was entirely unremarkable, and Jimenez has not
suggested otherwise since the Court requested the transcript.
Det. Stradford's testimony can be summarized as follows:
at the outset, after being sworn in, he shared his general
biographical information, including his rank, shield number,
and experience as a cold case detective. See G.J. Min. at 2:6–
3:1. Det. Stradford then explained his role in investigating
the Worrell murder. He stated that he was assigned the
case in December of 1999, and his seven-year investigation
culminated when he arrested Jimenez on August 31, 2006. Id.
at 3:1–23. Det. Stradford also acknowledged that he met with
Blaylock to conduct “an identification procedure,” during
which Blaylock recognized Jimenez as the one who shot and
killed Worrell. Id. at 3:24–4:15. This is the sum total of Det.
Stradford's grand jury testimony. 23
*15 Additionally, insofar as Jimenez's malicious
prosecution claim is based on an allegation that the grand
jury presentation did not reveal all known evidence against
Jimenez, such a claim fails as a matter of established law.
“[A] prosecutor is not required to present to the grand jury
exculpatory evidence.” Horton v. Ercole, 557 F. Supp. 2d 308,
330–31 (N.D.N.Y. 2008); see also United States v. Williams,
504 U.S. 36, 51–52 (“[R]equiring the prosecutor to present
exculpatory as well as inculpatory evidence would alter the
grand jury's historical role, transforming it from an accusatory
to an adjudicatory body.... Imposing upon the prosecutor
a legal obligation to present exculpatory evidence in his
possession would be incompatible with th[e] [traditional]
system.”). Therefore, even if Jimenez could show that some
exculpatory evidence was not presented before the grand jury,
his claim would still fail.
To conclude, Jimenez has not rebutted the presumption of
probable cause that attaches to a grand jury indictment, as
there is no evidence to “warrant a finding of misconduct
sufficient to erode the premise that the Grand Jury acts
judicially[.]” Rothstein, 373 F.3d at 284 (internal marks and
citation omitted).
2. Fair Trial Claim
Jimenez also asserts a fair trial claim against Det. Stradford.
As with his fair trial claims against Dets. Serrano and
Horn, Jimenez brings a fabrication of evidence-based claim.
First, Jimenez alleges that Det. Stradford coerced or induced
Blaylock to “agree to testify against Jimenez” and should
have known that Blaylock's identification of Jimenez was
untrue. SAC ¶¶ 65–66, 137–39. However, there are no well-
pled facts to support these serious allegations. See Iqbal, 556
U.S. at 678.
Moreover, with respect to Blaylock, Jimenez conveniently
fails to highlight that Blaylock identified Jimenez as the
shooter at least twelve years before Det. Stradford had
any involvement in the Worrell homicide investigation. See
DD-5 at R-000085. Nor does Jimenez's complaint reference
that Blaylock identified Jimenez as the shooter in sworn
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testimony before the grand jury and at trial, where he was
cross-examined. Furthermore, Jimenez overlooks the fact that
Blaylock did not retract his identification of Jimenez, even
during a telephone interview six years after the trial with
a private investigator hired by the Office of the Appellate
Defender. 24
Next, Jimenez suggests, without evidence or specifics, that
Det. Stradford knew or should have known that Blaylock's
identification of Jimenez was untrue. Such a bald allegation
is totally insufficient as a matter of law. Issues of witness
credibility, absent a few exceptions, are for the jury to decide.
United States v. Payne, 591 F.3d 46, 60 (2d Cir. 2010)
(“Assessments of witness credibility and choices between
competing inferences lie solely within the province of the
jury.”).
Finally, the absence of any factual support for the allegation
that Det. Stradford knew or should have known that
Blaylock and/or O'Brien’s identification testimony was false
segues well into the equally unsupported allegation that
Det. Stradford “failed to produce to the District Attorney's
Office exculpatory information that would have materially
benefitted the defense, thereby bringing about violations of
Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United
States, 405 U.S. 150, 154 (1972).” SAC ¶ 140. A careful
review of Judge Oetken's habeas opinion establishes that
there is no reference to Dets. Serrano, Horn, or Stradford
as having involvement in, or responsibility for, any possible
Brady violations. See Oetken Opinion -- Habeas at *1–13; see
also supra at 23–25.
*16 In addition, Jimenez contends that his fair trial rights
were denied as a result of Det. Stradford's interactions
with O'Brien. Jimenez broadly claims that “O'Brien falsely
inculpated Jimenez due to inducement and/or other and
further suggestive and/or otherwise improper conduct by
STRADFORD,” SAC ¶ 75, and that Stradford “knew and/
or should have known” that O'Brien had falsely implicated
Jimenez, id. ¶ 76. Jimenez does not offer any specific
indication as to how Det. Stradford's investigative practices
were suggestive or provided any inducement to O'Brien. 25
There is no basis to conclude that Det. Stradford coerced
an identification or a statement from O'Brien, nor is there
a suggestion that Det. Stradford showed O'Brien fabricated
evidence to compel him to implicate Jimenez. See Sackett
-- § 440.10 Opinion at *8–10. Indeed, Jimenez's position
is that O'Brien, facing a lengthy federal sentence, needed
no inducement from Det. Stradford to testify falsely or
otherwise. Jimenez's effort to recast Det. Stradford as
a juror responsible for evaluating the truth of O'Brien’s
testimony based on O'Brien’s motivation to fabricate is
simply misplaced.
3. Failure to Intervene
The third cause of action in the Second Amended Complaint
is styled as a broad allegation that “SERRANO, HORN, and
STRADFORD failed to intervene to prevent, end, or report
the unconstitutional conduct to which Jimenez was subjected,
despite the fact that they had opportunities to do so[,] [and]
[h]ad any of them come forward, it would have prevented
Jimenez from being wrongfully convicted.” SAC ¶¶ 148–
49. We have already addressed and dismissed this cause of
action with respect to Dets. Serrano and Horn. See supra at
35–38. Turning now to Det. Stradford, an examination of
the pleading reveals the absence of any factual allegation
that would support a failure to intervene claim against him.
Indeed, the only references to Det. Stradford are in the recitals
of the elements of the cause of action. See e.g., SAC ¶¶ 148,
151–53. Clearly, those recitals, without supportive facts, are
insufficient to state a claim. “ ‘Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.’ ” Brown v. Daikin Am. Inc., 756
F.3d 219, 225 (2d Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
Moreover, Jimenez has apparently, and appropriately, reached
the same conclusion, as his answering memorandum on the
pending motion only references Dets. Serrano and Horn on
the failure to intervene claim. 26
Finally, it is fundamental that there must be at least two actors
to create a potential failure to intervene claim, 27 and since
Det. Stradford, according to the complaint, conducted his
investigation alone, see SAC ¶¶ 64–77, there was never a
basis for a failure to intervene claim against him.
C. Jimenez's Municipal Liability Claims under § 1983
and Monell
*17 Jimenez also asserts claims under § 1983 and Monell
v. Department of Social Services of City of New York, 436
U.S. 658 (1978), against the Bronx County District Attorney's
Office and the City of New York. Jimenez's claim against the
Bronx DA is dismissed, as that office is not a suable entity. 28
We now turn to Jimenez's Monell 29 claim against the City of
New York.
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A municipality may not be held liable for unconstitutional
conduct under § 1983 on the basis of respondeat superior.
Monell, 436 U.S. at 693-95. Thus, a plaintiff must establish
that the municipality itself was directly at fault, Oklahoma
City v. Tuttle, 471 U.S. 808, 823–24 (1985), by linking a
predicate “constitutional tort,” some “purposeful or knowing
conduct,” or “deliberate indifference,” Farmer v. Brennan,
511 U.S. 825, 835–41 (1994) (internal citations omitted),
to a specific “action pursuant to official municipal policy,”
Monell, 436 U.S. at 691. This analytical structure often drives
courts in this Circuit to “bifurcate or stay discovery on Monell
claims until after the plaintiff established that an individual
defendant violated the plaintiff's constitutional rights.” Lopez
v. City of New York, No. 20 Civ. 2502 (LJL), 2021 WL
2739058, at *2 (S.D.N.Y. July 1, 2021); see e.g., Ricciuti v.
New York City Transit Auth., 796 F. Supp. 84, 88 (S.D.N.Y.
1992) (granting motion to bifurcate discovery in a Monell
action).
Here, Jimenez's municipal liability claim is predicated on
purported systematic Brady violations in the Bronx DA's
Office, which, by extension, are attributed to New York
City. 30 Jimenez's claim fails because the presence of a
Brady violation, without a further showing of intent, is an
insufficient “constitutional tort” for Monell purposes. When
bringing a § 1983 Brady claim, a plaintiff must not only
show that police or prosecutors withheld material exculpatory
evidence, but that such evidence was willfully or intentionally
withheld. Bellamy v. City of New York, 914 F.3d 727,
751 n.23 (2d Cir. 2019) (“[A] civil Brady claim requires
a showing that the non-disclosure was intentional.”); see
also Fappiano v. City of N.Y., 640 F. App'x 115, 118 (2d
Cir. 2016) (“We have never held that anything less than an
intentional Brady violation establishes a § 1983 due process
claim for damages.”). Here, the record establishes that the
ADA's actions lacked the required intentionality. Indeed, the
record is to the contrary. See supra at 14–16, 18–22.
*18 To begin, of the four Brady claims reviewed by the
Appellate Division, three were wholly rejected. See supra
at 18–21. And while the fourth (i.e., the non-disclosure
regarding O'Brien’s desired sentence reduction) was deemed
sufficient to warrant a hearing before the trial court, the
Appellate Division noted that there was nothing in the record
to “establish[ ] that the Bronx prosecutor knew there was
a quid pro quo in place for O'Brien’s testimony.” Appeal
of Sackett's § 440.10 Opinion at 142 A.D.3d at 162, 37
N.Y.S.3d at 235. Moreover, on the remanded Brady issue,
the trial judge, after a hearing, found that there was no
such Brady violation, that both ADA Mattaway and O'Brien
credibly testified that there was no quid pro quo, and that
the disclosures at trial were complete. Torres, J. -- Remand
at *3–4. Furthermore, while Judge Oetken, contrary to the
state courts, found a Brady violation, he never indicated that
any non-disclosure attributable to ADA Mattaway was willful
or malevolent. See Oetken Opinion -- Habeas at *3–13;
see also supra at 23–25. And more broadly, Justice Sackett,
beyond rejecting all the Brady arguments, found that any
disclosure failures “do[ ] not appear to be willful,” Sackett --
§ 440.10 Opinion at *18, and were “inadvertent” rather than
“intentional,” id. at *24.
In sum, four justices of the Appellate Division, Justice Sackett
on Jimenez's § 440.10 motion, and Justice Torres on the one
remanded issue found no Brady violations. Judge Oetken
reached the opposite conclusion. However, the issue before
this Court is not which judge or judges were correct in
their view of the law. Rather, a sufficient takeaway for our
purposes is that reasonable jurists disagreed about whether
there was a Brady violation, and that lack of consensus
clearly demonstrates that any alleged Brady violation was
not so glaringly intentional or flagrant as would be required
to satisfy the civil Brady standard. Moreover, as noted, both
Justices Sackett and Torres found that any non-disclosure was
not willful or intentional. Jimenez's Monell claim thus fails
and is dismissed.
D. Common Law Negligence
Finally, Jimenez asserts that the City is liable under a common
law negligence theory for hiring and retaining the defendant
detectives. While we could decline to exercise supplemental
jurisdiction over this state claim, Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350, n.7 (1988) (“[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 ... will point toward declining to exercise
jurisdiction over the remaining state-law claims.”), given the
age of the case and the baselessness of Jimenez's claim, we
address it on the merits.
Any negligent hiring theory presumes that a “predicate tort”
has indeed occurred. Zeak v. United States, No. 11 Civ.
4253 (KPF), 2015 WL 246340, at *3 (S.D.N.Y. Jan. 20,
2015) (“Lacking a predicate tort, Plaintiff cannot proceed
with the derivative claim of negligent hiring and retention.”).
Here, since we have not, after close consideration, found
any constitutional violations by any individual defendant, we
conclude that Jimenez lacks the basic, necessary predicate to
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sustain his negligent hiring claim. Accordingly, it is dismissed
on the merits.
CONCLUSION
For the foregoing reasons, the Court grants defendants’
motion and dismisses Jimenez's Second Amended Complaint
in its entirety and with prejudice. The Clerk of Court is
respectfully requested to terminate the motion pending at ECF
No. 45 and close the case.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 935233
Footnotes
1 The three detectives are: Wendell Stradford, Christopher Horn, and Michael Serrano. Karen Serrano-Paglia
is named as a defendant as Administrator of the Estate of Detective Serrano.
2 Unless otherwise noted, the facts considered and recited herein are drawn from Jimenez's Second Amended
Complaint and are accepted as true for the purposes of the instant motion. See McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 191 (2d Cir. 2007). However, any legal conclusions raised in plaintiff's complaint need
not be accepted as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he 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.”). Additionally,
we rely on the facts outlined in the various state and federal court opinions issued in Jimenez's case since
2006, which are incorporated by reference into the complaint given Jimenez's “reliance on the terms and
effect” of such opinions. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). Also, on a motion
to dismiss, a court may consider “documents attached to the complaint as an exhibit or incorporated in it by
reference, ... matters of which judicial notice may be taken, or ... documents either in plaintiff[’s] possession
or of which plaintiff[ ] had knowledge and relied on in bringing suit.” Brass v. American Film Technologies,
Inc., 987 F.2d 142, 150 (2d Cir. 1993).
3 This Decision and Order by Supreme Court Justice Robert A. Sackett is discussed at some length below.
See infra at 12–15.
4 It should be noted that the account that Blaylock originally offered to Dets. Serrano and Horn, as memorialized
in their DD-5 reports, see SAC, Exs. B–C, is consistent with Blaylock's 2006 testimony before the Grand
Jury. In that testimony, Blaylock explained that, during his shift at the movie theatre, he was “talking with
[his] girlfriend at the time an argument” broke out in the concession line between a man and “the perp, which
was known to [him] as Leon.” See Grand Jury Minutes (“G.J. Min.”) at 4:13–5:4. Blaylock stated that the
argument ended and the men parted ways. Id. at 5:5–7. Shortly thereafter, Blaylock, who had entered the
theatre showing the Batman movie, noticed that “Leon” had returned and “was looking around ... searching
for something [in the theatre]. And he seen the guy [he argued with in the concession line]. Words were
exchanged. And I heard two shots ring out. You know, I seen the flash from the gun and that's when I went
outside along with the crowd.” Id. at 5:5–6:21. Blaylock then described his 2006 meeting with Det. Stradford.
Id. at 20:15–21:21. He stated that Det. Stradford asked several questions about the shooting before showing
him a photo array, in which he “recognized the guy that I know as Leon, the guy that shot the other guy.”
Id. at 21:10–21.
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5 It should be noted that Ramroop, on October 26, 2012 -- twenty-three years after she identified a picture
of Jimenez -- was approached at her home in East Dulwich, London, by an attorney from the Office of the
Appellate Defenders (“OAD”). SAC, Ex. D. Before the OAD lawyer, she signed a statement indicating that
she “would like to have nothing further to do with this matter” and that she “d[id] not know, and [has] never
known, the person in th[e] photograph” of Jimenez that she was shown. Id.
6 The Appellate Division also rejected claims of pre-indictment delay and challenges to the prosecutor's
summation. Id. at 71 A.D.3d at 484, 896 N.Y.S.2d at 71. Also, it bears noting that the Appellate Division
affirmed the trial court's decision not to charge justification, finding that Jimenez “did not preserve his
argument that a justification charge was supported by a portion of his statement to the informant (a statement
defendant claims to be the informant's fabrication), and we decline to review it in the interest of justice.” Id.
at 71 A.D.3d at 484, 896 N.Y.S.2d at 70.
7 This Decision and Order is included as an exhibit to Jimenez's second amended habeas petition, filed on
April 24, 2019, before Judge Oetken. See Jimenez v. Graham, No. 11 Civ. 6468 at ECF No. 37–5, pgs. 1–44.
8 The Appellate Division had previously rejected these claims in Jimenez's direct appeal in finding that the
verdict was not against the weight of the evidence. See supra at 11–12.
9 In this regard, after proffers from the prosecutor about additional witnesses it could call, the Appellate Division
observed that “for each new witness who defendant claims can unequivocally establish his innocence, there
is another who can raise serious doubt about it, to say nothing of witnesses who actually testified at trial.”
Id. at 142 A.D.3d at 158, 37 N.Y.S.3d at 232.
10 The Appellate Division briefly addressed and rejected other Brady issues, which have played no role in this
§ 1983 case.
11 This Decision and Order is included as an exhibit to Jimenez's second amended habeas petition, filed on
April 24, 2019, before Judge Oetken. See Jimenez v. Graham, No. 11 Civ. 6468 at ECF No. 37–3, pgs. 1–4.
12 This Decision and Order is included as an exhibit to Jimenez's second amended habeas petition, filed on
December 5, 2019, before Judge Oetken. See Jimenez v. Graham, No. 11 Civ. 6468 at ECF No. 56–1.
13 Jimenez filed this action on August 2, 2023. See ECF No. 1. Defendants sought leave to dismiss on December
8, 2023, see ECF No. 28, but before any motion could be made, Jimenez filed a first Amended Complaint
on January 10, 2024, see ECF No. 32, and a Second Amended Complaint on January 22, 2024, see ECF
No. 35. On March 1, 2024, defendants moved to dismiss the Second Amended Complaint. See ECF No. 45.
That motion was fully briefed on April 19, 2024. See ECF Nos. 46, 49, 51.
14 Jimenez also brings a malicious prosecution claim under New York law, but since the § 1983 standard
embodies the requisite state standard, we need not analyze his state claim separately. See id.
15 Det. Serrano testified at trial, but his testimony was limited to the investigation in 1989. See Appeal of Sackett's
§ 440.10 Opinion, 142 A.D.3d at 153, 37 N.Y.S.3d at 228.
16 It is also worth highlighting that under New York law, a “confirmatory identification” from a single photograph
does not implicate due process concerns. People v. Rodriguez, 79 N.Y.2d 445, 593 N.E.2d 268 (1992).
Indeed, the single photograph method can be “confidently applied where,” as here, “the protagonists are ...
friends or acquaintances.” Id. at 79 N.Y.2d at 450, 593 N.E.2d at 272.
17 Moreover, Blaylock notably did not withdraw his identification of Jimenez while under oath before the grand
jury and at trial. See infra at 32–33.
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18 In Jimenez's efforts to undermine the series of consistent identifications made by Blaylock over many years,
Jimenez attached to his complaint an affidavit, dated April 23, 2012, from a “private investigator” hired on
Jimenez's behalf. See SAC, Ex. E. Even apart from the fact that this affidavit clearly constitutes inadmissible
hearsay, it notably does not contain a recantation of Blaylock's identification. Moreover, while this Court has
no independent capacity to learn what documents were presented to Justice Sackett, this affidavit, bearing
the date of April 23, 2012, was available to file in connection with Jimenez's § 440.10 motion and yet it is
not mentioned in either Justice Sackett's decision or in the appeal therefrom. Sackett -- § 440.10 Opinion
at *1–44; Appeal of Sackett's § 440.10 Opinion, 142 A.D.3d at 149–64, 164, 37 N.Y.S.3d at 225–36; see
also infra at 43 n.24.
19 Given that no prosecution resulted during the time that Dets. Serrano and Horn were assigned to the
investigation, there is no basis for an assertion of a Brady claim against the detectives, assuming that the
Second Amended Complaint tries to assert one.
20 For completeness, we note that there is no suggestion in the record that Det. Stradford ever had any
interaction with Ramroop.
21 As discussed earlier, see supra at 27 n.14, we recognize that Jimenez asserts malicious prosecution claims
under both § 1983 and state law, but since a § 1983 malicious prosecution claim's elements encompass the
elements of a state law malicious prosecution claim, we do not discuss them as separate causes of action.
22 Counsel from both sides represented to this Court in an email from November 13, 2024, that the grand jury
minutes made available to the Court reflect “the only grand jury testimony from Det. Stradford.” Similarly,
Blaylock's testimony appears complete.
23 As for Dets. Serrano and Horn, Jimenez's counsel urges us not to accept the Corporation Counsel's
representation that neither testified before the grand jury. See ECF No. 49 (“Pl.’s Opp.”) at 15 n.2. Apart
from counsel's obligation to be candid with the Court, see ABA Code of Professional Responsibility, Rule
3.3, Candor Toward the Tribunal, there is no reason to doubt the Corporation Counsel's representation. First,
given that Det. Stradford and Blaylock testified before the grand jury, there was no need for the District
Attorney's Office to have called Dets. Serrano or Horn. Second, the Appellate Division's opinion on Jimenez's
§ 440.10 petition notes that Det. Serrano identified the DD-5 in connection with his interview of one of the
eyewitnesses. See Appeal of Sackett's § 440.10 Opinion, 142 A.D.3d at 153, 37 N.Y.S.3d at 228. Given that
Det. Serrano testified at trial, his prior statements would have been produced to the defendant in the normal
course of trial. Thus, had Det. Serrano testified before the grand jury, Jimenez would have that testimony,
which he apparently does not. Further, there is no indication that Det. Horn testified at trial or otherwise.
24 This telephone interview is, of course, inadmissible hearsay, and it was notably not relied upon by Jimenez in
his § 440.10 motion. See supra at 12–23. During Blaylock's discussion with the defense's private investigator,
he described Det. Stradford's identification procedure as a “Where's Waldo” type situation in which Jimenez's
photograph appeared in multiple arrays. SAC, Ex. E at ¶ 3. However, as noted above, see supra at 33 n.18,
although the OAD had the affidavit from the private investigator, whom they hired, during the pendency of
Jimenez's § 440.10 motion before the New York State Supreme Court, there is no mention of it in the lengthy
opinion by Justice Sackett or in the § 440.10 appeal. A reasonable conclusion is that it was either not filed
or was not the focus of Jimenez's motion.
25 In fact, Justice Torres, after having heard from Det. Stradford in a hearing, made the following factual finding:
“I find no evidence of any agreement of any kind other than what the parties disclosed at trial and testified
to before this Court at the hearing.” Torres, J. -- Remand at *4.
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26 Indeed, Jimenez has -- by failing to discuss the failure to intervene claim against Det. Stradford in his
opposition brief -- effectively abandoned his intervention claim against Det. Stradford. Courts in this Circuit
often dismiss “a plaintiff's claims when the plaintiff did not discuss them in his opposition to the defendant's
motion to dismiss.” Farag v. XYZ Two Way Radio Serv., Inc., No. 22 Civ. 1795, 2023 WL 2770219, at *2
(2d Cir. Apr. 4, 2023) (citing Gross v. Rell, 585 F.3d 72, 94 (2d Cir. 2009)). Thus, where a party either only
partially opposes a relevant issue or fails to engage with or defend the issue entirely, that issue is considered
to “ ‘have been abandoned.’ ” Farag, 2023 WL 2770219, at *2 (quoting Jackson v. Fed. Express, 766 F.3d
189, 198 (2d Cir. 2014)).
27 Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (“A police officer cannot be held liable in
damages for failure to intercede unless such failure permitted fellow officers to violate a suspect's clearly
established statutory or constitutional rights of which a reasonable person would have known.”) (internal
marks omitted); Jackson v. City of New York, 939 F. Supp. 2d 219, 231 (E.D.N.Y. 2013) (“An officer may be
held liable [on a failure to intervene claim] for preventable harm caused by the actions of other officers.”).
28 The “Eleventh Amendment prohibits individuals from suing the District Attorney's Office, an arm of the state,
for damages under 42 U.S.C. § 1983 arising from prosecutorial decisions.” Quiles v. City of New York, No. 01
Civ. 10934 (LTS) (THK), 2002 WL 31886117, at *2 (S.D.N.Y. Dec. 27, 2002). And, as the Supreme Court has
held, “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by
citizens of another state.” Employees v. Missouri Public Health & Welfare Dep't, 411 U.S. 280, 280 (1973).
29 The elements of a Monell claim are well-established. “[T]o hold a city 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.”
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
30 Jimenez asserts that the underlying constitutional tort is ADA Mattaway's failure to turn over material that
Judge Oetken found constituted Brady. See Oetken Opinion -- Habeas at *3–13. To be clear, our analysis
at this stage proceeds with Judge Oetken's opinion as a given.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Johnson v. City of New York, Not Reported in F.Supp.2d (2000)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2000 WL 1335865
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Martin JOHNSON, Plaintiff,
v.
THE CITY OF NEW YORK, Assistant District
Attorney Robert Henoch, Captain of Corrections Martin,
Corrections Officer Schmidt, Corrections Officer Brown
and Unidentified Correction Officers, Defendants.
No. 00CIV.3626(SHS).
|
Sept. 15, 2000.
OPINION AND ORDER
STEIN, D.J.
*1 Martin Johnson has brought this action pursuant to 42
U.S.C. § 1983 seeking monetary damages on the grounds that
the defendants—the City of New York, an Assistant District
Attorney, and certain Corrections Officers—violated his
constitutional rights under the Fourth, Eighth and Fourteenth
Amendments to the U.S. Constitution by failing to protect
him from an attack by fellow inmates against whom he had
arranged to testify. Johnson also asserts two tort claims. The
Assistant District Attorney moves to dismiss the complaint
as it pertains to him pursuant to Fed.R.Civ.P. 12(b)(6) for
failure to state a claim upon which relief can be granted and
pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter
jurisdiction. For the following reasons, the motion is granted
and the complaint is dismissed as to ADA Henoch.
BACKGROUND
The facts are taken from plaintiff's complaint and are assumed
to be true for purpose of this motion. In May of 1998 Johnson
was arrested for allegedly selling crack cocaine. Complaint
at 4. Shortly after his arrest, he entered into a cooperation
agreement with ADA Henoch to testify against several of
his co-defendants. 1 Id. ADA Henoch allegedly “assured”
plaintiff at that time that he “would protect him[ ]” from
possible retaliation by his co-defendants. Id. Johnson claims
that he was being held in Beacon, a housing area on Rikers
Island, which was in “the same general area” as where the
people against whom he was to testify were held and that he
alerted ADA Henoch of this fact. Id. ADA Henoch “explicitly
assured [him] that he would be safe” and that “he would be
placed in protective custody.” Id. at 4–5. Plaintiff also alerted
defendant Corrections Officers Martin, Schmidt, Brown and
“Unidentified Correction Officers” to his danger. Id. at 5.
On February 24, 1999, plaintiff was attacked by fellow
inmates “who called him a snitch as they beat and kicked
him.” Id. As a result of the beating, Johnson suffered a
fractured ankle, injuries to his head, neck and legs, and
damage to his retina that required surgery. Id. ADA Henoch,
after learning of the attack on plaintiff, “acknowledged [his]
prior request for protection.” Id.
As noted above, Johnson has filed this action against the City
of New York, Correction Officers Martin, Schmidt, Brown,
and ADA Henoch and the ADA has moved to dismiss the
complaint on the grounds that it fails to state a constitutional
claim for which relief may be granted and that he is entitled
to either absolute or qualified prosecutorial immunity.
DISCUSSION
When reviewing a motion to dismiss, a court must accept as
true the factual allegations of the complaint and must view
the pleadings in the light most favorable to and draw all
reasonable inferences in favor of the non-moving party. See
Jamison v. Dee, 2000 WL 502871 (S.D.N.Y. April 27, 2000)
(citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d
Cir.1993)). Dismissal of the complaint is only proper when “it
appears beyond doubt that plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45–46 (1957).
I. Absolute Immunity
*2 It is well-established that prosecutors are absolutely
immune from suits for damages arising from actions which
are “intimately associated with the judicial phase of the
criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430–
31, 96 S.Ct. 984, 994–95, 47 L.Ed.2d 128 (1976); see Buckley
v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d
209 (1993). Whether a prosecutor has absolute immunity
“depends principally on the nature of the function performed,
not on the office itself.” Ying Jing Gan v. City of New York,
996 F.2d 522, 530 (2d Cir.1993). Such functions include
the decision to bring charges against a defendant, see Gan,
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996 F.2d at 530, presenting evidence to a grand jury, see
Barret v. United States, 789 F.2d 565, 571–72 (2d Cir.1986),
and the evaluation of evidence prior to trial. See Kalina v.
Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 139 L.Ed.2d 471
(1997). Absolute immunity is not available, however, when
a prosecutor “undertakes conduct that is beyond the scope of
his litigation-related duties.” Barbera v. Smith, 836 F.2d 96,
99 (2d Cir.1987).
Barbera v. Smith, 836 F.2d 96, 100, is closely analogous
to this action. In Barbera, the Second Circuit held that a
prosecutor was not entitled to absolute immunity where he
twice refused to provide a cooperating witness with police
protection. Id. at 98. The witness had agreed to testify in return
for a more lenient sentence and was murdered by a contract
killer hired by the target of the prosecutor's investigation.
Id. The Court found that “the government was still seeking
evidence, including testimony from [the victim], that would
enable it to prosecute ...” and that “this task [providing
protection] was [not] so intimately associated with the judicial
phase of the criminal process ...” as to entitle the prosecutor
to absolute immunity. Id.
Here, as in Barbera, defendant's activities were not “so
intimately associated with the judicial phase of the criminal
process” as to entitle him to absolute immunity from suit. See
Gan, 996 F.2d at 531 (“the claim that [the prosecutor] failed
to protect [plaintiff] asserts conduct that plainly is not integral
either to a decision of whether or not to institute a prosecution
or to the conduct of judicial proceedings. Accordingly, if
[defendant] is to be accorded immunity ... it can only be
qualified immunity .”). Therefore absolute immunity is not
available to the district attorney in this action.
II. Qualified Immunity
In general, “the defense of qualified immunity cannot support
the grant of a ... 12(b)(6) motion for failure to state a claim
upon which relief can be granted.” Green v. Maraio, 722
F.2d 1013, 1018 (2d Cir.1983). Qualified immunity is an
affirmative defense that must be pleaded by the official
claiming it. See Satchell v. Dilworth, 745 F.2d 781, 784
(2d Cir.1984) (citing Harlow v. Fitzgerald, 457 U.S. 800,
815, 102 S.Ct. 2727, 72 L.Ed .2d 396 (1982)). Dismissal
for failure to state a claim is thus appropriate where the
complaint itself presents the qualified immunity defense. See,
e.g., Green, 722 F.2d at 1019. The United States Supreme
Court has also held that “unless the plaintiff's allegations state
a claim of violation of clearly established law, a defendant
pleading qualified immunity is entitled to dismissal before
the commencement of discovery.” Mitchell v. Forsyth, 472
U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); See
also Robison v. Via, 821 F.2d 913, 920 (2d Cir.1987) (citing
Procunier v. Navarette, 434 U.S. 555, 565 (1978) (prison
officials entitled to dismissal of claims of violating prisoner's
First and Fourteenth Amendment rights by interfering with
mail where such rights had not been clearly established)).
Even when viewed in the light most favorable to plaintiff and
drawing all reasonable inferences in his favor, Mills, 12 F.3d
at 1174, Johnson's allegations regarding the District Attorney
do not state a violation of a clearly established constitutional
right. Thus, dismissal pursuant to Fed.R.Civ.P. 12(b)(6) is
appropriate. See, e.g., Molinelli v. Tucker, 901 F.2d 13, 16 (2d
Cir.1990).
*3 Qualified immunity shields government actors
performing discretionary functions from “ ‘liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” ’ Lennon v. Miller, 66
F.3d 416, 420 (2nd Cir.1995) (quoting Harlow, 457 U.S. at
818). To determine whether a right was clearly established
at the time defendant acted, the Court must consider: “(1)
whether the right in question was defined ‘with reasonable
specificity’; (2) whether the decisional law of the Supreme
Court and the applicable circuit court support the existence of
the right in question; and (3) whether under preexisting law
a reasonable defendant official would have understood that
his or her acts were unlawful.” Gan, 996 F.2d at 532 (quoting
Jermosen v.. Smith, 945 F.2d 547, 550 (2d Cir.1992)).
The District Attorney claims that he is entitled to qualified
immunity because, even if he had a constitutional duty to
protect Johnson, it was not a clearly established duty. The Due
Process Clause itself does not require the State to protect “the
life, liberty, [or] property of its citizens against invasion by
private actors.” Deshaney v. Winnebago County Dep't of Soc.
Serves, 489 U.S. 189, 195, 109 S.Ct. 998, 1002, 103 L.Ed.2d
249 (1989). Therefore, as a general rule, “a State's failure to
protect an individual against private violence simply does not
constitute a violation of the Due Process Clause.” Id. at 197,
109 S.Ct. at 1004. The only judicially recognized exceptions
to this rule are custodial relationships where “the State takes a
person into its custody and holds him there against his will,”
Id. at 199–200, 109 S.Ct. at 1005 (the “special relationship”
exception), or when the government affirmatively creates or
increases the danger an individual is placed in. See Dwares
v. City of N.Y., 985 F.2d 94, 98–99 (2d Cir.1993) (the “state-
created danger” exception).
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Special relationships that have given rise to a governmental
duty to protect against third-person attacks include “custodial
relationships such as a prison and inmate or a mental
institution and involuntarily committed patient, and the
relationship between a social service agency and foster child.”
Gan, 996 F.2d at 532 (citing cases).
The Second Circuit has also recognized the state-created
danger exception to DeShaney's general rule. See Dwares,
985 F.2d at 99 (police officers agreed in advance with
members of a group to allow the group to assault the plaintiff,
did not interfere during the beating and did not arrest those
who assaulted the plaintiff); Hemphill v. Schott, 141 F.3d
412, 418 (2d Cir.1998) (arresting officers returned gun to
robbery victim and drove him to the scene of suspect's
arrest, where the victim shot the suspect); see also Freeman
v. Ferguson, 911 F.2d 52, 54 (8th Cir.1990) (reversing
dismissal on qualified immunity grounds against police chief
who instructed subordinates to ignore victim's request for
protection from her husband, who was the chief's friend).
*4 Johnson contends that the District Attorney's proffer
of the cooperation agreement and assurance that he would
protect plaintiff conferred upon the District Attorney a
constitutional duty to protect Johnson. 2 Plaintiff claims that
the prosecutor's duty to protect him was clearly established
by DeShaney and by Farmer v. Brennan, 511 U.S. 825,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (prison officials
may be held liable under Eighth Amendment for denying
humane conditions of confinement only if they know that
inmates face substantial risk of serious harm and disregard
that risk by failing to take reasonable measures to abate it).
However, neither DeShaney nor Farmer clearly establish the
law regarding plaintiff's allegations. While the very action
in question need not have been previously held unlawful
for a constitutional right to be clearly established, Duncan
v. Kean, 1995 WL 649931, *3 (S.D.N.Y. Nov. 6, 1995)
(citing Aveni v. Mottola, 35 F.3d 680, 686 (2d Cir.1994)), it
must be “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson
v. Creighton, 483 U.S. 635, 639 107 S.Ct. 3034, 3039, 97
L.Ed.2d 523 (1987).
The Second Circuit has twice considered and rejected claims
against prosecutors for failure to protect a witness from attack
by a third party. See Barbera, 836 F.2d at 100–01; Gan, 996
F.2d at 533–34. In Gan, a panel of the Second Circuit wrote
that
“[p]laintiffs have not called to
our attention any case before or
since [Barbera ] ... in which
the lodging of a complaint with
law enforcement officials, or the
complainant's compliance with a
request to identify suspects, either
singly or in combination, has been
held (a) to create a relationship
that gives the complaining witness a
constitutional right to protection, or (b)
to impose a corresponding duty on a
prosecutor.”
Id. at 533–34.
Here, as in Gan, plaintiff points to no case, and the Court
is aware of none, where it has been held that a prosecutor's
alleged promise to protect an inmate who agrees to testify
creates a special relationship that gives rise to a constitutional
right to protection from a third party. Nor is the Court aware
of any decision which has held that the mere proffer of
a cooperation agreement by a prosecutor so increases the
danger to an inmate that it creates a constitutional duty for
the prosecutor to protect the inmate from potential attacks
by third persons. A prison official's willful failure to protect
an inmate from another inmate's violent actions violates the
Constitution if the officer was “deliberate[ly] indifferen[t] to
the consequences of his conduct for those under his control
and dependent upon him,” Morales v. New York State Dep't
of Corrections, 842 F.2d 27, 30 (2d Cir.1988). However, no
corresponding duty has been found to exist between an inmate
and prosecutor.
Based on the limited caselaw in existence at the time of the
alleged attack, and particularly because of the absence of any
caselaw which holds that any state actor other than a prison
official owes a duty to protect an inmate from another inmate's
violent actions, it cannot be said that it was clearly established
that defendant ADA Henoch had created or assumed a special
relationship with Johnson imbuing him with a constitutional
duty to protect him. Therefore, this Court “need not decide
whether [it] would hold that these circumstances create such
a right and corresponding duty, for in the absence of any
such holdings and in the face of the general rule articulated
in DeShaney, it could not have been clear to a reasonable
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Johnson v. City of New York, Not Reported in F.Supp.2d (2000)
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prosecutor that his failure to provide protection ... would
have violated [plaintiff's] rights under the Constitution.” Gan,
996 F.2d at 534. Defendant Henoch is therefore entitled to
qualified immunity.
III. The Pendent State Claims
*5 The ADA's motion to dismiss plaintiff's pendent state
law claims is likewise granted. The Court declines to exercise
supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)
(3). Accordingly, the state law claims against ADA Henoch
are dismissed without prejudice. See United Mine Workers of
America v. Gibbs, 338 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16
L.Ed.2d 218 (1966); Carnegie–Mellon University v. Cohill,
484 U.S. 343, 350 n. 7, 98 L.Ed.2d 720 (1988); Mayer v. Oil
Field Systems Corp., 803 F.2d 749, 757 (2d Cir.1986).
IV. CONCLUSION
For the reasons set forth above, the prosecutor's motion to
dismiss is granted and the complaint is dismissed as against
the assistant district attorney.
SO ORDERED:
All Citations
Not Reported in F.Supp.2d, 2000 WL 1335865
Footnotes
1 The complaint states that plaintiff entered into the cooperation agreement with ADA Henoch on June 18,
1999. Complaint at 4. Plaintiff's opposition, however, states the cooperation agreement was entered into
in “June of 1998”. Opposition at 2. In addition, plaintiff has recently sought—successfully—to amend the
complaint to allege that the agreement was made in June of 1998. Accordingly, this Court will assume that
plaintiff entered into the cooperation agreement with defendant in June, 1998.
2 Johnson does not specify whether he is claiming defendant Henoch owed a duty to protect him based on the
special relationship or state-created danger exception to the DeShaney rule. For the purpose of this motion,
both arguments will be addressed.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Johnson v. McMorrow, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 1797063
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Christopher JOHNSON, Plaintiff,
v.
Trooper Andrew MCMORROW, Trooper Marisa
Rodriguez, and John Does ## 1-10, Defendants.
19-CV-06480 (PMH)
|
Signed February 7, 2023
Attorneys and Law Firms
Arthur Gabriel Larkin, III, Hale & Monico LLC, New York,
NY, for Plaintiff.
Wesley Eugene Bauman, New York City Law Department,
New York, NY, John Roach Doran, New York State Office of
the Attorney General, New York, NY, for Defendants Trooper
Andrew McMorrow, Trooper Marisa Rodriguez.
OPINION AND ORDER
PHILIP M. HALPERN, United States District Judge:
*1 Christopher Johnson (“Plaintiff”) brings this action
against New York State Troopers Andrew McMorrow
(“McMorrow”) and Marisa Rodriguez (“Rodriguez” and
together, “Defendants”), 1 asserting claims under 42 U.S.C.
§ 1983 and state law for malicious prosecution, denial of a
fair trial, and failure to intervene, arising out of his traffic-stop
arrest on February 9, 2018. (Doc. 1, “Compl”). 2
Pending presently before the Court is Defendants' motion
for summary judgment seeking dismissal of the Complaint
under Federal Rule of Civil Procedure 56. (Doc. 94; Doc.
95, “Def. Br.”; Doc. 95-1, “McMorrow Decl.”; Doc. 95-2,
“Rodriguez Decl.”; Doc. 96). 3 Plaintiff opposed Defendants'
motion (Doc. 99, “Opp. Br.”; Doc. 100, “Larkin Decl.”; Doc.
101, “Johnson Decl.”, Doc. 102, “56.1”) and the motion was
fully submitted with the filing of Defendants' reply brief on
April 15, 2022 (Doc. 103, “Reply”).
*2 For the reasons set forth below, Defendants' motion is
GRANTED and the Complaint is dismissed.
BACKGROUND
The Court draws the facts herein from the pleadings,
Defendant's Rule 56.1 Statement, Plaintiff's responses
thereto, and the admissible evidence proffered by the parties.
Because the parties give differing accounts of the events
leading up to Plaintiff's arrest, each side's version is set forth
herein.
On February 9, 2018, Rodriguez was assigned to patrol
with her field training officer, McMorrow. (56.1 at 3 ¶ 13).
They were stationary in a marked troop car at or near the
merge of State Route 9 and State Route 9A. (Id. at 4 ¶ 15).
Defendants testified that, at approximately 3:30 a.m., they
observed a white Dodge Challenger (the “Vehicle”) enter
Route 9 and rapidly accelerate to a visually estimated speed
of 80 miles per hour in a posted 55-mile-per-hour zone.
(Doc. 96-6, “McMorrow Tr.” at 90:17-91:12, 115:12-15; Doc.
96-7, “Rodriguez Tr.” at 36:21-37:9). Defendants testified
that Rodriguez then activated the patrol car's radar system
to confirm the vehicle's rate of speed. (McMorrow Tr. at
92:5-11; Rodriguez Tr. at 37:2-9). McMorrow instructed
Rodriguez, who was driving the troop car, to follow the
Vehicle. (56.1 at 4 ¶ 18). Rodriguez, while maintaining
a distance of several car lengths, followed the Vehicle
for approximately three to four minutes. (Id. at 4 ¶ 19).
Defendants testified that during that time, they observed
the vehicle engage in multiple traffic violations, including
an inability to stay in one lane, speed acceleration and
deceleration, and a failure to use turn signals. (McMorrow
Tr. at 94:14-95:15; Rodriguez Tr. at 38:12-19; see also Doc.
96-8, “Arrest Report”). McMorrow then directed Rodriguez
to activate the emergency lights in order to advise the Vehicle
that it was being pulled over. (56.1 at 5 ¶ 21). Rodriguez pulled
up behind the Vehicle and both she and McMorrow exited
the troop car for the approach. (Id. at 5 ¶ 23). McMorrow
approached the driver's side of the Vehicle and Rodriguez
approached the passenger's side. (Id. at 5 ¶ 24).
Plaintiff was the driver of the Vehicle when Defendants pulled
him over in the early morning hours of February 9, 2018.
(Id. at 12 ¶¶ 1-2). There were two passengers in the Vehicle,
Rodington McLean and another individual. (Id. at 12 ¶ 4).
McMorrow testified that he told Plaintiff he was being pulled
over for speeding and having a hard time staying in his
lane, and that he requested Plaintiff's driver's license and
registration. (McMorrow Tr. at 109:14-110:12). McMorrow
maintains that Plaintiff, instead of presenting his license,
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provided his entire wallet to McMorrow—which McMorrow
believed was an indication of a possible impairment—so
McMorrow handed the wallet back to Plaintiff, who thereafter
displayed his conditional license. (Id.; id. at 111:7-13).
McMorrow testified, and the arrest report indicates, that
during this interview McMorrow detected a “distinct odor
of an alcoholic beverage coming off of [Plaintiff's] breath”
as he “slurred” his words, and that Plaintiff's eyes were
“bloodshot, watery.” (McMorrow Tr. at 110:22-111:6; Arrest
Report). McMorrow testified that he then asked Plaintiff
where he was coming from and whether he consumed any
alcohol, and that Plaintiff told him that he had left a party
in Ossining and had consumed alcohol. (McMorrow Tr. at
112:7-21; Arrest Report). McMorrow testified that because
he suspected Plaintiff may have been intoxicated, he asked
Plaintiff to step out of the Vehicle and to perform several
standardized field sobriety tests (“SFSTs”). (McMorrow Tr. at
114:6-11, 114:20-11:1; Arrest Report). McMorrow testified,
and the arrest report indicates, that Plaintiff failed the SFSTs,
demonstrating multiple signs indicative of an individual
who was intoxicated. (McMorrow Tr. at 116:3-117:5; Arrest
Report). McMorrow testified that he then asked Plaintiff to
take a preliminary breathalyzer test, but Plaintiff refused. (Id.
at 117:6-11; Arrest Report). McMorrow then placed Plaintiff
under arrest. (56.1 at 7 ¶ 35).
*3 Plaintiff sharply disputes this version of events, testifying
that he was not speeding on February 9, 2018, and he does
not know why he was pulled over. (Doc. 96-2, “Pl. Tr.” at
127:4-20). 4 Plaintiff testified that McMorrow did not ask
him for his license and registration. (Id. at 129:5-18). Rather,
Plaintiff contends that when he was pulled over, McMorrow
exited “the driver's seat of the police vehicle” and then
pulled Plaintiff out of the car, while Plaintiff yelled “Why
are you taking me out of my car? Why are you violating my
rights? Why you keep harassing me? I feel threatened.” (Id. at
127:21-128:22). Plaintiff testified that McMorrow did not ask
him if he had been drinking, that he was not asked to perform
SFSTs, and that he was never asked to take a breathalyzer. (Id.
at 130:3-7, 133:16-23). Plaintiff maintains that he, McLean,
and the other passenger in the Vehicle were on their way
home after completing a job in Elmsford where they had been
decommissioning computers. (Id. at 105:10-106:14, 111:4-6,
114:14-21). He testified that he had not consumed any alcohol
that night and had not been to a party. (Id. at 126:12-18).
Rodriguez testified that after McMorrow asked Plaintiff to
step out of the Vehicle, she instructed McLean and the
other passenger to get out of the Vehicle and stand by
the roadside while she stood with them. (Rodriguez Tr. at
48:20-50:9). McLean, who was one of Plaintiff's passengers,
recalled the same series of events. (Doc. 96-9, “McLean
Tr.” at 10:16-11:8). McLean further testified that he and the
other passenger were situated a distance from Plaintiff and
McMorrow and that they were engaged in a conversation
with Rodriguez. (Id. at 11:9-14:3, 16:3-16). McLean testified
that he did not recall Plaintiff being dragged out of the
Vehicle, that Defendants did not assault Plaintiff, that he
thinks McMorrow asked Plaintiff to take a breathalyzer, and
that he could not recall if McMorrow administered SFSTs to
Plaintiff. (Id. at 13:4-10, 14:7-10 51:3-16, 58:11-13). McLean
testified that he did not tell Rodriguez that he had been
drinking that night and, though he did not hear Plaintiff
say that he had been drinking that night, Plaintiff “wasn't
really in earshot, so I couldn't even hear what he would have
told the officer.... I might have heard a little thing here and
there, but not enough to hear the whole conversation.” (Id.
at 11:16-12:19, 17:15-18:3). McLean testified that he did
not observe Plaintiff consume alcohol, but there were times
that night that McLean did not see Plaintiff although they
were together most of the time at the jobsite. (Id. at 78:5-12,
79:12-80:7).
It is undisputed that Defendants called for a tow truck which
arrived after an hour or so to take the Vehicle and passengers
from the scene, and Defendants transported Plaintiff to the
Cortlandt Barracks. (56.1 at 8 ¶¶ 38-39). Plaintiff's arrest
was processed and he was transported to Cortlandt Court for
arraignment. (Id. at 9, 10 ¶¶ 44, 49). On or about August 7,
2018, Plaintiff was indicted by a Grand Jury on charges of
aggravated unlicensed operation in the first degree, driving
while intoxicated, driving while impaired, and speeding.
(56.1 at 11 ¶ 54). Plaintiff's first criminal trial took place
in early 2019 and resulted in a hung jury. (Id. at 11 ¶ 55).
A second trial was held in mid-2019 which resulted in a
conviction for speeding, and Plaintiff was acquitted of all
other charges. (Id. at 11 ¶ 56; id. at 15 ¶ 16).
Defendants now move for summary judgment dismissing the
Complaint.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, a court
“shall grant summary judgment 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
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R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect
the outcome of the suit under the governing law,’ and is
genuinely in dispute ‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’ ”
Liverpool v. Davis, No. 17-CV-3875, 2020 WL 917294, at *4
(S.D.N.Y. Feb. 26, 2020) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). “ ‘Factual disputes that are
irrelevant or unnecessary’ are not material and thus cannot
preclude summary judgment.” Sood v. Rampersaud, No. 12-
CV-5486, 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013)
(quoting Anderson, 477 U.S. at 248). The Court's duty, when
determining whether summary judgment is appropriate, is
“not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Id. (quoting Wilson
v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed,
the Court's function is not to determine the truth or weigh
the evidence. The task is material issue spotting, not material
issue determining. Therefore, “where there is an absence of
sufficient proof as to one essential element of a claim, any
factual disputes with respect to other elements of the claim
are immaterial.” Bellotto v. Cty. of Orange, 248 Fed. App'x
232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467
F.3d 263, 281 (2d Cir. 2006)).
*4 “It is the movant's burden to show that no genuine factual
dispute exists.” Vermont Teddy Bear Co. v. 1-800 Beargram
Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970)). The Court must
“resolve all ambiguities and draw all reasonable inferences
in the non-movant's favor.” Id. (citing Giannullo v. City of
N.Y., 322 F.3d 139, 140 (2d Cir. 2003)). Once the movant
has met its burden, the non-movant “must come forward
with specific facts showing that there is a genuine issue for
trial.” Liverpool, 2020 WL 917294, at * 4 (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). The non-movant cannot defeat a summary judgment
motion by relying on “mere speculation or conjecture as to the
true nature of the facts.” Id. (quoting Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, if “there is any
evidence from which a reasonable inference could be drawn
in favor of the opposing party on the issue on which summary
judgment is sought, summary judgment is improper.” Sood,
2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir.
2004)).
Should there be no genuine issue of material fact, the movant
must also establish its entitlement to judgment as a matter of
law. See Glover v. Austin, 289 Fed. App'x 430, 431 (2d Cir.
2008) (“Summary judgment is appropriate if, but only if, there
are no genuine issues of material fact supporting an essential
element of the plaintiffs' claim for relief.”); Pimentel v. City of
New York, 74 Fed. App'x 146, 148 (2d Cir. 2003) (holding that
because plaintiff “failed to raise an issue of material fact with
respect to an essential element of her [ ] claim, the District
Court properly granted summary judgment dismissing that
claim”). Simply put, the movant must separately establish that
the law favors the judgment sought.
ANALYSIS
Plaintiff raises three claims for relief under 42 U.S.C. §
1983: (1) malicious prosecution, (2) denial of a fair trial,
and (3) failure to intervene. Plaintiff also asserts a malicious
prosecution claim under state law. The Court addresses each
of Plaintiff's claims in turn.
I. First Claim for Relief: Malicious Prosecution
To establish a § 1983 claim for malicious prosecution,
“a plaintiff must ... establish the elements of a malicious
prosecution claim under state law.” Frost v. New York City
Police Dep't, 980 F.3d 231, 242 (2d Cir. 2020) (quoting
Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d
Cir. 2010)). Under New York law, a plaintiff must allege: “(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. (internal quotation marks omitted). When pressing a
malicious prosecution claim under § 1983, the plaintiff must
show also “that there was (5) a sufficient post-arraignment
liberty restraint to implicate his Fourth Amendment rights.”
Rohman v. New York City Transit Auth., 215 F.3d 208, 215
(2d Cir. 2000). Recently, the United States Supreme Court
modified the “termination” element of malicious prosecution.
See Thompson v. Clark, 142 S. Ct. 1332, 1341 (2022) (holding
“that a Fourth Amendment claim under § 1983 for malicious
prosecution does not require the plaintiff to show that the
criminal prosecution ended with some affirmative indication
of innocence.”). Now the “termination” element requires only
that a plaintiff show “that the criminal prosecution ended
without a conviction.” Id. “[T]he existence of probable cause
is a complete defense to a claim of malicious prosecution in
New York.” Johnson v. City of New York, No. 18-CV-06256,
2020 WL 2732068, at *5 (S.D.N.Y. May 26, 2020) (internal
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quotation removed); Manganiello v. City of New York, 612
F.3d 149, 161 (2d Cir. 2010).
*5 “Once a suspect has been indicted [New York] law
holds that the Grand Jury action creates a presumption of
probable cause.” Jones v. City of New York, 846 F. App'x 22,
24 (2d Cir. 2021) (quoting Rothstein v. Carriere, 373 F.3d
275, 283 (2d Cir. 2004)); Colon v. City of New York, 455
N.E.2d 1248, 1250 (N.Y. 1983). “This presumption may be
rebutted by showing that the indictment ‘was produced by
fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith.’ ” Id. (quoting Rothstein,
373 F.3d at 283). Thus, in order for a plaintiff to succeed in a
malicious prosecution claim after indictment, a plaintiff must
“establish what occurred in the grand jury and ... that those
circumstances warrant a finding of misconduct sufficient to
erode the ‘premise that the Grand Jury acts judicially.’ ”
Rothstein, 373 F.3d at 284 (quoting Colon, 455 N.E.2d at
1250).
“[W]here a plaintiff's only evidence to rebut the presumption
of the indictment is his version of events, courts will find
such evidence to be nothing more than mere conjecture and
surmise that the plaintiff's indictment was procured as a result
of conduct undertaken by the defendants in bad faith, which
is insufficient to rebut the presumption of probable cause.”
Brandon v. City of New York, 705 F. Supp. 2d 261, 272-73
(S.D.N.Y. 2010) (cleaned up) (collecting cases); see also
Merrill v. Copeland, No. 19-CV-01240, 2022 WL 3212075,
at *16 (N.D.N.Y. Aug. 9, 2022) (plaintiff's failure to explain
how the proceedings before the grand jury were “tainted”
insufficient to rebut presumption of probable cause created
by grand jury indictment); Gutierrez v. New York, No. 18-
CV-03621, 2021 WL 681238, at *12 (E.D.N.Y. Feb. 22,
2021) (“Plaintiff has adduced no evidence from which a
reasonable juror could conclude that Defendants procured his
indictment through fraud, perjury, or other bad faith.”); Soto
v. City of New York, 132 F. Supp. 3d 424, 456 (E.D.N.Y.
2015) (presumption unrebutted where the “[p]laintiff merely
surmises there was bad faith ... [and] has neither sought nor
produced the grand jury minutes in this matter precluding any
further evaluation of what occurred before the grand jury”);
Peterson v. Regina, 935 F. Supp. 2d 628, 643 (S.D.N.Y. 2013)
(finding plaintiff's offer of his “suspicions of impropriety as
proof of the defendants' misconduct before the grand jury”
insufficient to rebut presumption). When a plaintiff has been
indicted by a grand jury, a failure to offer independent,
corroborating evidence by the plaintiff is fatal to a malicious
prosecution claim under § 1983.
Contrariwise, where a plaintiff's testimony is corroborated by
other evidence in the record, a court faced with competing
versions of events may not resolve probable cause at summary
judgment because there truly exists a genuine issue of
material fact and the plaintiff is entitled to a trial on
the merits. McClellan v. Smith, 439 F.3d 137, 146 (2d
Cir. 2006) (defendant police officer's several variations of
his version of events sufficient to rebut the presumption);
Boyd v. City of New York, 336 F.3d 72, 77 (2d Cir.
2003) (plaintiff's presentation of proof of impropriety—
a police booking sheet which indicated that the plaintiff
was arrested in a different location from that which the
officers alleged in their grand jury testimony—sufficient
to rebut presumption); Coleman v. Cnty. of Nassau, No.
16-CV-06099, 2021 WL 5447323, at *11 (E.D.N.Y. Nov.
22, 2021) (plaintiff's testimony corroborated by witness's
testimony and allocution exculpating plaintiff sufficient to
rebut presumption); Brandon, 705 F. Supp. 2d at 274 (two
officers' conflicting stories, with one supporting plaintiff's
version of events, sufficient to rebut presumption).
*6 There is no dispute that Plaintiff was indicted by a
grand jury on August 7, 2018 on charges of aggravated
unlicensed operation in the first degree, driving while
intoxicated, driving while impaired, and speeding. (56.1
at 11 ¶ 54). Accordingly, there is a presumption that
Plaintiff's prosecution was supported by probable cause for
each of those offenses. To rebut this presumption, Plaintiff,
therefore, must “establish what occurred in the grand jury”
and “establish that those circumstances warrant a finding
of misconduct sufficient to erode the ‘premise that the
Grand Jury acts judicially.’ ” Rothstein, 373 F.3d at 284
(quoting Colon, 455 N.E.2d at 1250). This, Plaintiff has
not done. Indeed, Plaintiff has not offered any evidence of
what occurred in the grand jury, let alone establish that
what occurred in the grand jury would warrant a finding of
misconduct.
Plaintiff, rather, argues only that his version of events of
the underlying arrest, which he contends is corroborated by
McLean's testimony, would permit a factfinder to infer that
Defendants lied to secure an indictment or misrepresented
or falsified evidence. Plaintiff has presented no such
corroborating testimony sufficient to create an issue of fact
on this malicious prosecution claim. The Court does not read
McLean's testimony to support Plaintiff's version of his arrest.
Indeed, McLean's answer “I don't remember” to virtually
all of the questions asked of him corroborates nothing. In
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addition and in particular circumstance, McLean's testimony
flatly contradicts Plaintiff's assertions that: (1) McMorrow
forcibly removed Plaintiff from the Vehicle (compare Pl. Tr.
at 127:21-129:18, with McLean Tr. at 51:3-16, 58:11-13); (2)
Plaintiff was not asked to take a breathalyzer (compare Pl. Tr.
at 130:3-7, 133:16-23, with McLean Tr. at 13:4-10); and (3)
Rodriguez stayed quiet through the encounter with her hand
on her weapon (compare Pl. Tr. at 130:8-16, with McLean Tr.
at 11:9-15, 13:9-17, 16:3-16, 57:17-22).
Further, McLean's testimony does not support the following
portions of Plaintiff's version of the arrest: (1) that Plaintiff
did not inform McMorrow or any other officer he had
been intoxicated (because according to McLean, “[Plaintiff]
wasn't really in earshot so [McLean] couldn't even hear what
[Plaintiff] would have told [McMorrow]” and McLean did not
accompany the Plaintiff to the barracks and has no knowledge
of what occurred there) (compare Pl. Tr. at 126:12-18,
with McLean Tr. at 14:11-16, 17:15-18:3, 62:8-17); (2) that
Plaintiff was not speeding on February 9, 2018 (because
McLean testified that he did not look at the speedometer)
(compare Pl. Tr. at 127:4-20, with McLean Tr. at 45:20-46:8);
and (3) that Plaintiff was not asked to perform SFSTs (because
McLean could not recall if McMorrow administered SFSTs
to Plaintiff) (compare Pl. Tr. at 130:3-5, with McLean Tr. at
14:7-10).
Simply put, Plaintiff has not offered anything more than
his own version of events without corroboration. Plaintiff's
conjecture that his version of events alone would permit
a fact-finder to infer that Defendants lied to secure
an indictment or misrepresented or falsified evidence is
insufficient, as a matter of fact and law, to rebut the
presumption of probable cause to prosecute in this case. The
first claim for relief for malicious prosecution under § 1983
is dismissed.
Plaintiff's third claim for relief for malicious prosecution
under state law likewise fails for the same reason as his
malicious prosecution claim under § 1983. See Frost, 980
F.3d at 242 (to establish malicious prosecution under §
1983 a plaintiff must establish the elements of a malicious
prosecution claim under state law); Jones, 846 F. App'x at 24
(grand jury indictment creates presumption of probable cause
under New York law); Rothstein, 373 F.3d at 283 (same);
Colon, 455 N.E.2d at 1250 (same). Accordingly, Defendants
are entitled to summary judgment dismissing Plaintiff's first
and third claims for relief.
II. Second Claim for Relief: Denial of Fair Trial
*7 “The Due Process Clause guarantees a criminal
defendant's right to a fair trial.” Frost, 980 F.3d at 244
(internal quotation marks omitted). “This right is violated
‘[w]hen a police officer creates false information likely to
influence a jury's decision and forwards that information to
prosecutors.’ ” Id. (quoting Ricciuti v. N.Y.C. Transit Auth.,
124 F.3d 123, 130 (2d Cir. 1997)). To establish a fair trial
claim based on fabrication of evidence, a plaintiff must show
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.” Ganek v.
Leibowitz, 874 F.3d 73, 90 (2d Cir. 2017) (quoting Garnett v.
Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016)).
“[U]nlike a malicious prosecution claim, ‘a Section 1983
claim for the denial of a right to a fair trial based on an officer's
provision of false information to prosecutors can stand even
if the officer had probable cause to arrest the Section 1983
plaintiff.’ ” Frost, 980 F.3d at 244 (quoting Garnett, 838 F.3d
at 277-78)).
Plaintiff alleged in the Complaint that McMorrow fabricated
the following: (1) Plaintiff's breath smelled of alcohol; (2)
Plaintiff stated he was driving home from a party; (3)
Plaintiff's eyes appeared “glassy,” his speech was slurred, and
he had difficulty with “fine motor coordination;” (4) Plaintiff
swerved from lane to lane while Rodriguez and McMorrow
followed him; and (5) McMorrow administered three field
sobriety tests to Plaintiff at the scene and that Plaintiff failed
all three. (Compl. ¶ 62). Plaintiff contends that the falsified
evidence consists of Defendants' incident report, their claimed
observations of Plaintiff, and their statements repeating what
Plaintiff allegedly said during the arrest. (Opp. Br. at 23).
While “ ‘a § 1983 plaintiff's testimony alone may be
independently sufficient to raise a genuine issue of material
fact,’ ” McKenzie v. City of New York, No. 17-CV-04899,
2019 WL 3288267, at *16 (S.D.N.Y. July 22, 2019) (quoting
Bellamy v. City of New York, 914 F.3d 727, 746 (2d Cir.
2019)), summary judgment is appropriate where a plaintiff
has failed to “present[ ] evidence indicating that an officer
falsified information or fabricated evidence.” Bennet v. Vidal,
267 F. Supp. 3d 487, 499 (S.D.N.Y. 2017). As evidence of
fabrication, Plaintiff points only to the fact that his version
of events—in which he alleges that McMorrow did not ask
him if he had been drinking, that he was not asked to perform
SFSTs, that he was never asked to take a breathalyzer, that he
had not consumed any alcohol that night and had not been to
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a party—differs from the account Defendants provided to the
prosecutor, and that his version is corroborated by McLean's
testimony. As discussed supra, McLean's testimony does not
support Plaintiff's version of events and corroborates nothing.
“[A] mere difference in the testimony of the plaintiff and the
officers about what occurred on the day of the arrest is not
sufficient evidence to create a genuine dispute of material fact
as to whether [Defendants] intentionally falsified information
or fabricated evidence.” Lauderdale v. City of New York, No.
15-CV-01486, 2018 WL 1413066, at *8 (S.D.N.Y. Mar. 19,
2018); see also Gutierrez v. New York, No. 18-CV-03621,
2021 WL 681238, at *18 (E.D.N.Y. Feb. 22, 2021) (granting
summary judgment on a denial of the right to a fair trial
claim because plaintiff “offered no evidence in support of
his claims that the evidence was planted”); Isaac v. City
of New York, No. 16-CV-04729, 2020 WL 1694300, at *9
(E.D.N.Y. Apr. 6, 2020) (“Plaintiff claims that the testimony
of four witnesses and [the] defendant ... was false, but offers
no evidence in support, other than his own testimony.”);
Bennett, 267 F. Supp. 3d at 498 (granting summary judgment
dismissing right to a fair trial claim in the absence of evidence
of deliberate misidentification); Greene v. City of New York,
No. 08-CV-00243, 2017 WL 1030707, at *25 (E.D.N.Y. Mar.
15, 2017) (granting summary judgment on a fair trial claim
because the contention that officers falsified evidence was
based on “sheer speculation, and [did] not create a material
issue of fact for trial”), aff'd, 742 F. App'x 532 (2d Cir. 2018).
*8 Plaintiff has not presented evidence, other than his
own testimony, that Defendants falsified information or
fabricated evidence sufficient to defeat a motion for summary
judgment. Accordingly, the Court grants Defendants' motion
for summary judgment as to Plaintiff's fabrication of evidence
claim.
III. Fourth Claim for Relief: Failure to Intervene
“A law enforcement officer has an affirmative duty to
intercede on the behalf of a citizen whose constitutional rights
are being violated in his presence by other officers.” O'Neill v.
Krzeminski, 839 F.2d 9, 11 (2d Cir.1988). Because the Court
has already ruled, however, that Plaintiff has failed to raise a
genuine issue of material fact that his “constitutional rights”
were “violated” by any officers under any theory, summary
judgment must be granted as to this claim as well. Hewitt v.
City of New York, No. 09-CV-00214, 2012 WL 4503277, at
*10 (E.D.N.Y. Sept. 28, 2012), aff'd, 544 F. App'x 24 (2d Cir.
2013).
CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment is GRANTED and the Complaint is dismissed. 5
The Clerk of Court is respectfully requested to terminate the
motion sequence pending at Doc. 94 and close this case.
All Citations
Not Reported in Fed. Supp., 2023 WL 1797063
Footnotes
1 Plaintiff also proceeds against “John Does ## 1-10.” (See generally Compl.). There is no indication that
these individuals have been identified or served, but they remain parties to this action. Any claims against
these unknown actors must, at this juncture, be—and are hereby—dismissed without prejudice for failure to
prosecute. “Where discovery has closed and the Plaintiff has had ample time and opportunity to identify and
serve John Doe Defendants, it is appropriate to dismiss those Defendants without prejudice.” Delrosario v.
City of New York, No. 07-CV-02027, 2010 WL 882990, at *5 (S.D.N.Y. Mar. 4, 2010); see also Vanderwoude
v. City of New York, No. 12-CV-09046, 2014 WL 2592457, at *8 (S.D.N.Y. June 10, 2014) (“Discovery in
this case has now closed, and the record does not reflect any attempts by Plaintiff to identify and/or serve
this defendant. Indeed, neither party has mentioned this defendant in the summary judgment briefing. Based
on this record, the Court sua sponte dismisses Plaintiff's claims against Defendant Police Officer Jane Doe
Number 1 without prejudice for failure to prosecute.”).
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2 The Court, on November 18, 2021, issued an order dismissing the fifth and sixth claims for relief alleging
abuse of process and intentional infliction of emotional distress (Doc. 85), in light of Plaintiff's withdrawal of
those claims (Doc. 82).
3 The parties filed three versions of a Rule 56.1 Statement with responses for the Court's consideration on
this motion (Doc. 86-1, Doc. 96, Doc. 102). The version submitted with Plaintiff's opposition appears to add
responses to two proposed facts where previously it was indicated that “Plaintiff failed to respond to this
proposed fact” (compare Doc. 96 ¶¶ 9, 10, with Doc. 102 ¶¶ 9, 10), and is otherwise substantively identical to
the version submitted on Defendants' motion. Because Defendant's version annexes the evidence to which
the parties cite, the Court references herein the version filed with Defendant's motion on March 2, 2022
unless otherwise indicated. Because Plaintiff set forth his own statement of material facts in the Rule 56.1
Statement without continuing the numbering of each paragraph from the prior section, when citing to the Rule
56.1 Statement, the Court refers to page numbers in addition to paragraphs to avoid confusion.
4 The Court notes that Plaintiff's opposition brief contradicts this testimony, taking the position that Plaintiff
was, in fact, driving over the speed limit. (Opp. Br. at 6 (“At the time Johnson was pulled over, he was driving
over the speed limit.”)). Plaintiff was ultimately convicted of speeding. (56.1 at 11 ¶ 56).
5 The Court need not and will not, given this disposition, consider Defendants' argument that they are entitled
to qualified immunity.
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Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020)
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KeyCite Yellow Flag
Declined to Extend by Broadwater v. County of Onondaga, N.D.N.Y.,
March 11, 2024
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
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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
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
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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).
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
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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
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
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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
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.
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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
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.
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2. Malice
Plaintiff's complaint is also devoid of any facts supporting
an inference that the prosecution was instituted with malice.
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
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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
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
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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
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
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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. 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
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complaint describe negligence on the part of the correctional
staff, which is insufficient to support a claim of deliberate
indifference. See id. at 36.
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
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with a hypothetical set of facts that could have been pled that would render the claims plausible. Iqbal and
Twombly, however, place no such burden on the Court. Rather, it is incumbent on the plaintiff to set forth the
necessary facts specific to his or her case to render the asserted claims plausible.
4 As a result of this Memorandum-Decision and Order, the only remaining claim is Plaintiff's false arrest claim
against Defendant Spinelli.
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McNair v. Utica Police Department, Not Reported in Fed. Supp. (2023)
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2023 WL 4935993
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Brandon T. MCNAIR, Plaintiff,
v.
UTICA POLICE DEPARTMENT, et al., Defendants.
6:23-CV-699 (DNH/ATB)
|
Signed June 26, 2023
Attorneys and Law Firms
BRANDON T. McNAIR, Plaintiff, pro se.
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk has sent to the court for review a pro se
complaint filed by plaintiff Brandon T. McNair, in which
he has sued various defendants based on several civil rights
claims pursuant to 42 U.S.C. § 1983. (Dkt. No. 1) (“Compl.”).
Plaintiff has also moved to proceed in forma pauperis (“IFP”).
(Dkt. No. 2).
I. IFP Application
Plaintiff declares in his IFP application that he is unable to pay
the filing fee. (Dkt. No. 2). After reviewing his application
and supporting documents, this court finds that plaintiff is
financially eligible for IFP status.
However, 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), abrogated on other grounds by Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915.
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. Eldredge,
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 E. 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, 678 (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).
In addition, Fed. R. Civ. P. 8(a)(2) requires that a pleading
contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Although Rule 8 does
not require detailed factual allegations, it does “demand[ ]
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Houston v. Collerman, No. 9:16-CV-1009
(BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26,
2016) (quoting Ashcroft, 556 U.S. at 678). A pleading that
contains allegations that “ ‘are so vague as to fail to give
the defendants adequate notice of the claims against them’
is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 F.
App'x 102, 104 (2d Cir. 2009)). The court will now turn
to a consideration of plaintiff's complaint under the above
standards.
II. Complaint
*2 Plaintiff alleges that on July 27, 2021 at approximately
10:00 a.m., he was on the “east side” of Utica, New York
when the “cops hopped out [and] detained [him and] tried to
search [him.]” (Compl. at 4). He further alleges that, based off
a general description, the police searched plaintiff because he
was “black in a certain area where a man with a gun had been
alleged to be there.” (Id.). Plaintiff was arrested after “running
for [his] life in an attempt to keep [the police] from violating
[his] rights.” (Id.). Plaintiff was “thrown in jail” and charged
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with “possession of an instrument that was found almost an
hour after, under some car in the parking lot of a car shop.” (Id.
at 7).
Plaintiff then states that he appeared at a bail hearing in
Oneida County Court, with the defendants District Attorney
(“DA”) McNamara and Judge Michael L. Dwyer. (Compl.
at 7). Plaintiff alleges that when Judge Dwyer learned of
plaintiff's intention to post bail, he “then raised it in a clear
attempt to make it unreachable post bail reform[.]” (Id.).
Plaintiff states that he was “denied audience with the Supreme
Court and [his] habeas corpus was illegally unheard,” having
been put “right back in front of [Judge] Dwyer for him
to answer[.]” (Id.). Plaintiff claims that this is “not how
the process works,” and that Judge Dwyer “didn't have the
authority to answer [his] habeas corpus.” (Id.).
Plaintiff further alleges that Judge Dwyer and DA McNamara
proceeded to “violate [his] rights in every court proceeding
leading up to trial.” (Compl. at 7). Plaintiff cites to a decision
from the Fourth Department relative to his criminal case
for the underlying facts surrounding his claims. According
to Matter of McNair v. McNamara, plaintiff's jury trial
commenced on November 1, 2021, at which time a jury was
selected and sworn, and three witnesses testified. 206 A.D. 3d
1689, 1690 (4th Dep't 2022). November 2 nd was a holiday,
during which the trial was recessed. (Id.). On November 3 rd ,
Judge Dwyer's secretary notified plaintiff's counsel that the
Judge had a cold, wanted to make sure it was not COVID-19,
he would not be in that day, and the jury would be sent home.
(Id.). Plaintiff's counsel was notified several days later that
the matter would be scheduled for a retrial on November
15 th . (Id.). Essentially, the Judge believed a mistrial was
necessary because it was “physically impossible” for him to
come to court and proceed with the trial, while he waited
three to five days for the result of his COVID-19 test.
(Id.). Over plaintiff's counsel's objections, the mistrial was
declared as of November 3 rd . (Id.). The Fourth Department
ultimately agreed with plaintiff in concluding that there was
no “manifest necessity” for the mistrial, and that the county
court abused its discretion in granting the mistrial sua sponte.
(Id. at 1690-92). Accordingly, the government was prohibited
from retrying plaintiff on the underlying indictment based
on double jeopardy grounds. Liberally construed, this court
interprets plaintiff's claims of constitutional violations in the
instant complaint to relate to the underlying trial proceedings
as described in Matter of McNair. Plaintiff also alleges that
the police were “selective [and] omitted certain facts to
allow the proceedings to continue,” and that DA McNamara
“also did not reveal certain facts in order to secure an
indictment.” (Compl. at 7).
Plaintiff alleges damages including mental and physical
injuries sustained during his incarceration. (Compl. at 5). He
seeks monetary damages in the amount of twenty million
dollars, as well as “punitive damages of relieving the officials
of their official capacities.” (Id.).
DISCUSSION
III. Sovereign and Judicial Immunities
*3 The complaint must be dismissed as against named
defendants Oneida County Courts and Officials and Judge
Dwyer, because they are immune from suit. The Second
Circuit has ruled that “the New York State Unified Court
System is unquestionably an arm of the State, and is entitled
to Eleventh Amendment sovereign immunity.” Gollomp v.
Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). Because the Oneida
County Court is a part of the New York State Unified Court
System, it is entitled to sovereign immunity. Similarly, judges
within the New York State Unified Court System are entitled
to Eleventh Amendment immunity to the extent they are sued
in their official capacity. See Aron v. Becker, 48 F. Supp.
3d 347, 366 (N.D.N.Y. 2014) (dismissing claim against a
Delaware County judge on sovereign immunity grounds). As
both the Oneida County Court and Judge Dwyer are arms of
the State, they are entitled to Eleventh Amendment immunity,
and it is recommended that the complaint against them be
dismissed with prejudice.
The complaint against Judge Dwyer in his personal capacity
is subject to dismissal on judicial immunity grounds. See,
e.g., Washington v. Ciccone, No. 3:21-CV-0564 (MAD/ML),
2021 WL 2935950, at *4 (N.D.N.Y. July 13, 2021) (Judicial
immunity “shields judges from suit to the extent they are sued
in their individual capacities[.]”), report and recommendation
adopted, 2021 WL 4859663 (N.D.N.Y. Oct. 19, 2021). It is
well settled that judges have absolutely immunity for their
judicial acts performed in their judicial capacities. See Mireles
v. Waco, 502 U.S. 9, 11 (1991); Forrester v. White, 484 U.S.
219, 225 (1988); Shtrauch v. Dowd, 651 F. App'x 72, 73-74
(2d Cir. 2016) (“Generally, ‘acts arising out of, or related
to, individual cases before the judge are considered judicial
in nature’ ”) (quoting Bliven v. Hunt, 579 F.3d 204, 210
(2d Cir. 2009)); Kim v. Saccento, No. 21-2865, 2022 WL
9583756, at *2 (2d Cir. Oct. 17, 2022), cert. denied, No.
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22-732, 2023 WL 2959393 (U.S. Apr. 17, 2023) (“the actions
that [plaintiff] complains of – adverse decisions in a criminal
proceeding – are plainly judicial in nature”); Root v. Liston,
444 F.3d 127, 132 (2d Cir. 2006) (judges who set bail enjoy
absolute immunity) (collecting cases). “Judicial immunity
applies even when the judge is accused of acting maliciously
or corruptly.” Coon v. Merola, No. 1:19-CV-394 (DNH/ATB),
2019 WL 1981416, at *3 (N.D.N.Y. Apr. 8, 2019) (citing
Imbler v. Pachtman, 424 U.S. 409, 419 n.12 (1976)), report
and recommendation adopted, 2019 WL 1978595 (N.D.N.Y.
May 3, 2019).
“The only two circumstances in which judicial immunity
does not apply is when he or she takes action ‘outside’ his
or her judicial capacity and when the judge takes action
that, although judicial in nature, is taken ‘in absence of
jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12).
Here, plaintiff has failed to plausibly allege that Judge Dwyer
was acting outside of his judicial capacity or in the absence
of jurisdiction. To the extent that plaintiff alleges that his
habeas corpus petition was not properly before Judge Dwyer,
Article 70 of the New York Civil Practice Law and Rules
specifically authorizes a petition for the writ to be made
to a county judge being or residing within the county in
which the petitioner is detained. N.Y. C.P.L.R. § 7002(b)(4).
In the absence of any other allegation suggesting that the
general rule regarding judicial immunity can be overcome, the
court recommends dismissing with prejudice the complaint
as against Judge Dwyer in his individual capacity. See
Edwardsen v. Aloi, No. 5:17-CV-00202 (LEK/TWD), 2017
WL 1283496, at *3 (N.D.N.Y. Mar. 3, 2017) (recommending
dismissal with prejudice on judicial immunity grounds),
report and recommendation adopted, 2017 WL 1283763
(N.D.N.Y. Apr. 5, 2017).
Plaintiff has also included unidentified “officials” of the
Oneida County Court as defendants in the caption of his
complaint. There is, however, no specific allegation anywhere
in the complaint referencing any other court official who was
involved in the alleged violations of plaintiff's constitutional
rights. In any event, even if plaintiff had identified another
court “official” as a defendant, judicial immunity has been
extended to “ ‘certain others who perform functions closely
associated with the judicial process.’ ” Marshall v. New York
State Pub. High Sch. Athletic Ass'n, Inc., 374 F. Supp. 3d
276, 288 (W.D.N.Y. 2019) (quoting inter alia Cleavinger v.
Saxner, 474 U.S. 193, 200 (1985)). Quasi-judicial immunity
is absolute if the official's role “is ‘functionally comparable’
to that of a judge.” Butz v. Economou, 438 U.S. 478,
513 (1978); see Cleavinger, 474 U.S. at 201 (“Absolute
immunity flows not from rank or title or location within
the Government, but from the nature of the responsibilities
of the individual official.” (internal quotation marks and
citation omitted)); Gross v. Rell, 585 F.3d 72, 81 (2d
Cir. 2009) (“Judicial and quasi-judicial immunity are both
absolute immunities.” (citations omitted)). Much like judicial
immunity, “[a] defendant entitled to quasi-judicial immunity
loses that privilege only if [he or] she acts in the clear absence
of all jurisdiction.” Finn v. Anderson, 592 F. App'x 16, 19
(2d Cir. 2014) (internal quotation marks and citation omitted).
Thus, it is likely that the unidentified court official defendants
would also be protected from suit based on the doctrine of
quasi-judicial immunity.
IV. Prosecutorial Immunity
*4 The complaint is also subject to dismissal as against
DA McNamara. The doctrine of absolute immunity applies
broadly to shield a prosecutor from liability for money
damages (but not injunctive relief) in a § 1983 lawsuit, even
when the result may be that a wronged plaintiff is left without
an immediate remedy.” Anilao v. Spota, 27 F.4th 855, 863-64
(2d Cir. 2022) (citing Imbler v. Pachtman, 424 U.S. 409, 427
(1976)). In Anilao, the Second Circuit explained:
Our cases make clear that prosecutors enjoy “absolute
immunity from § 1983 liability for those prosecutorial
activities intimately associated with the judicial phase of
the criminal process.” Barr v. Abrams, 810 F.2d 358, 361
(2d Cir. 1987)(quotation marks omitted). The immunity
covers “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)).
For example, a prosecutor enjoys absolute immunity
when determining which offenses to charge, initiating a
prosecution, presenting a case to a grand jury, and preparing
for trial. See id.; Imbler, 424 U.S. at 431, 96 S. Ct. 984
(concluding that a prosecutor is absolutely immune from
a § 1983 suit for damages based on his “initiating a
prosecution and ... presenting the State's case”). For that
reason, we have held that absolute immunity extends even
to a prosecutor who “conspir[es] 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 the immunity attaches to
his function, not to the manner in which he performed it.”
Dory, 25 F.3d at 83 (cleaned up).
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Id. at 864. See also Pinaud v. County of Suffolk, 52 F.3d
1139, 1149 (2d Cir. 1995) (holding that absolute prosecutorial
immunity protects a prosecutor for advocacy in connection
with a bail application).
“By contrast, prosecutors receive only qualified immunity
when performing ‘administrative duties and those
investigatory functions that do not relate to an advocate's
preparation for the initiation of a prosecution or for judicial
proceedings.’ ” Simon v. City of New York, 727 F.3d 167,
172 (2d Cir. 2013) (quoting Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993)). “Investigation, arrest, and detention
have historically and by precedent been regarded as the
work of police, not prosecutors, and they do not become
prosecutorial functions merely because a prosecutor has
chosen to participate.” Id. (interior quotation marks and
citations omitted); see Giraldo v. Kessler, 694 F.3d 161,
166 (2d Cir. 2012) (“ ‘[A]ctions taken as an investigator
enjoy only qualified immunity.’ ”) (quoting Zahrey v. Coffey,
221 F.3d 342, 346 (2d Cir. 2000)). “Under a functional
approach, actions are not shielded by absolute immunity
merely because they are performed by a prosecutor. ‘A
prosecutor's administrative duties and those investigatory
functions that do not relate to an advocate's preparation for
the initiation of a prosecution or for judicial proceedings are
not entitled to absolute immunity.’ ” Giraldo, 694 F.3d at 166
(quoting Buckley, 509 U.S. at 273).
Liberally construed, in this case plaintiff alleges that DA
McNamara violated his rights by “hold[ing] plaintiff in an
attempt to retry [him] illegally for 7 months” after the mistrial
(Compl. at 7), and for failing to “reveal certain facts in order
to secure an indictment” (id.). Otherwise, plaintiff generally
alleges that DA McNamara violated his rights “in every
court proceeding leading up to trial[,] “in the trial [and]
after the first trial[.]” (Id.). With respect to the indictment,
the courts have long held that a prosecutor's determination
to bring charges against an individual by presentment of a
case to the grand jury is an act by an advocate intimately
related to the judicial phase of the criminal process to
which absolute prosecutorial immunity applies. See Bernard
v. County of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004)
(The act of “knowingly presenting false evidence to, while
at the same time withholding exculpatory evidence from
[the grand jury] ... lie[s] at the very core of a prosecutor's
role as an advocate engaged in the judicial phase of the
criminal process.”) (citing Imbler, 424 U.S. at 431 & n.
34); Pinaud v. County of Suffolk, 52 F.3d at 1149 (holding
district attorneys absolutely immune from claim for malicious
prosecution and presentation of false evidence to the grand
jury); Maglione v. Briggs, 748 F.2d 116, 118 (2d Cir. 1984)
(“The presentation of a case to a grand jury falls squarely
within the prosecutor's traditional function and is thus subject
to absolute immunity....”); J. & W. Trading & Leasing Inc. v.
New York, No. 5:15-CV-327 (GLS/DEP), 2015 WL 4135961,
at *3 (N.D.N.Y. 2015) (granting absolute immunity where
prosecutor allegedly presented false testimony before grand
jury). Accordingly, plaintiff may not pursue his § 1983 action
against DA McNamara based on his alleged failure to disclose
evidence to the grand jury.
*5 The court concludes that DA McNamara is also immune
from any suit by plaintiff based on his efforts to continue
the prosecution of plaintiff's criminal case, although there
is certainly less case law involving this scenario. Bearing
in mind the standard of determining whether the specific
conduct at issue is ‘intimately associated with the judicial
phase of the criminal process,’ the court cannot conclude
that DA McNamara's efforts to retry plaintiff's case after
Judge Dwyer granted a mistrial runs afoul of the prosecutor's
protected function of initiating a prosecution and presenting
the State's case. See, e.g., Davis v. State of N.Y., No. 90
Civ. 6170, 1991 WL 156351, at *6 (S.D.N.Y. Aug. 6, 1991)
(whatever the defendant prosecutors may have done to delay
plaintiff's criminal retrial, “they acted in their capacity as
advocates in the state's prosecution ... [and] are entitled to
absolute immunity ....”), aff'd sub nom. Davis v. New York,
106 F. App'x 82 (2d Cir. 2004); Russo v. Vermont, No. 1:10-
CV-296, 2011 WL 4537956, at *6, 8 (D. Vt. July 29, 2011)
(notwithstanding the plaintiff's claim that the prosecutors in
his case were “obsessed and won't let go[,]” their decision
“to proceed with a retrial ... is protected by prosecutorial
immunity”), report and recommendation adopted, 2011 WL
4566303 (D. Vt. Sept. 29, 2011).
There is no evidence that DA McNamara's conduct in this
regard fell outside the scope of his function as an advocate.
See Anilao, 27 F.4th at 865 (“ ‘[A]bsolute immunity must be
denied’ only where there is both the absence of all authority
(because, for example, no statute authorizes the prosecutor's
conduct) and the absence of any doubt that the challenged
action falls well outside the scope of prosecutorial authority....
Prosecutors thus have absolute immunity in a § 1983 action ...
so long as ‘they have at least a semblance of jurisdiction’
that does not run far afield of their job description.’ ”)
(citations omitted). In particular, there is no suggestion that
DA McNamara's conduct in this respect could be interpreted
as an “investigative or administrative task[ ]”, for which the
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prosecutor would only be eligible for qualified immunity. Van
de Kamp v. Goldstein, 555 U.S. 335, 342 (2009) (quoting
Imbler, 424 U.S. at 431 n.33); see also McDonough v. Smith,
No. 1:15-CV-1505 (MAD/DJS), 2022 WL 3279348, at *17
(N.D.N.Y. Aug. 11, 2022) (“Investigative tasks beyond the
scope of absolute immunity are those ‘normally performed
by a detective or police officer.’ ”) (quoting Buckley, 509
U.S. at 273); Moye v. City of New York, 11 Civ. 316,
2012 WL 2569085, at *6 (S.D.N.Y. July 3, 2012) (“[T]he
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.”) (quoting Smith
v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998)). Accordingly,
the complaint should be dismissed as against DA McNamara
based on his absolute prosecutorial immunity.
V. Defendant Utica 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 police department does not have
the capacity to be sued as an entity separate from the
municipality in which it is located.” White v. Syracuse Police
Dep't, No. 5:18-CV-1471(GTS/DEP), 2019 WL 981850, at
*1 (N.D.N.Y. Jan. 7, 2019), report and recommendation
adopted, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (citing
Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 247
(N.D.N.Y. 2008)); see also Turczyn ex rel. McGregor v. City
of Utica, No. 13-CV-1357 (GLS/ATB), 2014 WL 6685476, at
*2 (N.D.N.Y. Nov. 26, 2014). Accordingly, the complaint as
against defendant Utica Police Department must be dismissed
for failure to state a claim upon which relief may be granted.
Even if the court were to construe plaintiff's claims against
the Utica Police Department as against the City of Utica,
dismissal would still be warranted. A municipality may only
be named as a defendant in certain circumstances. Pursuant
to the standard for establishing municipal liability laid out in
Monell, in order to set forth a cognizable claim for municipal
liability under Section 1983, a plaintiff must plead and prove
that a deprivation of his constitutional rights “was 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)
(citing Monell, 436 U.S. 658); see also Vippolis v. Vill. of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“The plaintiff
must first prove the existence of a municipal policy or
custom in order to show that the municipality took some
action that caused his injuries beyond merely employing the
misbehaving officer.”).
*6 A municipality may be liable for deprivation of
constitutional rights under Section 1983 for policies or
customs resulting in inadequate training, supervision, or
hiring when the failure to train, supervise, or hire amounts
to deliberate indifference to the rights of those with whom
municipal employees will come into contact. See City of
Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989).
A plaintiff must also establish a causal connection - an
affirmative link - between the policy and the deprivation
of his constitutional rights. Oklahoma v. Tuttle, 471 U.S.
808, 823 (1985). Indeed, municipalities may only be held
liable when the municipality itself deprives an individual of
a constitutional right; it “may not be held liable on a theory
of respondeat superior.” Jeffes v. Barnes, 208 F.3d 49, 56 (2d
Cir. 2000).
“[A] prerequisite to municipal liability under Monell is an
underlying constitutional violation by a state actor.” Henry-
Lee v. City of New York, 746 F. Supp. 2d 546, 567 (S.D.N.Y.
2010). As the Second Circuit has noted, “Monell does not
provide a separate cause of action for the failure by the
government to train its employees; it extends liability to a
municipal organization where that organization's failure to
train, or the policies or customs that it has sanctioned, led
to an independent constitutional violation.” Segal v. City
of New York, 459 F.3d 207, 219 (2d Cir. 2006); see also
id. (noting that once a “district court properly [finds] no
underlying constitutional violation, its decision not to address
the municipal defendants’ liability under Monell [is] entirely
correct”).
In this case, plaintiff has (1) not identified any of the
Utica police officers who allegedly violated his constitutional
rights as defendants in this action, and (2) has offered no
evidence that any such officer was acting pursuant to a policy
or custom of the City when they detained and/or arrested
plaintiff, or throughout the course of plaintiff's criminal
proceeding. Accordingly, the City cannot be held liable for
plaintiff's allegations of false arrest/imprisonment, malicious
prosecution or unspecified due process violations, as stated in
the complaint.
VI. Eighth Amendment Cruel and Unusual Punishment
Plaintiff has alleged an Eighth Amendment claim of cruel
and unusual punishment. (Compl. at 7-8). Plaintiff does
not specify against whom he alleges this violation of his
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constitutional rights. (Id.). In any event, these protections of
the Eighth Amendment “only apply to a person who has been
criminally convicted and sentenced; they do not apply to the
conduct of police officers in connection with the investigation
and arrest of suspects prior to conviction and sentencing.”
Spicer v. Burden, 564 F. Supp. 3d 22, 31 (D. Conn. 2021)
(citing Whitley v. Albers, 475 U.S. 312, 318-19 (1986)); City
of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
Accordingly, any claim purportedly brought by plaintiff under
the Eighth Amendment for cruel and unusual punishment
must be dismissed.
VII. Opportunity to Amend
Generally, before the court dismisses a pro se complaint or
any part of the complaint sua sponte, the court should afford
the plaintiff the opportunity to amend at least once; however,
leave to re-plead may be denied where any amendment would
be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131
(2d Cir. 1993). Futility is present when the problem with
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) (citation omitted).
Here, the court is recommending dismissal with prejudice
as to defendant Utica Police Department, because the
department may not be sued under § 1983. The court is further
recommending dismissal with prejudice as to defendants
Judge Dwyer, the Oneida County Courts and Officials, and
DA McNamara, based on their absolute immunity from suit.
*7 Notwithstanding my recommendation that each of the
named defendants be dismissed with prejudice, the court
cannot say at this early stage of the litigation that plaintiff
would be unable to amend his complaint to state a viable
claim. Thus, the court recommends providing plaintiff the
opportunity to amend his complaint for the limited purpose
of asserting those claims alleging constitutional violations
surrounding his detention, arrest, and subsequent criminal
prosecution as set forth in his complaint, against the
appropriate defendants. Plaintiff is reminded that if he intends
to name the City of Utica as a defendant, he must plead,
and ultimately prove, that a deprivation of his constitutional
rights was caused by a custom, policy, or usage of the
municipality. Likewise, plaintiff must specifically identify
any individual law enforcement officer he is alleging violated
his constitutional rights. If plaintiff chooses to amend his
complaint, he must also specifically set forth the personal
involvement of each named defendant relative to the conduct
alleged to have violated his constitutional rights.
If the court approves this recommendation and allows plaintiff
to submit a proposed amended complaint, plaintiff should be
warned that any amended complaint must be a complete and
separate pleading. Plaintiff must state all of his claims in the
new pleading and may not incorporate by reference any part
of his original complaint.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No.
2) is GRANTED, 1 and it is
RECOMMENDED, that this action be DISMISSED
WITH PREJUDICE as against named defendants
UTICA POLICE DEPARTMENT, JUDGE MICHAEL L.
DWYER, ONEIDA COUNTY COURTS a/k/a/ ONEIDA
COUNTY COURTS AND OFFICIALS, and DISTRICT
ATTORNEY SCOTT McNAMARA, and it is
RECOMMENDED, that plaintiff's complaint otherwise be
DISMISSED WITHOUT PREJUDICE, and that, if the
District Court adopts this recommendation, plaintiff be given
forty-five (45) days to amend his complaint to the extent
authorized, and that plaintiff be advised that any amended
pleading must be a COMPLETE PLEADING, WHICH
WILL SUPERSEDE THE ORIGINAL, and that plaintiff
must include all remaining facts and causes of action in the
amended complaint. No facts or claims from the original
complaint may be incorporated by reference, and it is
RECOMMENDED, that if the District Court adopts this
recommendation, and plaintiff does not elect to amend his
complaint within the imposed deadline, the case be dismissed
in its entirety, with prejudice, and it is
RECOMMENDED, that if the District Court adopts this
recommendation, and plaintiff files a proposed amended
complaint, the proposed amended complaint be returned to
me for review of the amended complaint and any orders
relating to service on the defendants, and it is
ORDERED, that the Clerk of the Court serve a copy of this
Order and Report-Recommendation on plaintiff by regular
mail.
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
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McNair v. Utica Police Department, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
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'y of Health
and Hum. 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., 2023 WL 4935993
Footnotes
1 Although his IFP Application has been granted, plaintiff will still be required to pay fees that he may incur in
this action, including copying and/or witness fees.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:25-cv-00719-DNH-ML Document 11 Filed 02/20/26 Page 309 of 417

McNair v. Utica Police Department, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4931609
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Brandon T. MCNAIR, Plaintiff,
v.
UTICA POLICE DEPARTMENT et al., Defendants.
6:23-CV-699
|
Signed August 1, 2023
Attorneys and Law Firms
BRANDON T. MCNAIR, Plaintiff, Pro Se, 421 Margaret
Street, Herkimer, NY 13350.
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, United States District Judge
*1 On June 12, 2023, pro se plaintiff Brandon T. McNair
(“plaintiff”) filed this 42 U.S.C. § 1983 action alleging that
various defendants violated his civil rights. Dkt. No. 1. Along
with his complaint, plaintiff also sought leave to proceed in
forma pauperis (“IFP Application”). Dkt. No. 2.
On June 26, 2023, U.S. Magistrate Judge Andrew T. Baxter
granted plaintiff's IFP application and advised by Report
& Recommendation (“R&R”) that plaintiff's complaint be
dismissed with partial leave to amend. Dkt. No. 4. As
Judge Baxter explained, plaintiff's claims against defendants
Utica Police Department, Judge Michael L. Dwyer, Oneida
County Courts, and District Attorney Scott McNamara
must be dismissed with prejudice because those defendants
were shielded from plaintiff's claims by various immunity
doctrines. Id. However, Judge Baxter concluded that plaintiff
might still be able to assert a viable claim, or perhaps
claims, for “alleged constitutional violations surrounding his
detention, arrest, and subsequent criminal prosecution as set
forth in his complaint, against the appropriate defendants.” Id.
Plaintiff has not filed objections. The time period in which to
do so has expired. See Dkt. No. 4. Upon review for clear error,
the R&R is accepted and will be adopted in all respects. See
FED. R. CIV. P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ACCEPTED;
2. Plaintiff's complaint is DISMISSED with prejudice against
defendants Utica Police Department, Judge Michael L.
Dwyer, Oneida County Courts a/k/a Oneida County Courts
and Officials, and District Attorney Scott McNamara;
3. Plaintiff's complaint is otherwise DISMISSED without
prejudice;
4. Plaintiff shall have forty-five days in which to file
an amended complaint that conforms with the instructions
set forth in Judge Baxter's June 26, 2023 Report &
Recommendation;
5. If plaintiff files an amended complaint within this forty-
five-day period, the matter shall be REFERRED to Judge
Baxter for further review and any other action as appropriate;
and
6. If plaintiff does not file an amended complaint within this
forty-five-day period, the Clerk of the Court is directed to
close this action without further Order of this Court.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 4931609
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:25-cv-00719-DNH-ML Document 11 Filed 02/20/26 Page 310 of 417

Merrill v. Copeland, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 3212075
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Heather MERRILL, Plaintiff,
v.
Corrine L. COPELAND, Defendant.
3:19-cv-1240 (BKS/ML)
|
Signed August 9, 2022
Attorneys and Law Firms
For Plaintiff: Jonathan R. Goldman, Sussman & Associates, 1
Railroad Avenue, Suite 3, P.O. Box 1005, Goshen, New York
10924.
For Defendant: Meredith A. Moriarty, Smith Hoke, PLLC, 16
Wade Road, Latham, New York 12110.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, U.S. District Judge
I. INTRODUCTION
*1 This action arises from an October 17, 2017 incident
during which Plaintiff Heather Merrill was arrested after
Defendant Corrine Copeland reported that she had found
Plaintiff in a sexual situation with a minor. In the complaint,
Plaintiff brought this action under 42 U.S.C. § 1983, alleging
that Defendant subjected her to false arrest and malicious
prosecution in violation of her Fourth Amendment rights.
(Dkt. No. 1). Defendant moves for summary judgment under
Federal Rule of Civil Procedure 56 as to both of Plaintiff's
claims. (Dkt. No. 76). The parties have filed responsive
briefing. (Dkt. Nos. 80, 86, 87). For the following reasons,
Defendant's motion is granted.
II. FACTS 1
A. The Youth Leadership Academy
At all relevant times, Defendant and Plaintiff were employed
by the New York State Office of Family and Children
Services at the Youth Leadership Academy (“YLA”) in South
Kortright, New York. (Dkt. No. 76-1, ¶¶ 1–2; Dkt. No. 80-1,
¶¶ 1–2; Dkt. No. 76-9, at 9–13). The YLA is a “state-funded
facility that houses youthful offenders or at-risk youth.” (Dkt.
No. 76-6, ¶ 2). Defendant worked as a Youth Counselor, and
her duties included supervising the residents at the facility
as well as supervising staff known as Youth Division Aides
(“YDAs”). (Dkt. No. 76-1, ¶¶ 2–3; Dkt. No. 80-1, ¶¶ 2–3; Dkt.
No. 76-8, at 20). Defendant at times was also the designated
“Administrator-on Duty,” who was “essentially in charge” of
other administrators at the YLA. (Dkt. No. 76-1, ¶ 3; Dkt. No.
80-1, ¶ 3; Dkt. No. 76-8, at 28). Plaintiff, who was 27 years
old at the relevant time, worked as a YDA. (Dkt. No. 76-9,
at 9–13, 142).
All YLA employees are trained in how to safely deal with
residents who present a danger to themselves or others,
including restraint training, how to escape from a resident,
and de-escalation training. (Dkt. No. 76-1, ¶ 67; Dkt. No.
80-1, ¶ 67; Dkt. No. 76-9, at 18–19). Employees are also
trained on using their radios to call for help, reporting any
incidents of abuse, and the procedures and processes to follow
if they have been assaulted. (Dkt. No. 76-1, ¶¶ 68–71; Dkt.
No. 80-1, ¶¶ 68–71). YLA employees are mandatory reporters
under state law, requiring them to report anything they witness
that they perceive as abuse against a minor. (Dkt. No. 76-9, at
141); see N.Y. Soc. Serv. Law § 413.
B. Events Preceding October 17, 2017
In early October 2017, Plaintiff was directed to take residents
“for gym class across the road to a field where they were
going to play kickball.” (Dkt. No. 76-9, at 48). Because there
were no cameras at the field, an administrator was required
to accompany Plaintiff and the residents for safety reasons.
(Id.; see also Dkt. No. 80-6, ¶ 6). According to Plaintiff,
none of the three administrators on duty that day, including
Defendant, came to the field. (Dkt. No. 76-9, at 48). Plaintiff
reported the rule violation to two youth counselors and filed
a written grievance. (Id. at 48–49). Although Plaintiff states
in her declaration that she “understand[s] that [Defendant's]
supervisors later [ ] spoke to her about this” and “admonished
her” for violating policy, (Dkt. No. 80-6, ¶ 6), Defendant
denies that Plaintiff ever made a report against her or that
she was admonished. (Dkt. No. 76-8, at 44–45; see also
Dkt. No. 76-6, ¶¶ 4–5 (YLA Assistant Director Robert
Paoletti declaring: “I do not believe that Ms. Copeland had
any disciplinary problems” and “I do not remember Ms.
Merrill ever making a verbal or written complaint against
Ms. Copeland, nor reporting her for any infractions”), Dkt.
No. 76-7, ¶ 7 (YLA Director Bernard Smith declaring that he
does not recall Defendant ever being disciplined for a major
infraction or Plaintiff “ever reporting on” Defendant)).
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*2 As a YDA, Plaintiff had taken J.C. and G.H., 2 two
male residents, several times to clean areas of the YLA
together, something that residents often did. (Dkt. No. 76-1,
¶ 47; Dkt. No. 80-1, ¶ 47; Dkt. No. 76-9, at 41–44, 63–
64). On October 16, 2017, Plaintiff took J.C., who was 16
years old at the time, and G.H. to clean Activity Room 4, a
multipurpose room that contains “a short dividing wall, sinks,
and bathroom stalls.” (Dkt. No. 76-1, ¶ 5; Dkt. No. 80-1, ¶
5; Dkt. No. 76-8, at 69). Activity Room 4 is a “large open
room” with a bathroom at one end which is only separated
from the rest of the room “by a row of sinks behind a half-
wall partition.” (Dkt. No. 80-6, ¶ 13; Dkt. No. 86-1, ¶ 20).
Both J.C. and G.H. would later report to law enforcement that
J.C. and Plaintiff had sex in Activity Room 4 that night. (Dkt.
No. 76-10, at 3, 5; Dkt. No. 76-11, at 3). Plaintiff denies that
anything physical happened between her and J.C. on October
16. (Dkt. No. 76-9, at 69–70).
C. The October 17, 2017 Incident and Plaintiff's
Arrest
1. The Incident
The parties have conflicting accounts of what happened on
October 17, 2017. According to Plaintiff, early in her 2:00
p.m. to 10:00 p.m. shift, Defendant approached Plaintiff,
appearing agitated, and asked her if she had “problems” or
“issues” with Defendant. (Dkt. No. 76-9, at 46–47, 136, 138–
39; see also Dkt. No. 80-6, ¶ 7). Plaintiff responded that she
had no problems with Defendant and that Plaintiff was “there
to do [her] job.” (Dkt. No. 76-9, at 47). Defendant denies ever
having a conversation with Plaintiff in which she confronted
Plaintiff and asked if Plaintiff had any problems with her.
(Dkt. No. 76-8, at 45).
The parties agree that Defendant was the Administrator-on-
Duty at the YLA on October 17. (Dkt. No. 76-1, ¶ 4; Dkt.
No. 80-1, ¶ 4). They also agree that J.C. and G.H. were in
Plaintiff's charge on that day. (Dkt. No. 76-1, ¶ 7; Dkt. No.
80-1, ¶ 7). While the parties do not dispute that Plaintiff took
J.C. and G.H. to clean Activity Room 4 that evening, they do
dispute who requested such cleaning. According to Plaintiff,
Defendant called Plaintiff's unit at approximately 8:45 p.m.
and requested that Plaintiff take J.C. and G.H. to clean the
Activity Room 4 bathrooms, which Defendant said were dirty.
(Dkt. No. 76-9, at 70–71; Dkt. No. 80-6, ¶ 9). Plaintiff states
that while it was “common for residents to go clean different
areas of the facility,” it was “not common to do so this late in
the evening after the final count of the day.” (Dkt. No. 80-6,
¶ 10). According to Defendant, however, J.C. approached her
at some point to ask to clean the facility, and Plaintiff later
called Defendant requesting to take J.C. and G.H. to clean
the bathrooms. (Dkt. No. 76-8, at 67, 71, 75). Defendant
also states that it was typical for residents to do a cleaning
assignment after the 9:00 p.m. count. (Id. at 74).
After the evening count was completed, Plaintiff took J.C.
and G.H. to clean the Activity Room 4 bathroom. (Dkt. No.
80-6, ¶ 11). Plaintiff followed facility protocol and reported
her movement to the Central Services Unit (“CSU”) and had
another staff member record her movement in the housing
unit logbook. (Id.). On the way, Plaintiff and the two residents
met Mr. Liberi, a youth counselor. (Id. ¶ 12). Mr. Liberi
took G.H. to the medical unit for G.H.’s evening medications
while Plaintiff took J.C. to a supply area to gather cleaning
supplies. (Id.). All four individuals arrived at Activity Room
4 at approximately the same time; Mr. Liberi then left,
and J.C. and G.H. began to clean. (Id.). Plaintiff states that
she reminded J.C. and G.H. to clean thoroughly because
Defendant had indicated that the bathroom was filthy. (Dkt.
No. 80-6, ¶ 14).
*3 According to Plaintiff, J.C. asked her to hand him a
cleaning spray bottle. (Dkt. No. 76-9, at 79). As Plaintiff
approached the bathroom stall to hand him the spray, J.C.
pushed her into the bathroom stall and entered the stall behind
her such that J.C. was between Plaintiff and the stall door.
(Id.). Plaintiff began to struggle and attempt to exit the stall,
but J.C. was able to overpower her and push her toward the
wall. (Id. at 79–80; Dkt. No. 80-6, ¶ 14). J.C. unbuttoned
Plaintiff's pants and pulled them down, and he was unable to
unbuckle Plaintiff's utility belt, which fell to the floor. (Dkt.
No. 76-9, at 80–82). 3 J.C. touched Plaintiff's vagina with
his penis from behind but did not penetrate her. (Id. at 83;
Dkt. No. 80-6, ¶ 14). Plaintiff told J.C. to stop and tried to
exit the stall, but she did not scream. (Dkt. No. 76-9, at 84).
Plaintiff did not use her radio to call for help. (See id. at 85
(Plaintiff testifying that she was unable to reach get to her
radio, which was on the floor)). Plaintiff estimates that she
was in the bathroom stall with J.C. for approximately five
minutes. (Id.; Dkt. No. 80-6, ¶ 15).
In the meantime, Defendant was doing her regular tasks for
the evening, which included checking on residents and staff
and walking around the facility. (Dkt. No. 76-8, at 75–76).
Defendant walked through the hallway in front of Activity
Room 4. (Id. at 76). When she entered the room, G.H.’s
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Merrill v. Copeland, Not Reported in Fed. Supp. (2022)
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eyes widened, and the parties agree that he said something.
(Id. at 76–79 (Defendant testifying that G.H. said her name
(“Copeland”) to “alert” J.C. and Plaintiff that she was there);
Dkt. No. 76-9, at 86 (Plaintiff testifying that G.H. said
“yo”)). According to Plaintiff, when G.H. called out J.C.
said “oh shit” and paused for a moment, giving Plaintiff the
opportunity to try to push past him. (Dkt. No. 80-6, ¶ 15).
Defendant looked toward the bathroom stalls and saw two sets
of feet in one stall. (Dkt. No. 76-8, at 81). She opened the door
to the bathroom stall and saw J.C. and Plaintiff standing facing
each other, J.C.’s erect penis, that J.C.’s pants were down, and
that Plaintiff's shirt was untucked. (Id. at 81–82). 4
The parties sharply dispute what was said once Defendant
opened the stall door. Defendant testified that she said
“Merrill, I thought you ... said that you were cleaning
up?” (Dkt. No. 76-8, at 84). Plaintiff “turned beet red”
and repeatedly asked Defendant not to say anything. (Id. at
85–87). Defendant also testified that she told J.C. to pull
up his pants and told J.C. and Plaintiff to exit the stall.
(Id. at 86). Plaintiff, by contrast, testified at her deposition
that Defendant said “I got you” when she opened the stall
door. (Dkt. No. 76-9, at 87). Plaintiff also testified that she
asked Defendant for help, told her that J.C. was attacking
her, and begged her not to leave. (Id. at 87–88). Plaintiff
remembers saying that she “was trying to show [J.C.] how
to clean the bathrooms when he came up behind me.” (Id. at
145). Defendant denies that Plaintiff asked for help or told
Defendant that J.C. had attacked her. (Dkt. No. 76-8, at 85). 5
According to Defendant, there were no cleaning supplies
in the bathroom stall. (Dkt. No. 76-8, at 130–31). Plaintiff
responds that the surveillance video, which does not capture
inside the bathroom stalls, depicts Plaintiff, J.C., and G.H.
bringing cleaning supplies “into the stall area” and that she
was bringing J.C. a spray bottle when he pushed her into the
stall. (Dkt. No. 80-1, ¶ 16).
*4 The parties agree that Defendant was only in the
bathroom for a short period of time. (Dkt. No. 76-1, ¶ 17; Dkt.
No. 80-1, ¶ 17). Defendant left to find Mr. Liberi, another
youth counselor. (Dkt. No. 76-8, at 86). Defendant could not
recall at her deposition exactly what she told Mr. Liberi, but
she directed him to Activity Room 4. (Id. at 87–88, 99; see
also Dkt. No. 76-14, at 85 (Defendant testifying at Plaintiff's
criminal trial that she “sent Mr. Liberi up there”)). 6 Plaintiff
states that she was in “complete shock.” (Dkt. No. 80-6, ¶
16). J.C. sat on the floor saying that his “life was over” and
that he would lose his release date as a result of the incident.
(Id.; Dkt. No. 76-9, at 88). Plaintiff did not leave the residents
or use her radio to call for help. (Dkt. No. 76-9, at 89, 124).
She “clicked into the motions” of her job, which requires that
“you're not supposed to leave any resident alone ever.” (Id. at
90). Plaintiff told J.C. and G.H. to put the cleaning supplies
away; she wanted to get them back to their housing unit
quickly so she “could get away from them.” (Id. at 91). As
the three exited Activity Room 4, they met Mr. Liberi in the
hallway. (Dkt. No. 80-6, ¶ 16). Plaintiff states that she told Mr.
Liberi that she needed to talk to him; Mr. Liberi responded
that Plaintiff should go to the pre-shift briefing room and he
would take J.C. and G.H. back to their unit. (Dkt. No. 76-9,
at 92).
2. Defendant's Reports
After speaking with Mr. Liberi, Defendant went to CSU to
call her superiors. (Dkt. No. 76-8, at 89). Defendant called
—or had CSU staff call on her behalf—Assistant Director
Paoletti, who was the administrator on call that night. (Id.;
Dkt. No. 76-6, ¶ 7 (Paoletti declaration stating that Defendant
called him and said “she saw [Plaintiff] having sex with
one of the youth residents”)). Assistant Director Paoletti
directed Defendant to call Director Smith, who lived closer
to the facility. (Dkt. No. 76-6, ¶ 7). Defendant called Director
Smith, who states that Defendant told him “she saw [Plaintiff]
coming out from the area where the bathroom was located,”
with her “duty belt off” and her hair “disheveled.” (Dkt. No.
76-7, ¶ 8). Director Smith directed Defendant to ensure J.C.
was taken to the nurse and later to the emergency room. (Dkt.
No. 76-8, at 107–08). 7 After arriving at the YLA, speaking
with Defendant, and reviewing surveillance video, Director
Smith reported the incident to the New York State Police
and the Justice Center. (Dkt. No. 76-7, 910; see also Dkt.
No. 76-5, ¶ 3 (declaration of Investigator Mackey stating that
the State Police “first received a call from Bernard Smith”
reporting that Plaintiff “was found in a sexual position with a
minor resident in her care”)). Defendant could not recall at her
deposition whether she also called these entities, but testified
that she would have done so had she been directed to by her
supervisors. (See Dkt. No. 76-8, at 92–99; see also Dkt. No.
76-14, at 85 (Defendant testifying at Plaintiff's criminal trial
that she called the police and the Justice Center)).
Two State Troopers, Officers Konstable and Radley, arrived
at the YLA and interviewed the relevant parties, including
Defendant, and reviewed the surveillance video. (Dkt. No.
76-5, ¶¶ 5–6). Defendant spoke with the Officers and signed a
supporting deposition before a Trooper Langtry shortly after
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11:00 p.m. (Dkt. No. 76-8, at 111–14, 117). The deposition
indicates that the interview started at 11:07 p.m. and ended at
11:33 p.m. (Dkt. No. 76-10, at 2). In relevant part, Defendant's
supporting deposition reads that, after she entered Activity
Room 4 and G.H. called out:
I immediately looked down and saw [J.C.’s] and
[Plaintiff's] feet facing each other inside the bathroom stall.
Once I saw their feet I immediately ran to the stall and
pushed open[ ] the door. Once I opened the door I observed
[J.C.] with his pants down and his erect penis out. [Plaintiff]
had her belt off and jacket off. Her hair was dish[e]veled
and her face was be[e]t red. When I asked them what they
were doing in there [Plaintiff] responded, “I was teaching
him how to clean the toilet.” There were absolutely no
cleaning supplies in the stall. J.C. stated to me that he
“finger popped” her three times. He also stated to me, “I
stuck my dick in her two or three times before you came
in.” [J.C.] advised me that [Plaintiff] coerced him to have
sex.
*5 (Id.).
3. Other Reports to Law Enforcement
J.C. and G.H. were interviewed by the police separately and
signed supporting depositions giving similar descriptions of
the incident. (Dkt. No. 76-5, ¶ 9; Dkt. No. 76-10, at 3, 5). 8
J.C.’s supporting deposition, signed at 11:07 p.m., states in
relevant part:
Once we were inside the AR4 room
I grabbed [Plaintiff's] ass. [Plaintiff]
smiled once I grabbed her. This was
planned from yesterday .... We also had
sex yesterday October 16, 2017 around
7:00pm in the same AR4 area. After
I grabbed her ass, [Plaintiff] walked
into the bathroom stall and pulled her
pants down. I then pulled my pants
down and we began to have sex in the
bathroom stall.... Approximately 15
minutes go by before we get caught by
[Defendant]. [Defendant] asked what
was going on and I responded with
“damn.” [Plaintiff] said that nothing
was going on and we were separated.
(Dkt. No. 76-10, at 3). G.H.’s supporting deposition, signed
at 11:52 p.m., reads in part:
Once we got over [to Activity Room 4]
[Plaintiff] and [J.C.] went into the stall
to have sex. Before they went into the
stall I told [J.C.] I'll be the lookout for
them in case anyone comes in. I knew
they were going to have sex because
they did last night too when we came
over to clean. Tonight they were in
the stall for approximately ten minutes
before [Defendant] came in. Once I
saw [Defendant] come in I yelled to
them .... [Defendant] ran to the door
and pushed it open. I heard [Plaintiff]
try to tell [Defendant] she was only
showing [J.C.] how to clean the toilet.
I know that's a lie because they did not
have any cleaning supplies with them.
(Id. at 5).
At 3:40 a.m. in the morning, J.C. participated in an interview
with Investigator Michelle Marshall of the New York State
Police. (Dkt. No. 76-11). In this interview, J.C. stated that he
was caught by Defendant having sex with Plaintiff in Activity
Room 4. (Id. at 3). He stated that Plaintiff grabbed his hand
and led him to the bathroom stall, they both pulled their pants
down, Plaintiff performed oral sex on him, and they then “got
busy.” (Id.). J.C. stated that he “finger popped” Plaintiff while
they were in the bathroom stall. (Id. at 4). J.C. also recounted
that he and Plaintiff had sex the evening of October 16. (Id.
at 3). J.C. stated that Plaintiff had brought him drugs on two
occasions: one pill of Oxycodone 5 on October 16 and one
pill the prior week. (Id. at 4). Plaintiff also gave him a “pair
of gray panties with pink imprint that said ‘I want candy,’ ”
which J.C. returned to her after having sex on October 16.
(Id.). 9
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4. Plaintiff's Arrest
*6 After meeting Mr. Liberi in the hallway after the incident,
Plaintiff went to the pre-shift briefing room and waited there.
(Dkt. No. 76-9, at 114, 133). Plaintiff did not witness anything
J.C. said to law enforcement or have any other contact with
him that night. (Id. at 133).
Plaintiff testified at her deposition that a few YLA staff
members came into the briefing room at approximately 9:45
p.m., before the start of their shift, and that she “told them
what had happened.” (Id. at 93). 10 She also testified that
a Mr. Howland came into to take her radio; Plaintiff tried
to tell him what happened but he “cut [her] off” and said
someone would come to talk to her. (Id. at 94). According to
Plaintiff, Defendant also came into the room to tell Plaintiff
that the police would be coming. (Id. at 95). Plaintiff tried to
tell her what happened but Defendant also cut her off. (Id.).
Defendant denies that she ever went into the briefing room to
see Plaintiff that night. (Dkt. No. 76-8, at 109).
Although Investigator Mackey states that officers at the YLA
interviewed Plaintiff, who gave very little information and did
not claim to have been sexually assaulted, (Dkt. No. 76-5, ¶
8), Plaintiff denies being interviewed at the YLA, (Dkt. No.
80-6, ¶¶ 17–18; see also Dkt. No. 80-4, at 8).
Around midnight, Director Smith entered the briefing room
but states that he “did not ask [Plaintiff] about what happened,
as [he] did not want to interfere with the investigation.” (Dkt.
No. 76-7, ¶ 11). Director Smith states that Plaintiff “never
reported to [him] that she had been raped,” despite her
training to report such incidents. (Id. ¶¶ 12–13). Director
Smith was accompanied by a State Trooper who placed
Plaintiff under arrest and handcuffed her. (Dkt. No. 76-9,
at 96–97). According to Investigator Mackey, the Troopers
who arrived at the YLA reported their findings to him at
his home after they had conducted interviews and reviewed
the surveillance footage. (Dkt. No. 76-5, ¶ 11). Based on
their report, Investigator Mackey “instructed them to arrest”
Plaintiff. (Id. ¶ 12).
Upon her arrest, Plaintiff was placed into a State Police
vehicle and driven to the State Trooper barracks in Stamford,
New York, approximately 15 minutes away. (Dkt. No. 76-9,
at 97–98). During the drive, after being read her Miranda
rights, Plaintiff asked the Trooper driving her “if anybody was
going to ask [her] what happened,” and the Trooper responded
to wait until they arrived at the barracks. (Id. at 98). At the
barracks, Plaintiff was interviewed by Investigator Mackey,
who also reviewed the surveillance video and found that it
corroborated the information provided by Defendant and the
residents. (Dkt. No. 76-5, ¶ 13; Dkt. No. 76-9, at 99–100). 11
During this interview, Plaintiff told Investigator Mackey that
J.C. had sexually assaulted her. (Dkt. No. 76-5, ¶ 14; Dkt. No.
76-9, at 99). According to Plaintiff, Investigator Mackey said
she was lying and said “they found [her] underwear in [J.C.’s]
room.” (Dkt. No. 76-9, at 99–100). According to Investigator
Mackey, Plaintiff did not have “adequate answers” to his
questions about her account of the incident. (Dkt. No. 76-5,
¶ 15). After a few minutes of questioning, realizing that
Investigator Mackey was not going to believe her, Plaintiff
asked for a lawyer and terminated the interview. (Dkt. No.
76-9, at 100; Dkt. No. 80-6, ¶ 19). 12
*7 Plaintiff was subsequently arraigned and able to post bail.
(Dkt. No. 80-6, ¶ 20).
5. Subsequent Events
On October 18, 2017, YLA employees searched J.C.’s room
and found “white powder and pill chunks in a wax paper
in his dresser.” (Dkt. No. 76-10, at 4 (supporting deposition
of Assistant Director Paoletti)). These partial pills “tested
positive for oxycodone on the field test.” (Dkt. No. 76-5, ¶
23). A few days later, Plaintiff was arrested on additional
charges accusing her of providing J.C. oxycodone. (Dkt.
No. 80-6, ¶ 21). The pills were sent to an outside lab for
analysis, and the results came back negative or inconclusive
for controlled substance content. (Dkt. No. 80-5, at 2 (report
stating “No controlled substances were identified.”)). The
related charges against Plaintiff were dropped. (Dkt. No. 80-6,
¶ 21).
D. Plaintiff's Prosecution
Investigator Mackey initiated another interview with
Defendant after Plaintiff's arrest. (Dkt. No. 76-5, ¶ 31).
Defendant testified at her deposition that she would have
spoken with any law enforcement individual who reached out
to her, but could not recall if or how often that happened.
(Dkt. No. 76-8, at 117–19). Defendant did not reach out
to Investigator Mackey or ask to speak with him. (Id.
at 117; Dkt. No. 76-5, ¶ 33 (Investigator Mackey stating
that Defendant did not “request any meetings” or “contact
our office”)). Similarly, during the preparation of Plaintiff's
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criminal case, the District Attorney's office initiated all
contact with Defendant. (Dkt. No. 76-8, at 125).
Defendant testified before a grand jury on March 29, 2018.
(See Dkt. No. 80-3). The grand jury indicted Plaintiff on
two counts of rape in the third degree and one count of
endangering the welfare of a child. (Dkt. No. 76-4, ¶ 4). In
November 2018, Plaintiff was found not guilty on all three
charges after a jury trial. (Dkt. No. 76-9, at 104).
E. Justice Center Investigation
The Justice Center, a New York state agency, conducted an
investigation into allegations that Plaintiff committed sexual
abuse and neglect against a “Service Recipient” on or about
October 17, 2017 at the YLA. (Dkt. No. 76-12). The Justice
Center interviewed Defendant about the October 17, 2017
incident as part of its investigation. (Dkt. No. 76-8, at 133).
Plaintiff declined to participate or answer questions. (Dkt.
No. 76-9, at 106–07). On March 12, 2021, the Justice Center
issued a “Report of Investigation Determination” in which it
found the allegations against Plaintiff “substantiated.” (Dkt.
No. 76-12, at 2). Although Plaintiff initially pursued an appeal
of that finding, she withdrew her appeal on March 1, 2022,
before a hearing was held. (Dkt. No. 86-2, at 4).
III. STANDARD OF REVIEW
Under Rule 56(a), summary judgment may be granted only
if all the submissions taken together “show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 323, 106 S.Ct. 2548. A fact is “material” if it
“might affect the outcome of the suit under the governing
law,” and is genuinely in dispute “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.
2005) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The
movant may meet this burden by showing that the nonmoving
party has “fail[ed] to make a showing sufficient to establish
the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan
v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013)
(explaining that summary judgment is appropriate where
the nonmoving party fails to “ ‘come forth with evidence
sufficient to permit a reasonable juror to return a verdict in
his or her favor on’ an essential element of a claim” (quoting
In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d
Cir.2010))).
*8 If the moving party meets this burden, the nonmoving
party must “set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 248, 250, 106
S.Ct. 2505; see also Celotex, 477 U.S. at 323–24, 106 S.Ct.
2548; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).
“When ruling on a summary judgment motion, the district
court must construe the facts in the light most favorable to
the non-moving party and must resolve all ambiguities and
draw all reasonable inferences against the movant.” Dallas
Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.
2003). Still, the nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986),
and cannot rely on “mere speculation or conjecture as to the
true nature of the facts to overcome a motion for summary
judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.
1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840
(2d Cir. 1985)). Furthermore, “[m]ere conclusory allegations
or denials ... cannot by themselves create a genuine issue of
material fact where none would otherwise exist.” Hicks v.
Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v.
Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
IV. DISCUSSION
Plaintiff asserts claims for false arrest and malicious
prosecution against Defendant under 42 U.S.C. § 1983.
(Dkt. No. 1). Plaintiff's claims are premised on Defendant's
making five allegedly false statements when reporting what
she observed on October 17, 2017. (See generally id.; Dkt.
No. 14, at 6 (noting that Plaintiff's claims are not premised
on Defendant's grand jury or criminal trial testimony)).
Specifically, Plaintiff alleged in the complaint that Defendant
made the following false statements or omissions: (1)
when Defendant opened the stall door and asked what was
happening, Plaintiff responded: “I was teaching him how
to clean the toilet”; (2) J.C. told Defendant that he “finger
popped” Plaintiff “three times” and “stuck [his] dick in her
two or three times” before Defendant opened the stall door;
(3) J.C. “advised” Defendant that Plaintiff “coerced him to
have sex”; (4) failing to report Plaintiff's pleas for assistance;
and (5) Plaintiff had begged Defendant not to report the
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incident and expressed concern over losing her job due to the
incident. (Id. ¶¶ 7–11, 14). 13 Defendant moves for summary
judgment as to both of Plaintiff's claims. (Dkt. No. 76-2).
A. Applicable Law
A Section 1983 claim for false arrest 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). To prevail on a Fourth Amendment false arrest
claim, a plaintiff must establish that: “(1) the defendant
intended to confine him, (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.” Ackerson v. City of White Plains, 702 F.3d 15,
19 (2d Cir. 2012) (quoting Broughton v. New York, 37 N.Y.2d
451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)).
A Section 1983 claim for malicious prosecution has four
elements: “(1) the initiation or continuation of a criminal
proceeding; (2) termination of the proceeding in the plaintiff's
favor; (3) lack of probable cause for commencing the
proceeding; and (4) actual malice as a motivation” for the
defendant's actions. Laureano v. United States, No. 19-
cv-10986, 2020 WL 1847739, at *2, 2020 U.S. Dist. LEXIS
64635 (S.D.N.Y. Apr. 10, 2020) (citing Murphy v. Lynn, 118
F.3d 938, 947 (2d Cir. 1997)). In addition, under Section
1983, a plaintiff must allege “a sufficient post-arraignment
liberty restraint to implicate the plaintiff's Fourth Amendment
rights.” Rohman v. N.Y. City Transit Auth. (NYCTA), 215 F.3d
208, 215 (2d Cir. 2000).
B. Collateral Estoppel
*9 In her reply memorandum, Defendant argues that
Plaintiff's claims are barred by collateral estoppel in light
of (1) the Justice Center's determination that the allegations
that Plaintiff committed sexual abuse and neglect against a
YLA resident were substantiated and (2) Plaintiff's decision
not to appeal that determination. (Dkt. No. 86, at 14–18). 14
Defendant argues that the Justice Center “already determined
that Plaintiff did abuse a minor in her care” and that Plaintiff
had a “full and fair opportunity to litigate the issue,” which
she waived by withdrawing her appeal of the Justice Center's
findings. (See id.). Plaintiff responds that collateral estoppel
does not apply because the issue of whether she abused a
minor in her care was never “actually litigated in the Justice
Center” and she did not have a full and fair opportunity to
litigate the issue. (See generally Dkt. No. 87).
Under New York law, 15 collateral estoppel “precludes a party
from relitigating an issue which has previously been decided
against her in a proceeding in which she had a fair opportunity
to fully litigate the point.” In re Dunn, 24 N.Y.3d 699,
704, 27 N.E.3d 465 (2015) (brackets, citation, and internal
quotation marks omitted). Application of collateral estoppel
is appropriate when:
(1) the issues in both proceedings
are identical, (2) the issue in the
prior proceeding was actually litigated
and decided, (3) there was a full
and fair opportunity to litigate in the
prior proceeding, and (4) the issue
previously litigated was necessary to
support a valid and final judgment on
the merits.
Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 29 N.E.3d
215 (2015) (citations omitted). The issue must also “be
decisive of the present action.” Curry v. City of Syracuse,
316 F.3d 324, 331 (2d Cir. 2003) (citation omitted). The
party seeking to invoke collateral estoppel has the burden of
showing “the identity of the issues,” while the party seeking to
avoid application of the doctrine “must establish the lack of a
full and fair opportunity to litigate” the issue. Dunn, 24 N.Y.3d
at 704, 27 N.E.3d 465. Collateral estoppel “is a flexible
doctrine which can never be rigidly or mechanically applied.”
Gilberg v. Barbieri, 53 N.Y.2d 285, 292, 441 N.Y.S.2d 49, 423
N.E.2d 807 (1981) (citations omitted).
Collateral estoppel can apply to administrative agency
determinations which are “quasi-judicial in nature.” ABN
AMRO Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 226, 928
N.Y.S.2d 647, 952 N.E.2d 463 (2011) (citation omitted).
An administrative agency determination is quasi-judicial in
nature when “it is rendered pursuant to the adjudicatory
authority of an agency to decide cases brought before its
tribunals employing procedures substantially similar to those
used in a court of law.” Id. (citation and internal quotation
markets omitted); see also Jeffreys v. Griffin, 1 N.Y.3d 34,
40–41, 769 N.Y.S.2d 184, 801 N.E.2d 404 (2003) (noting
that the relevant factors are “whether the procedures used”
were “sufficient both quantitatively and qualitatively, so as
to permit confidence that the facts asserted were adequately
tested, and that the issue was fully aired”).
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Here, the Justice Center—a New York state agency—issued
a “Report of Investigation Determination” indicating the
“outcome of [its] investigation” into the allegations against
Plaintiff. (Dkt. No. 76-12, at 2). The Justice Center found the
allegations of sexual abuse and neglect “substantiated.” (Id.).
New York regulations define a substantiated report, in
relevant part, as “a report of abuse or neglect wherein a
determination has been made as a result of an investigation
that there is a preponderance of the evidence that the alleged
act or acts of abuse or neglect occurred [and] that any such act
or acts committed by the subject constitute abuse or neglect.”
14 N.Y.C.R.R. § 700.3(f). The subject of a substantiated
report has the right to a hearing before an administrative
law judge (“ALJ”) “to determine whether the findings of the
report should be amended.” Id. § 700.6(a); see also id. §
700.10 (setting forth the conduct of the hearing before the
ALJ, including the right to call witnesses, present relevant
evidence, and cross-examine opposing witnesses). Although
Plaintiff initially pursued an appeal of the Justice Center's
substantiated report against her, she withdrew her appeal the
day before her scheduled hearing. (Dkt. No. 86-2, at 4).
*10 The Court concludes that collateral estoppel does not
preclude Plaintiff from arguing that she did not sexually
abuse a minor on October 17, 2017 because that issue was
not “actually litigated” in a quasi-judicial manner before
the Justice Center. While the Justice Center's report states
that the Justice Center “investigated” the allegations against
Plaintiff, the record before the Court does not indicate exactly
what that investigation entailed and what procedures were
used, much less that procedures substantially similar to those
used in a court of law were employed. Defendant testified
at her deposition that the Justice Center interviewed her as
part of an investigation, while Plaintiff testified that she
declined the opportunity to participate in an “interrogation.”
(Dkt. No. 76-8, at 133–34; Dkt. No. 76-9, at 106–07). The
Court therefore cannot conclude that the issue of whether
Plaintiff sexually abused a minor was “adequately tested”
or “fully aired.” Jeffreys, 1 N.Y.3d at 40–41, 769 N.Y.S.2d
184, 801 N.E.2d 404. The parties have not cited to, and
the Court has not found, any caselaw addressing the issue
preclusive effect of a Justice Center's substantiated report
which was not appealed. In Kosakow v. New Rochelle
Radiology Associates, P.C., however, the Second Circuit held
that “a determination of no probable cause by [the New
York Division of Human Rights (“DHR”)], absent a formal
hearing and absent any subsequent review in state court,”
did not preclude “subsequent federal court litigation of an
issue already decided by the DHR.” 274 F.3d 706, 730–36
(2d Cir. 2001). There, the plaintiff submitted a complaint
to the DHR and the parties exchanged responsive papers
with supporting documents, but there was no record of any
discovery, interviews of witnesses, or hearing. Id. at 734.
The Second Circuit could not “ignore[ ] that the DHR makes
factual conclusions based on a record that is far less developed
than that before a federal court,” and concluded that the
plaintiff was not collaterally estopped from relitigating the
issue. Id. at 735–36. Here, there is no indication that Plaintiff
participated in the Justice Center's investigation at all or on
what the investigation was based. Defendant therefore has
not met her burden of demonstrating that the same issue was
actually litigated in a quasi-judicial forum.
Further, Plaintiff's failure to avail herself of the opportunity
to appeal the Justice Center's report does not give the Justice
Center's substantiated report preclusive effect. Although a
hearing before the ALJ likely would have involved more
formal procedures more akin to those found in a court of
law, see 14 N.Y.C.R.R. § 700.10, the availability of those
procedures does not alter the fact that the issue was not
actually litigated or sufficiently fully aired. If an issue “has
not been litigated, there is no identity of issues between
the present action and the prior determination.” Halyalkar v.
Bd. of Regents of N.Y., 72 N.Y.2d 261, 267, 532 N.Y.S.2d
85, 527 N.E.2d 1222 (1988) (citation omitted). “An issue
is not actually litigated if, for example, there has been a
default, a confession of liability, a failure to place a matter in
issue by proper pleading[,] or even because of a stipulation.”
Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456–57, 492
N.Y.S.2d 584, 482 N.E.2d 63 (1985) (citations omitted). In
Halyalkar, for example, the Court of Appeals held that a
consent order in a prior administrative proceeding stating
that the plaintiff entered a plea of guilty to disciplinary
charges did not have collateral estoppel effect. 72 N.Y.2d
at 268, 532 N.Y.S.2d 85, 527 N.E.2d 1222. The Court of
Appeals noted that, by signing the consent order, the plaintiff
“simply indicated” that he did not wish to contest the charges
against him and wanted to “accept the minimal sanction”
negotiated by his counsel. Id. Therefore, the “issue in question
was neither argued, nor conceded nor even addressed” in
the administrative proceeding. Similarly, here, the Court
concludes that Plaintiff's withdrawal of her appeal operates
more like a default or an acceptance of the penalty against
her. Kaufman, 65 N.Y.2d at 456–57, 492 N.Y.S.2d 584, 482
N.E.2d 63; Halyalkar, 72 N.Y.2d at 268, 532 N.Y.S.2d 85,
527 N.E.2d 1222. While Defendant argues that “a default
judgment is conclusive as to the issues which were raised
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or could have been raised in the prior action,” the cases she
cites discuss the related but distinct concept of res judicata,
not collateral estoppel. (See Dkt. No. 86, at 15–16, and cases
cited therein). As the cases cited above state, an issue has not
been actually litigated for purposes of collateral estoppel in
the event of a default. 16
Accordingly, the Court concludes that Plaintiff's claims are
not barred by the doctrine of collateral estoppel.
C. Color of State Law
Defendant argues that she is entitled to summary judgment on
Plaintiff's claims because Plaintiff “cannot present evidence”
that Defendant was acting under color of state law when she
made the allegedly false statements. (Dkt. No. 76-2, at 27–
29). Defendant argues that her mere employment by the state
and the fact that she was on duty at the time of the incident
are not sufficient to make her conduct “fairly attributable”
to the state and points to Investigator Mackey's and DA
Hubbard's attestations that “they did not see [Defendant's]
role as a counselor at the YLA as giving her any authority
or additional power.” (See id. (citing Dkt. No. 76-4, ¶ 26;
Dkt. No. 76-5, ¶ 31)). Plaintiff responds that a reasonable
jury could find that Defendant acted under color of state law
because there is evidence that Defendant made the allegedly
false statements about the incident as part of discharging her
duties as Administrator-on-Duty. (Dkt. No. 80, at 28–29).
*11 By its terms, Section 1983 applies only where the
defendant acts “under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia.” 42 U.S.C. § 1983; Kern v. City
of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) (“[A] plaintiff
must allege a violation of rights secured by the Constitution
or laws of the United States, and that such violation was
committed by a person acting under the color of state law.”).
A “defendant in a § 1983 suit acts under color of state law
when he abuses the position given to him by the State.” West
v. Atkins, 487 U.S. 42, 49–50, 108 S.Ct. 2250, 101 L.Ed.2d
40 (1988). By contrast, “acts of officers in the ambit of
their personal pursuits are plainly excluded.” United States
v. Giordano, 442 F.3d 30, 42–43 (2d Cir. 2006) (quoting
Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89
L.Ed. 1495 (1945) (plurality opinion)). “[T]here is no bright
line test for distinguishing ‘personal pursuits’ from activities
taken under color of law.” Pitchell v. Callan, 13 F.3d 545,
548 (2d Cir. 1994). A defendant acts under color of state
law for the purposes of Section 1983 when she exercises a
power “possessed by virtue of state law and made possible
only because the wrongdoer is cloaked with the authority
of state law.” Colombo v. O'Connell, 310 F.3d 115, 117–18
(2d Cir. 2002) (citation omitted). The “focus” of the color
of law inquiry is on “whether there was an abuse or misuse
of a power conferred upon [the state employee] by state
authority,” and “look[s] to the nature of the officer's act, not
simply [her] duty status.” Pitchell, 13 F.3d at 548–49.
Here, viewing the facts in the light most favorable to Plaintiff,
the Court concludes that there is evidence from which a
reasonable factfinder could conclude that Defendant acted
under color of state law when she made the allegedly false
statements regarding the incident. First, as the parties agree,
Defendant was the Administrator-on-Duty at the YLA on
October 17, and she was in a supervisory position with respect
to Plaintiff. While the fact that Defendant was on duty at
the time of her challenged conduct is not itself sufficient to
establish state action, Pitchell, 13 F.3d at 548, a factfinder
could conclude from the evidence that her actions were
“related to the authority conferred upon [her] by the state,”
Arroyo v. City of Bridgeport, No. 12-cv-1258, 2015 WL
235065, at *8, 2015 U.S. Dist. LEXIS 5408 (D. Conn. Jan. 16,
2015) (citations omitted). Defendant agreed at her deposition
that, as part of her role as supervisor in charge of the YLA
facility on October 17, it was her responsibility “to report
anything that [she] may have observed” through the chain
of command. (Dkt. No. 76-8, at 94–95). She also stated that
her responsibility to report something she observed that was
possibly criminal in nature to the police would depend on
whether the director or assistant director told her to report it.
(Id. at 95–97, 65 S.Ct. 1031; see id. at 98–99, 65 S.Ct. 1031
(agreeing that “the calls to the Justice Center and to the police
were things that naturally flowed from [Defendant] following
[her] obligations and [her] responsibilities as [Administrator-
on-Duty] to report through the chain of command”)). 17
Defendant reported her observations of the incident, either
directly or indirectly, to her superiors, the Justice Center, and
the police. A factfinder could conclude that her statements
to police were performed as “a means of carrying out the
responsibilities of [her] official position” as Administrator-
on-Duty. See, e.g., Defalco v. MTA Bus Co., 788 F. App'x
43, 45 (2d Cir. 2019) (summary order) (concluding that
state employee acted under color of state law where his
involvement in the conduct at issue “arose directly from his
position as an MTA Bus Company foreman”). If a jury were
to so conclude, the fact that any private citizen could have
engaged in the same conduct, (see Dkt. No. 76-2, at 28), is
irrelevant. Cf. Defalco, 788 F. App'x at 45 (“[I]f an individual
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is possessed of state authority and purports to act under that
authority, his action is state action. It is irrelevant that he might
have taken the same action had he acted in a purely private
capacity.” (citation omitted)).
*12 Defendant also argues that Plaintiff cannot present any
evidence that she acted under color of state law because
Investigator Mackey and DA Hubbard have “affirmed that
she did not use her position” during the investigation and
prosecution. (Dkt. No. 79-2, at 29). Investigator Mackey
states that he found Defendant credible, but that her “position
as a youth counselor or as Administrator-on-Duty at the YLA
did not influence [his] opinion of her.” (Dkt. No. 76-5, ¶ 31).
Similarly, DA Hubbard states that Defendant's position did
not influence his judgment of her credibility, that Defendant
“did not attempt to assert additional authority based on her
position,” and that she was “simply a fact witness to the
incident.” (Dkt. No. 76-4, ¶ 26). However, this argument
“erroneously centers on [Investigator Mackey's and DA
Hubbard's] subjective reaction[s] to [Defendant's] conduct
rather than the nature of [Defendant's] activity” and therefore
“misses the essence of the color of law requirement.” Pitchell,
13 F.3d at 548–49 (rejecting the plaintiff's argument that
the defendants acted under color of state law because the “
‘police presence’ in the apartment had a numbing effect on his
defenses” and he “believed he would be protected”). Because
the focus of the color of state law requirement is on the nature
of Defendant's conduct, and not any particular individual's
subjective perception of that conduct, Defendant's argument
is misplaced.
Accordingly, the Court concludes that there is a triable issue
of fact as to whether Defendant acted under color of state law,
and Defendant is not entitled to summary judgment on this
element of Plaintiff's claims. 18
D. Initiation
Defendant argues that she is entitled to summary judgment
on Plaintiff's claims because there is not evidence that she
initiated either Plaintiff's arrest or prosecution. (Dkt. No.
76-2, at 11–17). Plaintiff responds that a reasonable jury could
find that Defendant knowingly made false statements to law
enforcement, which satisfies the “initiation” element. (Dkt.
No. 80, at 14–21).
To establish the first element of a false arrest claim—
that Defendant intended to confine Plaintiff—the defendant
“must have either: (1) confined or intended to confine [the]
plaintiff[ ], or (2) affirmatively procured or instigated the
plaintiff's arrest.” King v. Crossland Sav. Bank, 111 F.3d
251, 256 (2d Cir. 1997). A “civilian complainant, by merely
seeking police assistance or furnishing information to law
enforcement authorities who are then free to exercise their
own judgment as to whether an arrest should be made and
criminal charges filed, will not be held liable for false arrest.”
Du Chateau v. Metro-N. Commuter R.R. Co., 253 A.D.2d
128, 131, 688 N.Y.S.2d 12 (1st Dep't 1999). On the other
hand, “a complainant can be held liable for false arrest if
the complainant ‘intentionally provided false information’ to
instigate an arrest by law-enforcement officials, or had no
reasonable basis for the report.” Biswas v. City of New York,
973 F. Supp. 2d 504, 519 (S.D.N.Y. 2013) (quoting Brown
v. Nassau Cty., 306 A.D.2d 303, 303, 760 N.Y.S.2d 655 (2d
Dep't 2003)); see also Grant v. City of New York, No. 15-
cv-3635, 2019 WL 1099945, at *7, 2019 U.S. Dist. LEXIS
37791 (E.D.N.Y. Mar. 8, 2019) (noting that, to be liable for
false arrest, an individual defendant must have “proximately
caused the unlawful arrest” (citations omitted)).
Similarly, the “[i]nitiation” of a criminal proceeding in the
context of a malicious prosecution claim “is a term of art.”
Rohman, 215 F.3d at 217. The “mere reporting of a crime
to police and giving testimony are insufficient; it must be
shown that defendant played an active role in the prosecution,
such as giving advice and encouragement or importuning the
authorities to act.” Id. (quoting DeFilippo v. Cty. of Nassau,
183 A.D.2d 695, 696, 583 N.Y.S.2d 283 (2d Dep't 1992)).
“Giving information to the police that is known to be false
qualifies as the commencement of a prosecution.” Rivers
v. Towers, Perrin, Forster & Crosby Inc., No. 07-cv-5441,
2009 WL 817852, at *3, 2009 U.S. Dist. LEXIS 26301
(E.D.N.Y. Mar. 27, 2009); see also Wong v. Yoo, 649 F. Supp.
2d 34, 65 (E.D.N.Y. 2009) (“[W]here a party is responsible
for providing false information or manufactured evidence
that influences a decision whether to prosecute, he may be
held liable for malicious prosecution.” (quoting Chimurenga
v. City of New York, 45 F. Supp. 2d 337, 343 (S.D.N.Y.
1999))). However, the prosecutor's “exercise of independent
judgment” in initiating a criminal prosecution may break the
chain of causation between the defendant's allegedly unlawful
conduct and the plaintiff's subsequent prosecution. Bernstein
v. City of New York, No. 06-cv-895, 2007 WL 1573910, at
*6, 2007 U.S. Dist. LEXIS 39286 (S.D.N.Y. May 24, 2007)
(citation omitted).
*13 Defendant argues that she is entitled to summary
judgment because she “did not initiate any contact with any
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law enforcement officers”; she “offered no advice, direction,
or encouragement” in the investigative or prosecutorial
process; and Investigator Mackey and DA Hubbard both
“affirmed that their decisions to move forward with the
arrest and the indictment were based on their professional
judgment, alone” and were not based solely on Defendant's
statements. (Dkt. No. 76-2, at 15–16). Therefore, because law
enforcement acted “independently,” Defendant argues she
cannot be held liable. (Id. at 17). In response, Plaintiff argues
that (1) “knowingly and intentionally provid[ing] false and/
or misleading information to the police and/or prosecutors for
the purpose of procuring the plaintiff's arrest or prosecution”
satisfies the “initiation” prong; (2) there is a question of fact
as to who called the police on October 17, 2017; and (3)
Investigator Mackey's and DA Hubbard's affirmations that
they acted on their own professional judgment are “belied
by the record.” (Dkt. No. 80 at 15–21). The Court first
proceeds to consider whether a reasonable jury could find
that Defendant knowingly provided false information to law
enforcement.
1. Statement #1: Plaintiff said she was
teaching J.C. “how to clean the toilet.”
The first false statement Plaintiff claims Defendant made is
that, when Defendant asked what Plaintiff and J.C. were doing
in the bathroom stall, Plaintiff responded: “I was teaching
him how to clean the toilet.” (Dkt. No. 76-10, at 2). Plaintiff
says that Defendant omitted Plaintiff's complete statement
—“I was trying to show him how to clean the bathrooms when
he came up behind me.” (Dkt. No. 76-9, at 145 (emphasis
added)). It appears that there is no dispute that Plaintiff said,
at some point while Defendant was in the Activity Room 4
bathrooms, that she was trying to show J.C. how to clean the
bathrooms. (See Dkt. No. 76-9 at 145 (Plaintiff's testimony
that she remembers saying “I was trying to show him how to
clean the bathrooms”); (Dkt. No. 76-10, at 5 (G.H.’s statement
in his supporting deposition that he heard Plaintiff “try to
tell [Defendant] she was only showing [J.C.] how to clean
the toilet”). However, viewing the evidence in the light most
favorable to Plaintiff, and in combination with the alleged
failure to report that Plaintiff asked for help, discussed below,
Defendant's statement could be found to be false or materially
incomplete to the extent she did not report that Plaintiff said
that J.C. “came up behind [her].”
2. Statements #2 & 3: J.C.’s Statements to Defendant
Plaintiff claims that Defendant falsely reported in her
supporting deposition that J.C. told Defendant that (1) he
“finger popped” Plaintiff and “stuck [his] dick in her two or
three times before you came in” and (2) Plaintiff “coerced
him to have sex.” (See Dkt. No. 76-10, at 2). Defendant
argues that Plaintiff cannot present any evidence that these
statements were false, noting that J.C.’s interview with police
corroborates Defendant's report and that Plaintiff, who was
not witness to any conversation between J.C. and Defendant,
does not know what J.C. said to her. (Dkt. No. 76-2, at
20). Plaintiff responds that J.C.’s interview in which he used
the term “finger popped” did not occur until 3:40 a.m.,
after Defendant gave her statement and accompanied J.C. to
the emergency room; that his original supporting deposition
merely says that J.C. and Plaintiff “began to have sex” in
the bathroom stall; and that there is evidence that J.C. did
not make any statement about “finger popping” while in the
bathroom. (Dkt. No. 80, at 23). 19
During her deposition, when Defendant was asked whether
she had described “every single thing” she recalled having
been said by Plaintiff and J.C in the bathroom, Defendant
stated that she had recounted what she “can remember,” but
she did not mention any statement by J.C. regarding “finger
popping,” his penis, or having been coerced. (See Dkt. No.
76-8, at 84–87). Plaintiff, on the other hand, testified that she
did not hear J.C. say that he “finger popped” her or “stuck his
dick” in her. (Dkt. No. 76-9, at 129; see also id. at 87–90).
While Defendant's supporting deposition to the police does
not specifically indicate that J.C. made these statements to
her while they were in the bathroom, (see Dkt. No. 76-10, at
2), Defendant did testify that she had no had further contact
with J.C. after leaving the bathroom and before giving her
statement to police shortly after 11:00 p.m., (Dkt. No. 76-8, at
111). Viewing all of this evidence in the light most favorable
to Plaintiff, therefore, a reasonable jury could find that J.C.
made no such statements to Defendant before Defendant
provided her supporting deposition to the police.
3. Statement #4: Failing to Report
that Plaintiff Asked for Help
*14 Finally, Plaintiff claims that Defendant failed to report
that Plaintiff asked for her help. Defendant argues that the
evidence shows that Plaintiff did not ask Defendant for
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help, citing to Defendant's own testimony and Plaintiff's
criminal trial testimony that she did not tell Defendant that
she was forced into the bathroom, that she was scared of
the residents, or “anything about what happened.” (Dkt. No.
76-2, at 20–21; Dkt. No. 76-14, at 156–57). Plaintiff notes
that she “unequivocally testified at her deposition” that she
told Defendant “help” and “he is attacking me,” and that
the “apparent inconsistency” in her testimony is an issue of
credibility for the jury. (Dkt. No. 80, at 24 (citing Dkt. No.
76-9, at 87)). 20
While Plaintiff has given contradictory testimony on this
point, it is not the Court's job at this stage to assess
the credibility of the parties. Jeffreys, 426 F.3d at 553–54
(“Assessments of credibility and choices between conflicting
versions of the events are matters for the jury, not for the
court on summary judgment.” (citation omitted)). Viewing
the evidence in the light most favorable to Plaintiff, the
Court concludes that a jury could find that Plaintiff did
ask Defendant for help and indicate that J.C. had assaulted
her, including by virtue of her statement that J.C. “came
up behind” her. If such were the case, the jury could
also conclude that Defendant knowingly reported false
information to law enforcement. Cf. Weintraub v. Bd. of Educ.
of City of N.Y., 423 F. Supp. 2d 38, 56 (E.D.N.Y. 2006)
(denying summary judgment on false arrest claim where
the “truth of what actually occurred” between the parties
was disputed and where, “[i]f a jury were to believe [the
plaintiff's] account, rather than [the defendant's], it would
reasonably infer that [the defendant] knew [the plaintiff]
had not assaulted her, but nonetheless intended to have him
arrested by making false statements to the police”); see also
Biswas, 973 F. Supp. 2d at 519–20 (denying motion to dismiss
false arrest claim where the plaintiff alleged that defendants
caused the plaintiff's arrest while knowing that she was
“actually innocent”).
Accordingly, considering all of Defendant's statements
together, the Court concludes that there is a triable issue of
fact as to whether Defendant knowingly provided false or
materially incomplete information to law enforcement.
4. Causation
The parties dispute whether the information Defendant
provided to law enforcement affected the decision to arrest
or prosecute Plaintiff. See Vlach v. Staiano, 604 F. App'x 77,
78–79 (2d Cir. 2015) (summary order) (affirming grant of
summary judgment to defendant on false arrest claim where,
“even if [the defendant] provided materially incomplete
information to the State Police,” the police “undertook their
own investigation” and independently arrested the plaintiff);
Hill v. City of New York, No. 05-cv-9473, 2007 WL 4592000,
at *4, 2007 U.S. Dist. LEXIS 94969 (S.D.N.Y. Dec. 28,
2007) (finding the initiation element not satisfied where
the plaintiff did not show that the defendants “misled or
pressured” the prosecutor, the prosecutor's actions were
“independent” and “discretionary,” and the prosecutor's
“intervening decision to pursue a criminal charge” broke
the chain of causation). However, even assuming there is
a triable issue of fact as to whether the allegedly false or
materially incomplete information Defendant provided to law
enforcement proximately caused the decisions to arrest and
prosecute Plaintiff, as discussed in the next section, Plaintiff
has failed to raise a material issue of fact as to probable cause.
E. Independent Probable Cause
*15 Defendant argues that she is entitled to summary
judgment on both of Plaintiff's claims because the police
and the prosecutor had probable cause—which is a complete
defense to the claims of false arrest and malicious prosecution
—to arrest and prosecute Plaintiff. (Dkt. No. 76-2, at
23–26). Defendant argues that Plaintiff cannot rebut the
presumption of probable cause created by a grand jury
indictment and that there was “ample probable cause created
by the evidence” other than Defendant's allegedly false and
materially incomplete statements. (Id.). Plaintiff responds that
a reasonable jury could find that Investigator Mackey “would
have objectively lacked reasonable cause to arrest” Plaintiff
if Defendant “had told the truth” and that Defendant's false
reports to authorities “undermined the prosecutorial process,
thereby rebutting the presumption of probable cause” created
by the indictment. (Dkt. No. 80, at 25–27).
The Court notes at the outset that, while the existence of
probable cause is a complete defense to both of Plaintiff's
claims, the parties’ arguments do not meaningful distinguish
between probable cause to arrest and probable cause to
prosecute. These are two distinct inquiries, Li v. City of New
York, 246 F. Supp. 3d 578, 611 (E.D.N.Y. 2017), and the
presumption of probable cause that arises after indictment
by a grand jury is only that of probable cause to prosecute,
see Bertuglia v. City of New York, 133 F. Supp. 3d 608, 636
(S.D.N.Y. 2015) (noting that “the probable cause presumption
arising from a grand jury indictment does not apply to a false
arrest action”). The Court therefore addresses probable cause
as to each of Plaintiff's claims separately.
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1. Arrest
Probable cause to arrest exists when “one has knowledge
of, or reasonably trustworthy information as to, facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that an offense has been
or is being committed by the person to be arrested.” Betts
v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014). The inquiry
focuses on the “facts known by the arresting officer at the time
of the arrest” and whether those facts “objectively provided
probable cause to arrest.” Ackerson v. City of White Plains,
702 F.3d 15, 19–20 (2d Cir. 2012) (citation omitted). A
defendant will prevail if there was probable cause to arrest
the plaintiff “for any single offense,” regardless of the charge
actually invoked by the arresting officer. Id. at 20 (citations
omitted).
Here, the undisputed record evidence shows that the State
Police had probable cause to arrest Plaintiff based on
the facts and circumstances known to them at the time
of Plaintiff's arrest independent of Defendant's allegedly
false statements. Although Plaintiff argues that Investigator
Mackey's declaration asserts that the decision to arrest her was
“based on several purported facts of which he was not actually
aware at the time she was arrested,” she cites to portions
of his declaration which clearly relate to the investigation
following her arrest. (Dkt. No. 80, at 18–19 (citing, e.g., Dkt.
No. 76-5, ¶¶ 13, 18–19, 30)). It is undisputed that State Police
responded to the YLA; interviewed at least Defendant, J.C.,
and G.H.; and reviewed surveillance video footage before
arresting Plaintiff. (Dkt. No. 76-5, ¶¶ 5–12; Dkt. No. 76-10, at
2, 3, 5). Based on these interviews, and excluding Defendant's
allegedly false or materially incomplete statements, the State
Police knew, at a minimum, that (1) Defendant had found
Plaintiff and J.C. in a bathroom stall in a sexual situation; 21
(2) J.C. and G.H. gave similar descriptions of the incident
and both reported that J.C. and Plaintiff also had a prior
sexual encounter the night before; and (3) J.C. reported that
he and Plaintiff “began to have sex” in the bathroom stall.
(See Dkt. No. 76-5, ¶¶ 6–11; Dkt. No. 76-10, at 2, 3, 5). Given
the ages of Plaintiff and J.C., these facts and circumstances
are objectively “sufficient to warrant a person of reasonable
caution in the belief” that Plaintiff had committed an offense.
Betts, 751 F.3d at 82; see N.Y. Penal Law § 130.25(2) (“A
person is guilty of rape in the third degree when ... [b]eing
twenty-one years old or more, he or she engages in sexual
intercourse with another person less than seventeen years
old.”); Alexander v. City of Syracuse, No. 17-cv-1195, 573
F.Supp.3d 711, 2021 WL 5628726, at *14, 2021 U.S. Dist.
LEXIS 229639 (N.D.N.Y. Dec. 1, 2021) (noting that “a
victim's complaint alone is often enough to establish probable
cause” to arrest).
*16 Plaintiff disputes Investigator Mackey's statement that
the police interviewed her at the YLA and that she “gave very
little information” and “did not claim she was being sexually
assaulted.” (See Dkt. No. 76-5, ¶ 8). According to Plaintiff,
she was not interviewed at the YLA. (Dkt. No. 80-6, ¶ 23(f)).
However, this dispute of fact does not preclude summary
judgment. Even accepting Plaintiff's statement that she was
not interviewed at the YLA, it remains undisputed that the
police were aware of the above facts and circumstances at
the time of her arrest, and it is undisputed that Plaintiff
did not tell law enforcement that J.C. had assaulted her
prior to her arrest. (See Dkt. No. 80-6, ¶ 17). Plaintiff
also disputes what information was known to Investigator
Mackey at the time he interviewed her at the barracks,
and specifically whether he had reviewed the surveillance
footage. (Dkt. No. 80, at 18). 22 At the criminal trial, in
response to a question regarding evidence that he had when
he interviewed Plaintiff at the barracks—by which time she
had already been arrested—Investigator Mackey stated that
he had “depositions.” (Dkt. No. 80-4, at 5–6). This is not
necessarily inconsistent with his statement that the police
who responded to the YLA “review[ed] security footage” and
“reported their findings” to him before he instructed them to
arrest Plaintiff. (Dkt. No. 76-5, ¶¶ 11–12). The surveillance
video generally corroborates the accounts of Defendant, J.C.,
and G.H., and at the very least is not inconsistent with those
reports. (Dkt. No. 76-13). Accordingly, the Court concludes
that probable cause existed to arrest Plaintiff.
Finally, Plaintiff argues that the police would not have had
probable cause to arrest her if Defendant “had told the
truth.” (Dkt. No. 80, at 25, 27). As discussed, however,
probable cause existed even in the absence of the allegedly
false or materially incomplete information: the police had
probable cause to arrest Plaintiff even if Defendant had
reported that Plaintiff asked for help given J.C.’s report that
he and Plaintiff “began to have sex” and other corroborating
evidence.
Accordingly, because probable cause existed for Plaintiff's
arrest, Defendant is entitled to summary judgment on
Plaintiff's false arrest claim.
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2. Prosecution
Probable cause to prosecute consists of “such facts and
circumstances as would lead a reasonably prudent person to
believe the plaintiff guilty.” Boyd v. City of New York, 336
F.3d 72, 76 (2d Cir. 2003). Probable cause to prosecute is
“evaluated in light of the facts known or reasonably believed
at the time the prosecution was initiated, as opposed to at
the time of arrest.” Li, 246 F. Supp. 3d at 611 (citation and
internal quotation markets omitted). An indictment by a grand
jury creates a presumption of probable cause to prosecute.
Boyd, 336 F.3d at 76. This presumption of probable cause
is rebuttable only by a showing that “the indictment was
produced by fraud, perjury, the suppression of evidence[,]
or other police conduct undertaken in bad faith.” Rothstein
v. Carriere, 373 F.3d 275, 283 (2d Cir. 2004) (quoting
Colon v. City of New York, 60 N.Y.2d 78, 83, 468 N.Y.S.2d
453, 455 N.E.2d 1248 (1983)). Thus, “unless the plaintiff
can demonstrate that the proceedings before the grand jury
were tainted, an indictment extinguishes the [malicious
prosecution] claim.” Id. at 290. Where the plaintiff's only
evidence to rebut the presumption of probable cause is her
own version of events, courts find such evidence “to be
nothing more than mere conjecture and surmise that the
plaintiff's indictment was procured as a result of conduct
undertaken by the defendants in bad faith.” Brandon v. City of
New York, 705 F. Supp. 2d 261, 273 (S.D.N.Y. 2010) (citation,
internal quotation marks, and brackets omitted); see id.
(explaining that the Second Circuit has set forth a “competing
testimony plus” standard to rebut the presumption requiring
a plaintiff to adduce evidence corroborating her own version
of events (citing Boyd, 336 F.3d at 77)).
Here, Plaintiff has not adduced evidence to rebut the
presumption of probable cause for her prosecution which was
created by the grand jury indictment. While the entirety of the
grand jury transcript and presentation is not before the Court,
Defendant's testimony is. (Dkt. No. 80-3, at 9–30). Plaintiff
argues that a reasonable jury could find that Defendant's
“knowingly false reports to the authorities” “undermined the
prosecutorial process, thereby rebutting the presumption of
probable cause erected by the Grand Jury indictment,” (Dkt.
No. 80, at 26), but she does not explain how the proceedings
before the grand jury were “tainted,” Rothstein, 373 F.3d at
290. Notably, Defendant did not repeat the three allegedly
false statements from her supporting deposition before the
grand jury, and Plaintiff herself testified before the grand jury.
(See Dkt. No. 80-3, at 3, 9–30).
*17 To the extent Plaintiff argues that Defendant failed
to report to the grand jury that Plaintiff pleaded for help,
that fact is insufficient to rebut the presumption of probable
cause. First, under the “competing testimony plus” standard,
Plaintiff has pointed to no evidence corroborating her own
testimony that she did ask Defendant for help on October 17.
Cf. Peterson v. Regina, 935 F. Supp. 2d 628, 643 (S.D.N.Y.
2013) (granting summary judgment on malicious prosecution
claim where the plaintiff did not present any “competing
testimony plus” and therefore did not rebut the presumption of
probable cause). Second, even assuming that Defendant failed
to report Plaintiff's pleas for help, and that she did so in bad
faith, there is no evidence from which a reasonable factfinder
could conclude that probable cause to prosecute would not
have existed even in the absence of this omission. See De
Lourdes Torres v. Jones, 26 N.Y.3d 742, 762, 47 N.E.3d 747
(2016) (noting that a plaintiff may show malice and rebut the
presumption of probable cause “with proof that the defendant
falsified evidence in bad faith and that, without the falsified
evidence, the authorities’ suspicion of the plaintiff would not
have fully ripened into probable cause” (emphasis added)).
The record reflects that, in addition to Defendant, the grand
jury heard testimony from J.C., Mr. Baker, Director Smith,
Investigator Mackey, and Plaintiff herself, although the bulk
of that testimony is not in the record. (Dkt. No. 80-3, at 3).
Plaintiff has not pointed to evidence which would rebut the
presumption of probable cause for her prosecution or “erode
the premise that the Grand Jury acts judicially.” Cf. Rothstein,
373 F.3d at 284–85 (directing entry of judgment for defendant
where plaintiff had “no idea what happened before the grand
jury”).
Accordingly, because Plaintiff has not presented evidence to
rebut the presumption of probable cause for her prosecution,
Defendant is entitled to summary judgment on Plaintiff's
malicious prosecution claim. 23
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Defendant's motion for summary judgment
(Dkt. No. 76) is GRANTED; and it is further
ORDERED that Plaintiff's Fourth Amendment claims for
false arrest and malicious prosecution are dismissed with
prejudice; and it is further
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ORDERED that the Clerk of the Court is directed to close
this case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 3212075
Footnotes
1 The facts are drawn from Defendant's Statement of Material Facts, Plaintiff's Counterstatement of Material
Facts, and the parties’ respective responses, (Dkt. Nos. 76-1, 80-1, 86-1), to the extent the facts are well-
supported by pinpoint citations to the record, as well as the exhibits attached thereto and cited therein. The
facts are construed in the light most favorable to Plaintiff as the non-moving party. Gilles v. Repicky, 511
F.3d 239, 243 (2d Cir. 2007).
2 J.C. and G.H., who were minors at the time of the relevant events, are referred to in court filings by their initials.
3 The utility belt, which was part of employees’ uniforms and held their radio and keys, was made of a hard
material. (Dkt. No. 76-1, ¶ 18; Dkt. No. 80-1, ¶ 18). According to New York State Police Investigator Brian
Mackey, removing the belt involved undoing “several snaps and tak[ing] off a center piece,” requiring “effort
and knowledge.” (Dkt. No. 76-5, ¶ 29). According to Plaintiff, the belt had two plastic ends and clasped by
sliding one end into the other, and removing the belt was easy. (Dkt. No. 76-9, at 54; Dkt. No. 80-6, ¶ 4).
4 Plaintiff acknowledges that both her and J.C.’s pants were down when Defendant opened the stall door. (Dkt.
No. 76-9, at 86–87). Plaintiff has never claimed that Defendant witnessed J.C. attacking or assaulting her in
any way, and the Court therefore does not credit language in Plaintiff's opposition suggesting that she did.
(E.g., Dkt. No. 80, at 16 (suggesting that Defendant “witness[ed] J.C. assaulting” Plaintiff), 25 (suggesting
that Defendant “observed that [Plaintiff] was the victim”)).
5 At her criminal trial, Plaintiff testified that she did not tell Defendant that she was forced into the bathroom,
that she was hurt, or “anything about what happened.” (Dkt. No. 76-14, at 156–57).
6 Defendant reacted emotionally to what she saw in the bathroom stall. (See Dkt. No. 76-8, at 86, 88).
Defendant has subsequently admitted that she should not have left Plaintiff and J.C. alone, and she was
written up for doing so. (Id. at 99–102).
7 Defendant later took J.C. to the emergency room, after she had spoken with police. (Dkt. No. 76-8, at 110–
11, 121–22).
8 Plaintiff disputes Defendant's statement that J.C. and G.H. had been “immediately separated by staff,” (Dkt.
No. 76-1, ¶ 38), as they were left in Activity Room 4 with Plaintiff and then accompanied back to their housing
unit by Mr. Liberi.
9 According to Investigator Mackey, the State Police's investigation “revealed that several days prior to the
incident, counselors Vincent Baker and Teddy Watson had confiscated a pair of women's underwear from
JC's room. Mr. Baker returned the underwear to JC without any disciplinary consequences.” (Dkt. No. 76-5,
¶ 22). In a supporting deposition, Mr. Baker stated that he conducted a room search on October 13 and “did
not find any contraband” in J.C.’s room. (Dkt. No. 76-10, at 6). Mr. Baker was “terminated for lying during the
investigation.” (Dkt. No. 76-6, ¶ 16). Plaintiff denies ever giving any underwear to J.C. (Dkt. No. 80-6, ¶ 19).
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10 As Defendant points out, however, Plaintiff testified at her criminal trial that only Mr. Howland, Defendant,
and a police officer came into the room while she was there. (Dkt. No. 76-14, at 141–43).
11 According to Investigator Mackey, the surveillance video depicts Plaintiff emerging from the bathroom stall
calmly: “she was not acting like someone who had just been assaulted.” (Dkt. No. 76-5, ¶ 19).
12 Investigator Mackey states that he “found no evidence” that J.C. used force against Plaintiff, noting that
Plaintiff's utility belt was “intact” and her “clothes were not torn.” (Dkt. No. 76-5, ¶ 29; see also Dkt. No. 76-4,
¶ 21 (District Attorney John Hubbard attesting to the same)). According to Plaintiff, her belt was “damaged
slightly.” (Dkt. No. 80-6, ¶ 23(d)). While she was able to put the belt back on after the incident, as the
surveillance video shows, “it did not hold as tight as before.” (Id.; Dkt. No. 76-13).
Investigator Mackey also states that the investigation revealed that Plaintiff had “an unusual pattern of
requesting permission to take JC and GH cleaning” and that she had been found “alone [with J.C. and G.H.]
in a room with the lights dimmed.” (Dkt. No. 76-5, ¶ 20; see Dkt. No. 76-9, at 65–67). The Court does not
consider this information with respect to whether there was probable cause to arrest or prosecute Plaintiff
because the record does not reflect when this part of the investigation occurred.
13 Statements (1) through (3) are found in Defendant's supporting deposition. (Dkt. No. 76-10, at 2). There is
no evidence before the Court suggesting that Defendant claimed that Plaintiff had begged her not to report
the incident or expressed concern over losing her job, and the parties do not discuss this statement in their
briefs. Accordingly, the Court does not address statement (5) further.
14 The Justice Center's report is dated March 12, 2021 and predates Defendant's motion for summary judgment.
(See Dkt. No. 79-12). However, Plaintiff did not withdraw her appeal of that determination until March 1, 2022,
after Defendant's motion was filed. (See Dkt. No. 86-2, at 4). Plaintiff submitted a sur-reply to respond to
Defendant's preclusion argument. (Dkt. No. 87).
15 “A federal court must apply the collateral estoppel rules of the state that rendered a prior judgment on the
same issues currently before the court.” LaFleur v. Whitman, 300 F.3d 256, 271 (2d Cir. 2002).
16 The Court does not reach the parties’ arguments as to whether Plaintiff had a “full and fair opportunity” to
litigate the issue of whether she sexually abused a minor.
17 Notably, Defendant argues elsewhere that Plaintiff's claims fail because she is a mandatory reporter and was
obligated to report what she saw under penalty of state liability. Such an obligation arises only by virtue of
Defendant's employment.
18 The Court therefore does not address Plaintiff's alternative argument that Defendant was “jointly engaged
with state officials.” (Dkt. No. 80, at 29).
19 Plaintiff argues that the “sequence of events,” with Defendant's giving these statements at 11:33 p.m. while
J.C. did not make similar comments until his 3:40 a.m. interview and after Defendant had transported him to
the hospital, “suggests [Defendant] coached J.C. so that their statements would match.” (Dkt. No. 80, at 23).
20 Defendant argues that Plaintiff may not defeat summary judgment by submitting an affidavit that contradicts
her prior sworn testimony. (Dkt. No. 86, at 6–8). The Court concludes that the “sham issue of fact” doctrine is
not applicable here. See Chichinadze v. BG Bar Inc., 517 F. Supp. 3d 240, 248 (S.D.N.Y. 2021) (summarizing
the doctrine). While Plaintiff's newly submitted declaration contradicts her criminal trial testimony, it is
consistent with her deposition testimony. (See Dkt. No. 80-6, ¶ 15 (“I followed Copeland toward the door,
begging her not to leave and asking for help, indicating again that[ ] J.C. had pushed me into the stall and
attacked me.”); Dkt. No. 76-9, at 87 (testifying at deposition that she said “help” and “he is attacking me”)).
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The declaration therefore does not raise a factual issue “only after discovery is closed and in response to
the other side's motion for summary judgment.” Savarese v. City of New York, 547 F. Supp. 3d 305, 328
(S.D.N.Y. 2021) (citing Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000)).
21 (See also Dkt. No. 76-9, at 141–42 (Plaintiff acknowledging at her deposition that Defendant “saw [her] in the
bathroom stall with J.C. with his pants down and with [her] pants down” and that Defendant was obligated
to “report that”)).
22 Contrary to Plaintiff's argument, Investigator Mackey's declaration does not state that he relied on any
physical evidence in deciding to arrest Plaintiff.
23 Because Defendant is entitled to summary judgment on Plaintiff's malicious prosecution claim, the Court
need not consider the parties’ arguments regarding malice.
Plaintiff requests that the Court read a state-law malicious prosecution claim into her complaint. (Dkt. No.
80, at 29 n.5). However, even if the Court were to consider this request, a state-law malicious prosecution
claim would fail for the same reasons Plaintiff's Section 1983 malicious prosecution claim fails. See supra
Section IV.E; Manganiello v. City of New York, 612 F.3d 149, 160–61 (2d Cir. 2010) (noting that, to prevail on
a Section 1983 malicious prosecution claim, a plaintiff must, inter alia, “establish the elements of a malicious
prosecution claim under state law,” including “lack of probable cause for commencing the proceeding”).
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Moye v. City of New York, Not Reported in F.Supp.2d (2012)
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2012 WL 2569085
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Ronald MOYE, Plaintiff,
v.
The CITY OF NEW YORK; Sgt. Nelson Caban,
P.O. Paul Jeselon, P.O. Samuel Fontanez, P.O.
Edward Simonetti, P.O. Matthew Boorman, P.O.
Frank Papa, P.O. Tawaina O'Neal, P.O. Brennan;
P.O. John; and A.D.A. Dustin Chao, Defendants.
No. 11 Civ. 316(PGG).
|
July 3, 2012.
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge.
*1 Plaintiff Ronald Moye has brought claims against the
City of New York, former New York County Assistant
District Attorney Dustin Chao, and eight members of the New
York City Police Department (“NYPD”) under 42 U.S.C.
§ 1983 and state law. Moye claims that Chao is liable for
damages under Section 1983 and state law for malicious
prosecution, abuse of process, denial of a fair trial, fabrication
of evidence, conspiracy “to inflict an unconstitutional injury,”
and intentional and negligent infliction of emotional distress.
(Am. Cmplt., Second, Third, Fourth, Fifth, Sixth, Seventh,
and Ninth Claims) Chao has moved to dismiss the Amended
Complaint on grounds of absolute immunity. For the reasons
stated below, Chao's motion to dismiss will be granted.
BACKGROUND
For purposes of deciding Defendant Chao's motion to dismiss,
the Court has assumed that the following facts presented in
the Amended Complaint are true.
I. MOYE'S ARREST
On or about March 12, 2002, at approximately 8:00
p.m., NYPD officers Paul Jeselson and Tawaina O'Neal
were stationed on the rooftop of an apartment building
on the south side of West 118th Street near the corner
of Morningside Avenue conducting nighttime narcotics
surveillance. (Am.Cmplt.¶¶ 19, 22) Plaintiff's car was located
on the north side of West 118th Street, near Manhattan
Avenue. (Id. ¶ 21) Officer Jeselson claimed that he observed
Plaintiff “extend his hand from the driver's side window and
hand a small glassine” to another individual—later arrested
—who, in turn, handed it to an unapprehended customer. (Id.
¶ 20) The Defendant officers moved in and arrested Moye in
the vicinity of 352 West 118th Street. (Am.Cmplt.¶¶ 12, 25)
At the time of the arrest, and later at the 28th Precinct, the
officers searched Moye and his car and found United States
currency, both in Moye's possession and inside the vehicle.
(Id. ¶ 27) The Defendant officers unnecessarily grabbed
Moye, pushed him, and placed excessively tight handcuffs on
him (id. ¶ 30), causing him to suffer bruises to and numbness
in his wrists. (Id. ¶ 32)
Moye was indicted on March 22, 2002, for Criminal
Possession of a Controlled Substance in the Third Degree.
(Am. Cmplt. ¶ 35; Schwartz Decl., Ex. A) Plaintiff alleges that
the police officer defendants “conspired [to give] and gave
false testimony and intentionally placed false evidence before
the grand jury.” 1 (Am.Cmplt.¶ 35)
II. MOYE'S FIRST TRIAL
Moye's first trial began on January 14, 2003. (Schwartz Decl.,
Ex. B) A.D.A. Chao introduced photographs at trial which
he claimed showed the position of Plaintiff s car as it was
parked on West 118th Street. (Am.Cmplt.¶ 38) Chao, Officer
Jeselson, and Officer Papa were present when a District
Attorney's office photographer took these photos in June 2002
from the March 12, 2002 observation point. (Id. ¶¶ 41–42,
44) Although the photographs were intended to convey the
vantage point of the officers on the night of the arrest, they did
not replicate the “nighttime conditions.” (Id. ¶ 45) According
to Moye, these photographs nonetheless showed that the
officers could not have seen Plaintiff extend his hand from
the driver's side window and pass a small glassine to another
individual, because the driver's side could not be seen from
the vantage point of the rooftop observation post, even with
binoculars. (Id. ¶¶ 46, 48) At trial, Officer Jeselson admitted
that “he was not able to see the driver's side of the vehicles in
the photographs.” (Id. ¶ 47) Jeselson nonetheless claimed that
he had been able to see Moye's hand “during the nighttime
observation.” (Id. ¶ 39) The first trial ended in a mistrial, with
the jury unable to reach a verdict. (Id. ¶ 49)
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III. MOYE'S SECOND TRIAL
*2 In February 2003, A.D.A. Chao, Officers Brennan
and Jeselson, and D.A's Office photographer Nancy Badger
returned to West 118th Street to take more photographs. (Id.
¶ 53) They repositioned the car on an angle in order to make
it appear that the officers would have been able to see Moye's
hand outside the driver's side window on the night of his
arrest. (Id. ¶¶ 55–60) With the car positioned in this fashion,
Jeselson and Chao instructed Badger to take photographs of
Officer Brennan's hand outside the driver's side window in an
effort to simulate what the officers would have seen that night.
(Id. ¶¶ 60–61) Jeselson and Chao then had Brennan move the
car back to a curbside position “where additional photographs
[were] taken at a wide angle to falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶ 63)
At Moye's second trial, Chao introduced these new
photographs and elicited testimony from Jeselson in which
he used the photographs to support his claim that he was
able to see Moye's hand from the rooftop observation post.
(Id. ¶¶ 66, 74) However, Badger testified that, in taking
the new photographs, “the defendants moved the vehicle
to an angle where the hand could be visible.” Defendants
then returned the vehicle to its curbside position and took
additional photographs that “falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶¶ 81–84)
In summation, Moye's lawyer argued that Jeselson had lied
about his observations from the roof and the positioning of
the car in the photographs introduced by the prosecution.
(Id. ¶ 85) In response, A.D.A. Chao argued that Officer
Jeselson had no opportunity to frame the defendant, because
Chao had been present at the observation post:
“[Defense counsel] spoke about people on that roof.
It's in evidence. Officer Jeselson was on that roof, the
photographer Laura Badger was on the roof, and I was on
that roof. Now, if he is directing something improperly, that
is Officer Jeselson, well, it's in front of me.
“And if he knew he was going to get away with it when
I say that's the opportunity, you know [defense counsel]
talked about a lot of people losing their jobs about perjuring
themselves, about the integrity of Robert Morgenthau's
office. Well, if Officer Jeselson thought he was going to get
away with it—
“[DEFENSE counsel]: Mr. Chao is vouching for his
witness.
“THE COURT: Overruled.
“[ADA] CHAO: If Officer Jeselson thought he was going
to get away with it with me present, all that talk about firing,
that should be me because I'm prosecuting this case, not
Officer Jeselson.
“[DEFENSE counsel]: That's objectionable vouching for
his witness.
“THE COURT: Overruled.
“[DEFENSE counsel]: Your Honor, he is making himself
an unsworn witness for the credibility of his police officer.
*3 “THE COURT: Overruled.
“[ADA] CHAO: Ladies and gentlemen, Mr. Morgenthau
should fire me if Officer Jeselson thinks he is going to be
able to say that in court, lie to you, when the person who
is standing right next to him on that roof is me. Well, that
lies with me.
“So what's the explanation? If there's no motive, no
opportunity for why Ms. Badger remembers it differently.
Well, there's evidence that you heard the officer was on the
roof. Evidence that you heard I was on the roof also. I have
no other answer other than the fact that she is mistaken....
“[DEFENSE counsel]: He is vouching for his witness using
the pronoun I.
“THE COURT: Members of the jury, you can accept his
argument as to what happened on the roof. It's his argument
based upon the evidence as he recalls it.”
People v. Move, 52 A.D.3d 1, 5 (1st Dep't 2008); see also
(Am. Cmplt. ¶¶ 87–92.
Moye was convicted at his second trial and sentenced to four-
and-a-half to nine years' imprisonment. (Am.Cmplt.¶¶ 13–14)
IV. THE CHARGES AGAINST MOYE ARE DISMISSED
On appeal, the First Department vacated the conviction in
a 3–2 decision. People v. Move, 52 A.D.3d 1. The First
Department found that “the prosecutor improperly vouched
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for his witness and interjected his personal integrity and the
veracity of the District Attorney's office into his summation to
support the credibility of Police Office Jeselson.” Id. at 6. The
New York Court of Appeals agreed that Chao had engaged in
impermissible vouching for his witness, affirmed the reversal
of the conviction, and remanded the case to Supreme Court.
People v. Move, 12 N.Y.3d 743, 744 (2009). After remand,
the New York County District Attorney's Office dismissed the
case on October 21, 2009. (Am.Cmplt.¶¶ 16, 37)
DISCUSSION
I. IMMUNITY
Chao argues that the claims against him must be dismissed
because his actions are protected by absolute immunity. 2
Section 1983 “purports to create a damages remedy against
every state official for the violation of any person's federal
constitutional or statutory rights.” Kalina v. Fletcher, 522
U .S. 118, 123 (1997). In order to state a claim under Section
1983, a plaintiff must show that the conduct complained
of was committed by a person or entity acting under color
of state law, and that the conduct deprived a person of
rights, privileges, or immunities secured by the Constitution.
Newton v. City of New York, 566 F.Supp.2d 256, 269–70
(S.D.N.Y.2008) (citing Palmieri v. Lynch, 392 F.3d 73, 78 (2d
Cir.2004)).
“Although section 1983 imposes liability upon every person
who deprives another of a constitutional right under color of
state law, the doctrines of absolute and qualified immunity
shield prosecutors and law enforcement officers from liability
related to their official acts.” Day v. Morgenthau, 909 F.2d
75, 77 (2d Cir.1990). While Section 1983 does not explicitly
provide for such immunity, the Supreme Court and Second
Circuit have ruled that “Congress did not intend § 1983 to
abrogate immunities ‘well grounded in history and reason.’ “
Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1147 (2d Cir.1995)
(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)).
*4 As the Second Circuit has explained:
Such immunities are of two types: absolute and qualified.
Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct.
2606, 125 L.Ed.2d 209 (1993). Absolute immunity is
reserved for officials who perform “special functions” and
deserve absolute protection from damages liability. Among
these are prosecutors, and persons working under their
direction, when they function as advocates for the state
in circumstances “intimately associated with the judicial
phase of the criminal process.” Imbler v. Pachtman, 424
U.S. at 430–31. See also Hill v. City of New York, 45 F.3d at
660 (extending absolute prosecutorial immunity to persons
acting under the direction of prosecutors in performing
functions closely tied to the judicial process).
By contrast, only qualified immunity applies to law
enforcement officials, including prosecutors, when they
perform investigative functions. Buckley v. Fitzsimmons,
509 U.S. at 273. (“When a prosecutor performs the
investigative functions normally performed by a detective
or police officer, it is neither appropriate nor justifiable
that, for the same act, immunity should protect the one
and not the other.”) (internal quotation marks and citations
omitted); accord Zahrey v. Coffey, 221 F.3d 342, 349 (2d
Cir.2000).
Bernard v. Cnty. of Suffolk, 356 F.3d 495, 502–03 (2d
Cir.2004).
Absolute immunity extends only so far as necessary to protect
the judicial process. Hill v. City of New York, 45 F.3d 653, 660
(2d Cir.1995). Nonetheless,
[t]he doctrine of absolute prosecutorial immunity creates
a formidable obstacle for a plaintiff seeking to maintain a
civil rights action against a district attorney, as it provides
that “prosecutors are absolutely immune from liability
under § 1983 for their conduct in ‘initiating a prosecution
and in presenting the State's case,’ insofar as that conduct
is ‘intimately associated with the judicial phase of the
criminal process.’ “ Burns v. Reed, 500 U.S. 478, 486, 111
S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991) (quoting Imbler,
424 U.S. at 430–31, 96 S.Ct. at 995).
Pinaud, 52 F.3d at 1147. The Court addresses the parameters
of absolute prosecutorial immunity below.
A. Legal Standard for Absolute Prosecutorial Immunity
A prosecutor who, as here, is sued in his or her individual
capacity, may assert absolute or qualified immunity as
a defense. Courts may grant a Rule 12(b)(6) motion to
dismiss on grounds of absolute immunity where the facts
establishing the defense appear in the complaint. Deronette
v. City of New York, No. 05 CV 5275(SJ), 2007 WL 951925,
at *4 (E.D.N.Y. Mar. 27, 2007) (citing Hill, 45 F.3d at
663) (absolute immunity may be decided on a Rule 12(b)
(6) motion where facts establishing the defense may be
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“gleaned from the complaint”)). Moreover, district courts
are encouraged to determine the applicability of an absolute
immunity defense at the earliest appropriate stage, and
preferably before discovery. 3 Id. (citing Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)); United States v. Colbert, No. 87
Civ. 4789, 1991 WL 183376 at *4 (S.D.N.Y. Sept. 11, 1991).
This approach is appropriate given that “absolute immunity
defeats a suit at the outset, so long as the official's actions
were within the scope of the immunity.” Imbler, 424 U.S. at
419 n. 13. “[T]he official seeking absolute immunity bears
the burden of showing that such immunity is justified for the
function in question.” Buckley, 509 U.S. at 270 (1993) (citing
Burns, 500 U.S. at 486).
*5 Prosecutorial immunity to Section 1983 claims is
grounded in the immunity to tort liability that prosecutors
enjoy under the common law. Flagler v. Trainor, 663 F.3d
543, 546 (2d Cir.2011) That immunity arises from the
“concern that harassment by unfounded litigation would
cause a deflection of the prosecutor's energies from his public
duties, and the possibility that he would shade his decisions
instead of exercising the independence of judgment required
by his public trust.” Id. (citing Imbler, 424 U.S. at 423).
Immunity protects the proper functioning of the prosecutor's
office by insulating the exercise of prosecutorial discretion.
Kalina, 522 U.S. at 125. Prosecutors are therefore “absolutely
immune from suit only when acting as advocates and when
their conduct involves the exercise of discretion.” Flagler,
663 F.3d at 546 (citing Kalina, 522 U.S. at 127).
The Supreme Court addressed the question of absolute
immunity for prosecutors in Imbler, where it held that
prosecutors are entitled to absolute immunity for damage suits
under Section 1983 for all acts “intimately associated with the
judicial phase of the criminal process,” including “initiating
a prosecution and ... presenting the State's case [at trial].”
Imbler, 424 U.S. at 430.
Later, in Buckley, 509 U.S. at 273, the Supreme Court
considered whether the prosecutor defendants were entitled to
absolute immunity for “investigative” work they performed
well before seeking an indictment, involving an effort to
connect the plaintiff to a bootprint left at a murder scene.
Although the Court rejected the prosecutors' claim for
absolute immunity, the Court cautioned that it had
not retreated ... from the principle
that acts undertaken by a prosecutor
preparing for the initiation of judicial
proceedings or for trial, and which
occur in the course of his role
as an advocate for the State, are
entitled to the protections of absolute
immunity. Those acts must include
the professional evaluation of the
evidence assembled by the police
and appropriate preparation for its
presentation at trial or before a grand
jury after a decision to seek an
indictment has been made.
Buckley, 509 U.S. at 273 (internal citations and quotations
omitted).
Whether a prosecutor has absolute immunity for a particular
act thus “depends principally on the nature of the function
performed, not on the office itself.” Ying Jing Gan v. City of
New York, 996 F.2d 522, 530 (2d Cir.1993). “Such functions
include the decision to bring charges against a defendant,
presenting evidence to a grand jury, and the evaluation of
evidence prior to trial.” Johnson v. City of New York, No. 00
CIV 3626(SHS), 2000 WL 1335865, at *2 (S.D.N.Y. Sept.
15, 2000) (citing Kalina, 522 U.S. at 126). Furthermore,
this “application of immunity is not limited to the duties a
prosecutor performs in the courtroom.” Dory v. Ryan, 25 F.3d
81, 83 (2d Cir.1994) (citing Buckley, 509 U.S. at 272).
*6 “[A] district attorney is [not only] absolutely immune
from civil liability for initiating a prosecution and presenting
the case at trial,” but also “immune for conduct in preparing
for those functions; for example, evaluating and organizing
evidence for presentation at trial or to a grand jury, or
determining which offenses are to be charged.” Hill, 45
F.3d at 661 (citations omitted). Prosecutorial immunity from
Section 1983 damages liability is broadly defined, covering
“virtually all acts, regardless of motivation, associated with
[the prosecutor's] function as an advocate.” Dory, 25 F.3d at
83. The Second Circuit has been “mindful of the Supreme
Court's admonition that ‘the duties of the prosecutor in his
role as advocate for the State involve actions preliminary
to the initiation of a prosecution and actions apart from
the courtroom.... Preparation, both for the initiation of the
criminal process and for a trial, may require the obtaining,
reviewing, and evaluating of evidence.’ “ Barbera v. Smith,
836 F.2d 96, 100 (2d Cir.1987) (quoting Imbler, 424 U.S.
at 431 n. 33); see also Barrett v. United States, 798 F.2d
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565, 571 (2d Cir.1986) (“The absolute immunity accorded
to government prosecutors encompasses not only their
conduct of trials but all of their activities that can fairly
be characterized as closely associated with the conduct of
litigation or potential litigation....”)
Because absolute immunity extends broadly to all acts
committed by a prosecutor in his or her role as an advocate, it
protects prosecutors against claims that they conspired to, or
actually presented, fabricated evidence at trial:
absolute immunity protects a prosecutor from § 1983
liability for virtually all acts, regardless of motivation,
associated with his function as an advocate. This would
even include ... allegedly conspiring to present false
evidence at a criminal trial. The fact that such a conspiracy
is certainly not something that is properly within the role
of a prosecutor is immaterial, because “[t]he immunity
attaches to his function, not to the manner in which he
performed it.” Barrett v. United States, 798 F.2d 565, 573
(2d Cir.1986); see also Daloia v. Rose, 849 F.2d 74, 75
(2d Cir.1988) (per curiam ) (holding ... that prosecutor was
immune from § 1983 liability for knowingly presenting
false testimony). As much as the idea of a prosecutor
conspiring to falsify evidence [is disturbing] ... there is
a greater societal goal in protecting the judicial process
by preventing perpetual suits against prosecutors for the
performance of their duties. See Imbler, 424 U.S. at 426–
428.
Dory, 25 F.3d at 83. 4
Although courts have declined to establish a bright-line
test based on the stage of a criminal proceeding, “absolute
prosecutorial immunity has generally been found in cases
where some type of formal proceeding had been commenced
or was being commenced by the conduct at issue.” Tabor v.
New York City, No. 11 CV 0195 FB, 2012 WL 603561, at
*4 (E.D.N.Y.2012) (citing Barbera v. Smith, 836 F.2d at 99.
In contrast, where formal proceedings have not begun and
the prosecutor is acting in an investigative capacity—such
as by providing the police with legal advice on investigative
techniques—qualified immunity generally applies. Id. While
the Supreme Court has noted that a prosecutor is not
absolutely immune for every action taken after probable
cause has been established, see Buckley, 509 U.S. at 274
n. 5, “the Court's treatment of the issue demonstrates that
the existence of probable cause with respect to a particular
suspect is a significant factor to be used in evaluating the
advocatory nature of prosecutorial conduct.” Cousin v. Small.
325 F.3d 627, 633 (5th Cir.2003); accord Barbera, 836 F.2d
at 99 (noting “that in each of the cases we have reviewed
where absolute immunity was upheld, some type of formal
proceeding had been commenced or was being commenced
by the challenged acts”); see also DiBlasio v. Novello, 344
F.3d 292, 300–01 (2d Cir.2003) ( “In assessing whether
absolute immunity should attach to a prosecutor ... we have
focused on the timing of the conduct at issue....”) Thus, in
interpreting Buckley, the Second Circuit has distinguished
between “preparing for the presentation of an existing case,”
on the one hand, and attempting to “furnish evidence on which
a prosecution could be based,” on the other hand, with only
the former entitling a prosecutor to absolute immunity. Smith
v. Garretto, 147 F.3d 91, 94 (2d Cir.1998).
*7 In assessing a prosecutor's claim of absolute immunity,
the court employs a “functional approach,” see, e.g., Burns,
500 U.S. at 486, which looks to “the nature of the function
performed, not the identity of the actor who performed it.”
Forrester v. White, 484 U.S. 219, 229 (1988); see also Van de
Kamp v. Goldstein, 555 U.S. 335, 335–336 (2009) (“To decide
whether absolute immunity attaches to a particular kind of
prosecutorial activity, one must take account of ... ‘functional’
considerations”). The court must inquire whether the actions
in question are part of a prosecutor's traditional function
and whether they are closely associated with the judicial
process. Blouin v. Spitzer, 356 F.3d 348, 357 (2d Cir.2004) (a
court must examine the “nature of the function performed”
in assessing whether absolute immunity will attach.); Doe v.
Phillips, 81 F.3d 1204, 1209 (2d Cir.1996).
B. Analysis
1. Malicious Prosecution, Abuse of Process
To the extent that the Amended Complaint seeks to hold
Chao liable for initiating the prosecution of Moye, absolute
immunity is clearly applicable. Shmueli v. City of New
York, 424 F.3d 231, 237 (2d Cir.2005) (“[T]he prosecutor
is shielded from liability for damages for commencing and
pursuing the prosecution, regardless of any allegations that
his actions were undertaken with an improper state of mind or
improper motive.”); see also Hill, 45 F.3d at 660–61 (holding
that prosecutors and those working under their direction are
absolutely immune for claims relating to the initiation of a
prosecution and for conduct before a grand jury). Plaintiff s
federal and state law claims alleging malicious prosecution
and abuse of process will therefore be dismissed. 5
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2. Creation of Misleading Photographs, Conspiracy to
Present False Evidence at Trial
Moye alleges that Chao, in preparation for Moye's second
trial, returned to West 118th Street and instructed Nancy
Badger—the District Attorney's office photographer—to take
photographs that inaccurately represented the position of
Moye's car on the night of his arrest. Chao then presented
these photographs at the second trial. (Am.Cmplt.¶¶ 38, 40,
50, 50–54, 66–67) Moye alleges that these photographs gave
the false impression that the police in the observation post
would have been able to see Moye's hand outside the driver's
side window. (Id. ¶ 60) Moye further argues that absolute
immunity does not extend to Chao's role in obtaining these
allegedly misleading photographs, because obtaining such
evidence is “not a traditional prosecutorial function” and was
“done for the purpose of misleading the second jury.” (Pltf.
Opp. Br. at 10–11)
Prosecutors' absolute immunity applies “not just for
presentation of testimony,” however, but also to preparatory
conduct “relating to their advocacy.” Dory, 24 F.3d at 83.
The Supreme Court and the Second Circuit have emphasized
that ‘ “the duties of the prosecutor in his role as advocate
for the State involve actions preliminary to the initiation
of a prosecution and actions apart from the courtroom....
Preparation, both for the initiation of the criminal process
and for a trial, may require the obtaining, reviewing, and
evaluating of evidence.’ “ Barbera, 836 F.2d at 100 (quoting
Imbler, 424 U.S. at 431 n. 33); see also Barrett, 798 F.2d
at 571 (“The absolute immunity accorded to government
prosecutors encompasses not only their conduct of trials
but all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation....”).
*8 Chao obtained the photographs at issue after Moye's first
trial and in preparation for Moye's second trial. Accordingly,
his involvement in obtaining these photographs took place
long after formal criminal proceedings had been commenced.
See Deskovic v. City of Peekskill, Nos. 07–CV–8150 (KMK),
07–CV–9488 (KMK), 2009 WL 2475001, at *10 (S.D.N.Y.
Aug. 13, 2009) (“[i]n assessing how closely connected a
prosecutor's conduct is to the judicial phase of the criminal
process, the timing of the conduct is relevant”) (citing
DiBlasio, 344 F.3d at 300–01).
Furthermore, in directing that these new photographs be
taken, Chao was performing in his role as a prosecutor
preparing for trial: he sought to obtain these visual depictions
of the crime scene in order to strengthen his case. (Am. Cmplt.
¶ 64 (purpose of second set of photographs was “to show
that P.O. Jeselson could see a hand coming out of the car
window on the date of plaintiff s arrest”)). Although Chao
was working with the police, he was acting within his role
“as [an] advocate for the State.” Burns, 500 U.S at 491.
Courts have consistently found absolute immunity applicable
where, as here, a Section 1983 plaintiff is relying on post-
indictment misconduct by a prosecutor aimed at obtaining
additional evidence to support pending charges at trial. See,
e.g., Deskovic, 2009 WL 2475001, at *5, *11, *13 (plaintiff
contended that A.D.A. had, post-indictment, conspired to
procure false scientific evidence that he later introduced at
trial; granting A.D.A.'s motion to dismiss Section 1983 claims
on absolute immunity grounds, because the A.D.A.'s alleged
misconduct took place after indictment during the “judicial
phase of the criminal process”); Bertuglia v. City of New York,
No. 11 Civ. 2141(JGK), 2012 WL 906958, at *21 (S.D.N.Y.
Mar. 19, 2012) (granting motion to dismiss state law claims
against A.D.A. defendant based on post-indictment evidence-
gathering activities; absolute immunity applicable because
“the Complaint does not allege facts that create a plausible
inference that [the prosecutor] was not acting as an advocate
seeking to strengthen her case against an indicted defendant”);
Zahrey v. City of New York, No. 98–4546, 2009 WL 54495, at
*30–*31 (S.D.N.Y. Jan. 7, 2009) (granting absolute immunity
to A.D.A. alleged to have engaged in post-indictment effort
to fabricate evidence); KRL v. Moore, 384 F.3d 1105 (9th
Cir.2004) (granting A.D.A. absolute immunity for alleged
misconduct related to his role in obtaining a post-indictment
search warrant seeking evidence to corroborate pending
charges); Cousin v. Small, 325 F.3d 627, 635 (5th Cir.2003)
(granting absolute immunity to A.D.A. accused of fabricating
evidence post-indictment; “at the time of [A.D.A.] Jordan's ...
conversations with Rowell, in which Jordan allegedly told
Rowell to implicate Cousin falsely in the murder and coached
him on how to testify, Jordan was acting as an advocate rather
than as an investigator. The interview was intended to secure
evidence that would be used in the presentation of the state's
case at the pending trial of an already identified suspect,
not to identify a suspect or establish probable cause. Jordan
therefore is entitled to absolute immunity with respect to this
claim.”); see also Peay v. Ajello, 470 F.3d 65, 68 (2d Cir.2006)
(affirming dismissal on absolute immunity grounds of Section
1983 claim brought against Assistant State's Attorney based
on alleged conspiracy to present false evidence at trial); Dory,
25 F.3d at 83 (“absolute immunity protects a prosecutor from
§ 1983 liability for ... allegedly conspiring to present false
evidence at a criminal trial”).
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*9 Because Chao is alleged to have obtained the misleading
photographs post-indictment, in preparation for Moye's
second trial, and in an effort to strengthen his case as the
State's advocate, he is entitled to absolute immunity for this
alleged misconduct.
3. Misconduct at Trial
Moye alleges that Chao elicited false testimony from Officer
Jeselson at trial, that he buttressed Jeselson's false testimony
through introduction of the misleading photographs, and that
he then vouched for the truth of Jeselson's testimony in his
summation.
A prosecutor's presentation of false evidence, or subornation
of perjury at trial, is protected by absolute immunity. Jones
v. King, No. 10 Civ. 0897(PKC), 2011 WL 4484360, at *4
(S.D.N.Y. Sept. 28, 2011) (“The claim that [the prosecutor]
‘conspir[ed] to present false evidence at a criminal trial’ is
barred.... The prosecutor enjoys absolute immunity ‘despite
allegations of his “knowing use of perjured testimony....’ “
”) (citations omitted); Bertuglia, 2012 WL 906958, at *23
(prosecutors are entitled to absolute immunity for allegations
that they “coerced and harassed various witnesses into giving
false testimony”); Urrego v. United States, No. 00 CV
1203(CBA), 2005 WL 1263291, at *2 (E.D.N.Y.2005) (“It
is settled law that when a prosecutor presents evidence to
a grand jury and at trial he is acting as an advocate and
entitled to absolute immunity on claims that the evidence
presented was false.”); Johnson v. Scott, No. CV–91–
1467(CPS), 1993 WL 36131, at *2 (E.D.N.Y. Feb. 5, 1993)
(A.D.A. entitled to absolute immunity related to witness
perjury, because this “concern[ed] ... the presentation of the
State's case against the plaintiff); see Imbler, 424 U.S. at
430–31 (granting prosecutors absolute immunity for their
conduct “in presenting the State's case,” including permitting
a fingerprint expert to give false testimony, suppressing
important evidence, and introducing a misleading artist's
sketch into evidence.).
The analysis does not change because Plaintiff alleges a
conspiracy to commit these acts. Shmueli, 424 F.3d at 237–
38 (“principles [of absolute immunity] are not affected
by allegations that improperly motivated prosecutions were
commenced or continued pursuant to a conspiracy”) (citing
Dory, 25 F.3d at 83); Bernard. 356 F.3d at 503; Hill, 45 F.3d
at 659 n. 2 (when the underlying activity at issue is covered
by absolute immunity, the “plaintiff derives no benefit from
alleging a conspiracy”).
Plaintiff also argues that Chao acted outside his prosecutorial
role when he vouched for Jeselson's testimony during
summation. Because a prosecutor's summation is part of
presenting the State's case, courts agree that a prosecutor's
conduct during summation is protected by absolute immunity.
See Robinson v. Rome, No. 11–CV–1411(NGG)(LB), 2011
WL 1541044, at *3 (E.D.N.Y.2011) (finding A.D.A.s immune
from suit for claims related to, inter alia, an improper
summation); Johnson, 1993 WL 36131, at *2 (granting
absolute immunity to prosecutor where plaintiff alleged that
A.D.A. “express [ed] to the jury her opinion as to the truth of
the testimony of her witnesses during her summation”).
*10 In sum, to the extent that Moye's claims against Chao
are based on his conduct at trial, those claims are covered by
absolute immunity.
* * * *
The Court concludes that Chao has absolute immunity for
all of Moye's claims, whether based on federal or state law,
and whether founded on theories of malicious prosecution,
abuse of process, denial of a fair trial, fabricated evidence,
conspiracy, or intentional or negligent infliction of emotional
distress.
CONCLUSION
Chao's motion to dismiss is GRANTED. The Clerk of the
Court is directed to terminate the motion (Dkt. No. 23).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 2569085
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Footnotes
1 The Amended Complaint does not disclose what false testimony or other false evidence was laid before the
grand jury. Moreover, there is no suggestion that Chao was involved in presenting false testimony or false
evidence to the grand jury.
2 Because Moye sues Defendant Chao in his individual capacity (Am .Cmplt.¶ 9), his claims are not barred
by the Eleventh Amendment. See Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993) (“To
the extent that ... a [Section 1983] claim is asserted against a [state official] in his individual capacity, he
may assert privileges of absolute or qualified immunity but may not assert immunity under the Eleventh
Amendment.”).
3 District courts likewise evaluate the applicability of absolute immunity before assessing whether a plaintiff has
sufficiently alleged a constitutional violation. Pinaud, 52 F.3d at 1148 n. 4 (citing Buckley, 509 U.S. at 261).
4 By contrast, discretionary prosecutorial actions that are not “intimately associated with the judicial phase of
the criminal process” are entitled only to qualified immunity. See Buckley, 509 U.S. at 270–75; Burns, 500
U.S. at 491–95. A prosecutor is “absolutely immune from liability under section 1983 [only] for acts ‘within
the scope of [their] duties in initiating and pursuing a criminal prosecution.’ “ Day, 909 F.2d at 77 (quoting
Imbler, 424 U.S. at 410). Thus, when a prosecutor acts in an investigative or administrative capacity, absolute
immunity is not available. Hill, 45 F.3d at 661. For example, immunity is not available when a prosecutor
releases information or evidence to the media, Buckley, 509 U.S. at 276–78; authorizes or directs the use
of wiretaps, Powers v. Coe, 728 F.2d 97, 103 (2d Cir.1984); or performs the functions normally performed
by the police, such as assisting in the execution of a search or seizure. See Buckley, 509 U.S. at 273. The
Supreme Court has also withheld absolute immunity for conduct unrelated to advocacy, such as giving legal
advice, Burns, 500 U.S. at 492–96, or acting as a complaining witness. Kalina, 522 U.S. 118, 129–31; see
also Ying Jing Gan, 996 F.2d at 533 (finding that prosecutor was not entitled to absolute immunity where he
allegedly exposed a witness to retaliation and failed to provide adequate protection for the witness).
5 Absolute immunity is a defense not only to Section 1983 claims but to related state law claims. See Shmueli,
424 F.3d at 238 (dismissing Section 1983 and related state law malicious prosecution claims); Arum v. Miller,
331 F.Supp.2d 99, 112 (E.D.N.Y.2004) (dismissing abuse of process and civil conspiracy claims on grounds
of absolute prosecutorial immunity); Imbler, 424 U.S. at 424 (same principles require conferral of absolute
immunity for damage claims against prosecutors under Section 1983 and state law).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Ovalle v. Suffolk County, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 3986720
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Warren A. OVALLE, Plaintiff,
v.
SUFFOLK COUNTY, et al., Defendants.
21-cv-5371 (BMC)
|
Signed August 29, 2024
Attorneys and Law Firms
William Ferro, Ferro, Kuba, Mangano, Sklyar, P.C.,
Hauppauge, NY, Kenneth Eugene Mangano, Lance Eric
Kuba, Ferro Kuba Mangano Sklyar Gacovino & Lake P.C.,
New York, NY, for Plaintiff.
Stacy A. Skorupa, Suffolk County Department of Law,
Hauppauge, NY, for Defendant Suffolk County.
Patricia M. Hingerton, NYS Office of the Attorney General,
Hauppauge, NY, for Defendant Department of Corrections
and Community Supervision.
MEMORANDUM DECISION AND ORDER
COGAN, District Judge.
*1 Plaintiff Warren Ovalle brings this action under 42 U.S.C.
§ 1983 and related statutes for unlawful imprisonment arising
from his arrest on two parole detainer warrants, contending
that the warrants were invalid. For a host of reasons, his
claims fail, and defendants’ motions to dismiss are granted.
BACKGROUND 1
In 2010, Ovalle was convicted of second-degree assault and
second-degree attempted robbery. The charges arose from
the detention and beating of a victim by Ovalle and his co-
defendant, Robert Akre. 2 Ovalle was sentenced cumulatively
to six years’ incarceration and five years of post-release
supervision. In 2015, he was released from custody early, at
which time he agreed in writing to both standard and special
conditions of post-release supervision.
There are two conditions that plaintiff allegedly violated and
that led to this lawsuit, although both conditions covered
the same conduct. One was the standard condition not to
“be in the company or fraternize with any person [plaintiff]
know[s] to have a criminal record.” That included his former
co-defendant, Akre. The second was a special condition that
expressly prohibited him from having any contact with Akre.
Plaintiff also acknowledged in writing that these conditions
(and the other conditions of release not material here) would
remain in effect “until the termination of his legal period of
supervision.” 3 The standard conditions of release indicated
that the maximum term of plaintiff's post-release supervision
ended on March 19, 2019, while the special conditions
indicated that the maximum term ended on March 17, 2019.
On September 18, 2017, the defendant New York State
Department of Corrections and Community Services
(“DOCCS”) issued a warrant for plaintiff's arrest (the “First
Warrant”), and plaintiff was taken into custody. The warrant
was based on a Violation of Supervised Release Report (the
“First VOSRR”) prepared by plaintiff's probation officer and
approved by that probation officer's supervisor. It contained
23 charges arising out of, among other violations, plaintiff's
continued contact with Akre, his refusal to follow his parole
officer's directions not to contact Akre, lying to his Parole
Officer about his extensive contact with Akre, and weapons
and drug possession.
On September 25, 2017, a preliminary parole revocation
hearing was held on two of the charges in the First VOSRR
(charges 3 and 10), each alleging that plaintiff met Akre on
different dates. 4 The hearing officer found no probable cause
as to charge 3 but found probable cause as to charge 10.
*2 On October 30, 2017, prior to the final revocation hearing
on charge 10, plaintiff's parole officer filed a Supplementary
Violation of Release Report (the “SVORR”), adding charges
24-29 to the First VOSRR. That report alleged that plaintiff,
while being held on the First Warrant in the Suffolk County
Jail, had multiple, additional meetings with Akre during
visiting hours. The SVORR also added an additional charge
for possession of dangerous instruments that occurred prior
to his arrest on the First Warrant.
On November 2, 2017, while still awaiting his final
revocation hearing, plaintiff filed a motion for writ of habeas
corpus through counsel in state court (the “First Habeas”) to
challenge the hearing officer's decision on probable cause as
to charge 10. Plaintiff submitted evidence which he claimed
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demonstrated, inter alia, that the testifying witness supporting
Charge 10 never identified plaintiff and Akre and that the
charge was false because Akre had an alibi for their alleged
meeting on that date. On November 29, 2017, the First Habeas
court, based on this new evidence, found a lack of probable
cause for the remaining charge and vacated the First Warrant
on November 30, 2017.
As plaintiff was preparing to depart from custody – indeed,
as the corrections officers in his facility were preparing
to discharge him – DOCCS served plaintiff with a new
warrant of arrest (the “Second Warrant”). Thus, his custody
continued. The Second Warrant was supported by a Violation
of Supervised Release Report that had 95 charges (the
“Second VOSRR”). Some of those charges were previously
stated in the SVORR, alleging meetings between plaintiff and
Akre while plaintiff was in custody on the First Warrant.
Plaintiff had his preliminary revocation hearing on the Second
Warrant on December 13, 2017, and DOCCS went forward
with charge 44, which alleged that plaintiff had visited with
Akre while plaintiff was in custody on the First Warrant. The
hearing officer found probable cause for that charge based on
witness testimony, a visitor log, and video evidence of the
visit.
On January 8, 2018, plaintiff filed another petition for a writ of
habeas corpus (the “Second Habeas”) to challenge (this time)
the hearing officer's findings at the preliminary hearing on
the Second Warrant. His primary argument was that he could
not be charged with parole violations while he was in custody
because he could not be on parole while he was in custody. He
also argued that the Second Warrant re-asserted the charges
contained in the Supplemental Charges. The habeas court
rejected both arguments on January 31, 2018. As expressed in
plaintiff's order of release, the habeas court found that, under
New York law, the terms of plaintiff's parole remained in force
until his parole term ended on March 19, 2020, whether he
was in custody or not. Plaintiff attempted to appeal this ruling,
but his attempt was procedurally defective, and the Appellate
Division rejected it.
Plaintiff went to his final revocation hearing on the Second
VOSRR on March 1, 2018. The hearing officer sustained
39 of the 116 charges against him. 5 Plaintiff reprised his
argument that he could not violate his conditions of parole
while in custody on the First Warrant. The Appeals Unit
rejected that argument and affirmed.
Back to the habeas court went plaintiff (the “Third Habeas”),
filing another petition on August 5, 2019. He again asserted
the same argument rejected by the Second Habeas court – that
he was not bound by the terms of his parole while he was in
custody.
*3 A review of the transcript of the Third Habeas proceeding
shows that the assigned judge became confused by the
multitude of prior administrative and judicial proceedings. 6
He did not realize that the hearings on the First Warrant
pertained to different, unrelated charges from the ones heard
on the Second Warrant. He also did not recognize that
at plaintiff's preliminary revocation hearing on the Second
Warrant, the habeas court had rejected plaintiff's theory that
conditions of parole do not apply while the parolee is in
custody on a parole violation, and that the same theory
was again rejected when plaintiff administratively challenged
the decision in his final revocation hearing on the Second
Warrant. The Third Habeas court, effectively skipping over
that the Second Warrant was not before the First Habeas
Court, and that the Second Habeas Court had rejected
plaintiff's theory, believed that DOCCS was trying to do an
“end run” on the First Habeas court's ruling that DOCCS
had failed to show probable cause on charge 10 of the First
Warrant. He therefore granted habeas relief as to the Second
Warrant on October 2, 2019, and plaintiff was released.
Plaintiff then brought this action. In essence, plaintiff is
claiming that the First Warrant and Second Warrant violated
his rights under the Fourth and Fifth Amendments because
they were based on false statements. As to the First Warrant,
the only thing plaintiff relies on is the habeas decision finding
lack of probable cause as to charge 10. As to the Second
Warrant, plaintiff alleges that by realleging violations that
were or could have been raised in the First Warrant, his
due process rights under the Fourteenth Amendment and his
liberty rights under the Fifth Amendment were violated.
The 17 defendants named in the amended complaint fall
into two groups: (1) State agencies and officials including
DOCCS, the Acting Commissioner and Regional Director
of DOCCS, the Office of Special Investigation and an
investigator, an Assistant Attorney General and the Office
of the Attorney General, and parole officers; and (2)
county entities and officials, including Suffolk County,
Suffolk County Sheriff's Department, and John Doe Sheriff's
Department Correctional Officers, #1-10.
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DISCUSSION
The amended complaint, like the original complaint, is a
hodgepodge of claims, a number of which plaintiff has either
expressly withdrawn or withdrawn by non-opposition in
responding to defendants’ motions to dismiss those claims.
See Black Lives Matter v. Town of Clarkstown, 354 F. Supp.
3d 313, 328 (S.D.N.Y. 2018). The net of this is that the claims
against DOCCS, Acting DOCCS Commissioner Annucci,
Regional DOCCS Director Davies, the Office of Special
Investigations, Assistant Attorney General Pack, the Office
of Attorney General, and the individual State defendants
Owens-Skrodance, Torres, Botwinick, Jenkins, Hnis, and
Delrio are dismissed. The claims against Suffolk County,
Suffolk County Sheriff's Department, and the John Doe
defendants are also dismissed. The only defendants remaining
are Parole Officer Hamlette, Senior Parole Officer Juste,
and Investigator Mencarelli, and the only claims remaining
against them are under 42 U.S.C. §§ 1983 and 1985, based on
false arrest and imprisonment, false charges, and due process
violations.
For the following reasons, plaintiff's false arrest and
imprisonment claims are time-barred, and the rest of his
allegations do not state a claim on which relief can be granted.
I. False Arrest and Imprisonment
The statute of limitations for constitutional claims under 42
U.S.C. §§ 1983 and 1985 is determined by the statute of
limitations for analogous torts under applicable state law.
Owens v. Okure, 488 U.S. 235, 249-51 (1989). New York law
sets that statute of limitations at three years. See Pearl v. City
of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002); Cornwell v.
Robinson, 23 F.3d 694, 703 (2d Cir. 1994). Although state
law provides the length of time to bring a claim once it
accrues, the date of accrual is a matter of federal law. See
McDonough v. Smith, 588 U.S. 109 (2019). Under federal
law, a § 1983 claim accrues “when the plaintiff knows or
has reason to know of the injury which is the basis of his
action.” Singleton v. City of New York, 632 F.2d 185, 191
(2d Cir. 1980). Applying this standard, the Supreme Court has
held that the statute of limitations begins to run on § 1983
false arrest and imprisonment claims when the plaintiff is
“held pursuant to [legal] process – when, for example, he is
bound over by a magistrate or arraigned on charges.” Wright
v. Rutulante, No. 16-cv-10068, at *4 (S.D.N.Y. Mar. 27, 2018)
(quoting Wallace v. Kato, 549 U.S. 384, 389 (2007)); see also
Watson v. United States, 865 F.3d 123, 131 (2d Cir. 2017);
Lynch v. Suffolk Cnty. Police Dept., Inc., 348 F. App'x 672,
675 (2d Cir. 2009).
*4 This plainly bars any claims for false arrest and
imprisonment arising from plaintiff's arrest on the First
Warrant. Plaintiff was arraigned on the charges in the First
Warrant on September 25, 2017 and on the charges in the
Second Warrant on December 13, 2017. Yet plaintiff did
not file his complaint until September 28, 2021. Further, his
argument that he “was not aware that his due process rights
were violated and that he was unlawfully confined until [the
Third Habeas court] granted his Writ of Habeas Corpus” flies
in the face of the complaint and settled law. 7 Of course he was
aware. Plaintiff's writ to the Third Habeas Court advanced
the same set of arguments that he used to challenge the
administrative determination and that he repeated in his writ
to the Second Habeas court. By January 31, 2018, plaintiff
had made these same factual and legal arguments multiple
times in front of multiple tribunals. This is not a “discovery”
accrual; by January 31, 2018, plaintiff had actual knowledge
of all the facts and law that he now relies upon to attack the
Second Warrant. And, again, the law is clear that the statute
of limitations accrued when he was arraigned on the Second
Warrant on December 13, 2017.
In the alternative, plaintiff combines two arguments to try
to toll the statute of limitations beyond the date that he
commenced this action. First, he seeks to invoke a statutory
toll. He relies on the Executive Orders of the Governor of
New York that tolled all statutes of limitations due to the
pandemic. See 9 NYCRR § 202.8; Paul v. Capra, No. 20-
cv-5154, 2022 WL 992845, ay *6 (S.D.N.Y. March 31, 2022).
Those Orders, however, tolled statutes of limitations for only
228 days, leaving plaintiff well short. His false-arrest and
imprisonment claims related to the Second Warrant, which
would have expired on December 13, 2020, expired on July
29, 2021, nearly two months before he filed this action.
Plaintiff seeks to close that gap by relying on equitable
tolling. “To qualify for [equitable tolling,] the [plaintiff]
must establish that extraordinary circumstances prevented
him from filing his [claim] on time, and that he acted with
reasonable diligence throughout the period he seeks to toll.”
Watson v. United States, 133 F. Supp. 3d 502, 521 (E.D.N.Y.
2015) (alterations in original) (quoting Phillips v. Generations
Fam. Health Ctr., 723 F.3d 144, 150 (2d Cir. 2013)). The
crux of the inquiry is “how severe an obstacle it is for
the [person] endeavoring to comply with ... [the] limitations
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period.” Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011)
(quoting Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008)).
Plaintiff does not come close to meeting the standard for
equitable tolling. He relies on the fact that he was vigorously
litigating his multiple habeas corpus proceedings to show
that he exercised due diligence in pursuing his claims. But
equitable tolling is afforded to plaintiffs who demonstrate an
extraordinary inability to pursue a claim, not an ability to
pursue a claim. In other words, the fact that nothing stopped
plaintiff from so aggressively pursuing his other claims
administratively and in court shows that there is no reason
for his delay in commencing this action. And his conclusory
assertions about impediments such as incarceration and
lacking access to counsel do not constitute extraordinary
circumstances. See Cotto v. Pabon, No. 07-cv-7656, 2008 WL
4962986, at *12 (S.D.N.Y. Nov. 20, 2008) (collecting cases).
Equitable tolling thus does not apply, and plaintiff's claims
premised on false arrest and imprisonment are time-barred.
II. Remaining Allegations
Plaintiff's remaining allegations shed little light on the nature
of his other §§ 1983 and 1985 claims. He asserts only that
these claims arise out of “due process” and “false charges,”
and his opposition to defendants’ motions is not helpful.
To the extent that plaintiff meant to bring a substantive or
procedural due process claim, he has not done so adequately.
The Supreme Court disfavors relying on substantive due
process where, as here, the Fourth Amendment affords
protection. See Albright v. Oliver, 510 U.S. 266, 274 (1994);
Jackson ex rel. Jackson v. Suffolk Cnty., 87 F. Supp. 3d
386, 399 (E.D.N.Y. 2015). As for procedural due process,
New York provides ample appellate remedies (of which
plaintiff availed himself), and plaintiff has not alleged that
these remedies are constitutionally deficient. Plaintiff is
accordingly not entitled to relief under § 1983. See Chase Grp.
All. LLC v. New York Dep't of Fin., 620 F.3d 146, 152 (2d
Cir. 2010).
*5 To the extent that plaintiff's § 1983 claim is premised
on false charges, he runs into similar issues. The Second
Circuit has made clear that the filing of false charges alone,
without some other deprivation of a liberty interest, is not
a constitutional violation. See Freeman v. Rideout, 808 F.2d
949, 953 (2d Cir. 1986). Construed most favorably to plaintiff,
his “false charges” allegations could be understood as an
attempt to plead a gestalt malicious-prosecution claim. Of
course, they could just as easily be understood as an “inaptly
expressed claim for false arrest,” Plonka v. Brown, 2 F. App'x
194, 196 (2d Cir. 2001), which would be time-barred. But,
out of an abundance of caution, I will treat them as akin to a
malicious prosecution claim under § 1983 and conspiracy to
commit malicious prosecution under § 1985.
“A § 1983 claim for malicious prosecution accrues when the
prosecution terminates in the plaintiff's favor.” Olaizola v.
Foley, 797 F. App'x 623, 625 (2d Cir. 2020). Here, then, any
malicious prosecution claims arising out of the First Warrant
would have accrued on November 30, 2017, the date on
which the First Writ was granted, and any arising out of the
Second Warrant would accrue on October 2, 2019, the date on
which the Third Writ was granted. A malicious-prosecution
claim relating to the Second Warrant would have therefore
been timely. Even so, the amended complaint fails to state
sufficient facts to support such a claim.
In support of his § 1985 claim, plaintiff has failed to allege
any facts that could provide a “basis supporting a meeting
of the minds” regarding the alleged conspiracy, see Webb
v. Goord, 340 F.3d 105, 110 (2d Cir. 2003), or a basis
supporting discriminatory animus, see Manbeck v. Micka,
640 F. Supp. 2d 351, 382 (S.D.N.Y. 2009). The closest
the complaint comes is when it asserts that defendants
“formed an agreement to violate [plaintiff's] civil and due
process rights,” that defendants acted “maliciously with the
intent to injure” plaintiffs, and that defendants “implemented
systemic racism.” These statements, however, are nothing
more than legal conclusions, and “[c]omplaints containing
only conclusory, vague, or general allegations of a conspiracy
to deprive a person of constitutional rights will be dismissed.”
Brito v. Arthur, 403 F. App'x 620, 621 (2d Cir. 2010).
Likewise, in support of his § 1983 claim, plaintiff has not pled
particularized facts which could support a finding of “actual
malice.” Stampf v. Long Island R.R., 761 F.3d 192, 198 (2d
Cir. 2014) (“To establish a malicious prosecution claim ...
a plaintiff must prove (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.”). Although at various
points the amended complaint lodges general accusations of
racism, like allegations that the defendants were “motivated
by [plaintiff's] race and skin color,” it does not point to
any specific facts that make such accusations plausible. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Therefore, these claims are dismissed.
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Ovalle v. Suffolk County, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
CONCLUSION
Defendants’ motions to dismiss are granted.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 3986720
Footnotes
1 The background of this case is based on the complaint and certain public record documents submitted by
defendants giving additional context and to which plaintiff has not objected. See Koch v. Christie's Int'l PLC,
785 F. Supp. 2d 105, 112 (S.D.N.Y. 2011) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48
(2d Cir. 1991))
2 It appears that the victim had some familial relationship with Akre.
3 Plaintiff alleges that the special conditions were unenforceable because his parole officer “never properly
reviewed” them with him. But he does not contest the validity of the standard conditions.
4 A preliminary parole revocation hearing is essentially a probable cause hearing to determine if the matter
should proceed to a final revocation hearing. Under New York law, the parole officer does not need to establish
probable cause as to all the charges in the Violation of Supervised Release Report – one charge is sufficient.
See N.Y. Exec. Law § 8005.7(e) (McKinney 2023). If probable cause is found, then the parolee can remain in
custody. This does not mean the other charges have been abandoned. Those charges may still be prosecuted
at the final revocation hearing. See N.Y. Exec. Law § 8005.19 (McKinney 2023).
5 The Second VOSRR initially included 95 charges. An additional 21 charges were added later.
6 Not that plaintiff's lawyer at the Third Habeas was of any help in explaining things to the Third Habeas judge.
She told the Third Judge: “What's before the judge [i.e., the Third Habeas judge] is simply visits to the Suffolk
County Jail. Any other allegation of anything had been dismissed by [the First Habeas judge] in a writ of
habeas corpus.” (emphasis added). As shown above, that was flat out wrong – the violations heard on the
First Warrant had nothing to do with the violations heard on the Second Warrant.
7 Additionally, plaintiff erroneously states that Third Habeas court granted plaintiff's writ on October 11, 2019.
The transcript of the hearing and order granting relief are both dated October 2, 2019.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Peck v. County of Onondaga, New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 3710546
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kamilla S. PECK, Plaintiff,
v.
COUNTY OF ONONDAGA, NEW YORK; Eugene
Conway, Onondaga County Sheriff; Jason Cassalia,
Undersheriff; Katherine Trask, Chief; Jonathan Seeber,
Sergeant; Kelly Seeber, Deputy; Susan DeMari, Chief
Deputy; Dawn Curry-Clarry, Director of Employee
Relations; Paul Smith, Human Resources Manager;
Paula Pellizzari, Captain; Esteban Gonzalez, Chief,
John Doe(s), and Jane Doe(s), all in their individual and
official capacities as representatives of Onondaga County
and/or the Onondaga County Sheriff's Office, Defendants.
5:21-CV-651
|
Signed 08/19/2021
|
Filed 08/20/2021
Attorneys and Law Firms
BOSMAN LAW FIRM, LLC, Attorneys for Plaintiff,
3000 McConnellsville Road, Blossvale, New York 13308,
OF COUNSEL: AJ BOSMAN, ESQ., ROBERT JAMES
STRUM, ESQ.
BOLAÑOS LOWE PLLC, Attorneys for Defendants, 11
Schoen Place, Fifth Floor, Pittsford, New York 14534, OF
COUNSEL: KYLE W. STURGESS, ESQ.
MEMORANDUM-DECISION and ORDER
David N. Hurd U.S. District Judge
TABLE OF CONTENTS
*1 I. INTRODUCTION ...––––
II. BACKGROUND ...––––
III. LEGAL STANDARD ...––––
A. Motion to Dismiss ...––––
B. Leave to Amend ...––––
IV. DISCUSSION ...––––
A. Section 1981 ...––––
B. Adequacy of Allegations of Discrimination ...––––
1. Religious Discrimination ...––––
2. Gender Discrimination ...––––
3. Personal Involvement: Section 1983 ...––––
a. Conway ...––––
b. Cassalia ...––––
c. DeMari ...––––
d. Curry-Clarry ...––––
e. Smith ...––––
f. Pellizzari ...––––
g. Gonzalez ...––––
4. Personal Involvement: NYSHRL ...––––
C. Conspiracy ...––––
D. First Amendment Retaliation ...––––
E. Intentional Infliction of Emotional Distress ...––––
F. Tortious Interference ...––––
G. Prima Facie Tort ...––––
H. Leave to Amend and Time to Answer ...––––
V. CONCLUSION ...––––
I. INTRODUCTION
On May 13, 2021, plaintiff Kamilla Peck (“Peck” or
“plaintiff”) filed this action in Supreme Court, Onondaga
County alleging race, gender, and religious discrimination in
her workplace, the Onondaga County Sheriff's Office (the
“Sheriff's Office”).
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Peck's state court complaint identified a host of defendants,
including Onondaga County itself (the “County”), Sheriff
Eugene Conway (“Conway”), undersheriff Jason Cassalia
(“Cassalia”), Chief Katherine Trask (“Trask”), Sergeant
Jonathan Seeber (“Jonathan”), Deputy Kelly Seeber
(“Kelly”), Chief Deputy Susan DeMari (“DeMari”), Director
of Employee Relations Dawn Curry-Clarry (“Curry-Clarry”),
Human Resources Manager Paul Smith (“Smith”), Captain
Paula Pellizzari (“Pellizzari”), Chief Esteban Gonzalez
(“Gonzalez”), as well as an unspecified number of
John and Jane Doe defendants (the “Does”) (collectively
“defendants”).
On June 3, 2021, defendants removed Peck's complaint to
federal court. Thereafter, defendants moved under Federal
Rule of Civil Procedure (“Rule”) 12(b)(6) to dismiss the
complaint in part. Plaintiff opposed and cross-moved to
amend her complaint under Rule 15(a)(2). 1 The cross-
motions have been fully briefed and will be decided on the
submissions without oral argument.
II. BACKGROUND
Peck is a Black woman who has worked in the Sheriff's Office
as a Sheriff Deputy-Custody since April 10, 2006. 2 Dkt.
16-2 (“Compl.”), ¶¶ 4, 28. Judging by the complaint, her time
working at the Sheriff's Office went smoothly enough to start.
She had no complaints about the workplace until she was
transferred from a prior post 3 to the Community Relations
Unit. Id. ¶¶ 31, 36.
*2 According to Peck, that new role got off to an
inauspicious start. Compl. ¶ 31. Not long after her transfer
to the Community Relations Unit, her supervisor, Sergeant
Jonathan Seeber, called her into his office. Id. While she was
meeting with him, Jonathan allegedly said to plaintiff “so I
have to tell you, the only reason that we brought you in to the
unit is because you are Black.” Id.
Peck claims that her relationship with Jonathan did not
improve much after that rocky beginning. Instead, she alleges
that Jonathan regularly sends her emojis of “Black” hands.
Compl. ¶ 31. Apparently, he and Chief Katherine Trask also
routinely make fun of plaintiff's “urban dialect,” for example
by lampooning her pronunciation of the word “that” as “dat.”
Id. Plaintiff claims that they would also often tell her not to
“sound like Frank Fowler,” the former Chief of Police for the
City of Syracuse, who is a Black man. Id. ¶ 39.
Apparently, Jonathan's wife, defendant Deputy Kelly Seeber,
has joined in with racially charged slights of her own. Compl.
¶ 32. According to plaintiff, Kelly changed the contact icon
for plaintiff on her phone to a picture of Black actress Octavia
Spencer dressed as a maid for the film The Help. Id. When
plaintiff found out, she became upset and asked that the
picture be changed. Id. Kelly refused, and instead showed the
icon to Trask and said “doesn't this look like [plaintiff]?” Id.
Trask allegedly replied that it did. Id.
Trask's purportedly flippant response only made Peck more
upset, and she told Kelly and Trask as much. Compl. ¶
32. Apparently, Jonathan only laughed and told plaintiff
to “relax,” “get a thick skin,” and to “stop taking things
so personal[ly].” Id. Plaintiff describes these and similar
“racially disparaging comments” as “regular and continuous”
in the Sheriff's Office. Id.
According to Peck, she applied for a promotion to the rank of
Sergeant in 2017. Compl. ¶ 34. She was ultimately denied. Id.
Plaintiff alleges that the candidates chosen in her stead were
White male officers who had the same Civil Service test score
that plaintiff had. Id. She also alleges that she had seniority
over both. Id.
On August 7, 2019, Peck tripped backwards over a sandbag
placed in front of the Sheriff's Office. Compl. ¶ 32. Plaintiff's
accident was caught on video, which plaintiff claims Jonathan
has admitted to showing to several officers around the office.
Id. Apparently, the video became the subject of ridicule and
claims by her other coworkers that plaintiff was faking her
injuries. Id. Plaintiff applied for disability benefits under New
York General Municipal Law § 207-c, which were approved
in October of 2019. See Id. ¶ 33.
In November of 2019, Peck tried her hand at a promotion
to Sergeant for a second time. Compl. ¶ 34. She interviewed
for that position on November 4 of that year. Id. However,
she claims that she was denied promotion once again. Id.
This time, a Hispanic man and a White woman got the
promotion plaintiff was after. Id. But plaintiff alleges that
she had both seniority and higher Civil Service test scores
than both new Sergeants. Id. According to plaintiff, defendant
Chief Esteban Gonzalez made these promotion decisions,
or else recommended these individuals to defendant Sheriff
Eugene Conway to make the final call. Id.
Around December of 2019, defendant Chief Deputy Susan
DeMari was appointed to the benefits committee at the
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Sheriff's Office. Compl. ¶ 33. Apparently, DeMari's arrival on
the committee was an ill omen for Peck, because she received
a letter dated February 18, 2020 denying her benefits from her
August 7, 2019 accident. 4 Id. Plaintiff appealed this denial,
but apparently the committee ignored her appeal. Id. Plaintiff
claims that, “upon information and belief,” similar on-duty
injuries suffered by White or male co-workers did not face the
same obstacles. Id.
*3 In the background of these alleged denials, Peck's
working relationship with Jonathan continued to lead to
conflict. Plaintiff alleges that she “has been and continues
to be held to greater scrutiny and higher standards of
performance and restrictions than her White counterparts.”
Compl. ¶ 36. She claims that this scrutiny intensified once she
started complaining about discrimination. Id.
Jonathan seems to be a particular source of scrutiny
concerning Peck's work. See Compl. ¶ 36. According to
plaintiff, he repeatedly threatens to send her back to her
previous post working at the jail. Id. For example, on January
29, 2020, Jonathan sent plaintiff a text message ordering her to
call him immediately or he would “have her ‘transfer papers
set for the jail[.]’ ” Id.
Judging by the proposed amended complaint, June seemed
to be the tipping point for Peck's work environment at the
Sheriff's Office. On June 1, 2020, plaintiff and Jonathan
discussed the death of George Floyd. Compl. ¶ 35. During
that conversation, Jonathan apparently denied that George
Floyd's death was caused by racial discrimination but instead
was “just a ‘death in custody’ and that [plaintiff] had been
‘brainwashed’ ” for believing otherwise. Id.
On June 11, 2020, Peck complained about “the discriminatory
and hostile work environment” to Jonathan and Trask. Compl.
¶ 38. In response, she alleges that they chose a “car seat
re-certification instructor” who had a “well-known dislike
for [p]laintiff.” Id. A White coworker apparently was not
burdened with a similar difficulty. Id. Plaintiff notes that she
“was not provided or offered any written complaint form to
file formally at that time.” Id.
Then, on June 15, 2020, Jonathan and Trask “ganged up on”
Peck to ask her “why her computer was not on and what time
she arrived.” Compl. ¶ 38. Trask then demanded in front of
plaintiff's coworkers that Jonathan write plaintiff up for “not
producing a feedback email.” Id. The next day, Peck alleges
that she and her union representative attended a mediation
with Jonathan and Trask. Id. ¶ 39. At the mediation, plaintiff
raised the “discriminatory and retaliatory” conduct described
above. Id.
On June 18, 2020, defendants Conway and undersheriff Jason
Cassalia attended a forum on race at Onondaga Community
College. Compl. ¶ 40. Peck was also there, and she used the
opportunity to report Jonathan, Kelly, and Trask's behavior to
the ranking members of the Sheriff's Office. Id. Conway and
Cassalia reassured plaintiff not to worry. Id. That same day,
DeMari gave plaintiff “an unsolicited complaint form.” Id. ¶
41.
On June 22, 2020, Peck came to work with the completed
complaint form. Compl. ¶ 41. But when she got to her desk,
she realized that it “had clearly been rifled and gone through
as items on her desk were missing and/or disheveled.” Id.
Plaintiff immediately went “in a panic” to defendant Dawn
Curry-Clarry, the Director of Personal Relations. Id. Plaintiff
told Curry-Clarry that plaintiff feared that she was in danger
because of her ransacked desk. Id. That same day, Curry-
Clarry, “in consultation with” Conway, placed plaintiff on
administrative leave until July 27, 2020. Id.
On June 23, 2020, DeMari apparently called Peck and
“demanded” that plaintiff return the keys to her marked police
car so other officers could use it while she was out. Compl. ¶
42. But according to plaintiff, the Sheriff's Office has multiple
sets of keys for each vehicle, so there was no need to force
plaintiff to give up her set. Id. The vehicle was never returned
to plaintiff, which allegedly was DeMari's intent from the
beginning. Id. Plaintiff brought this deprivation to Cassalia's
attention, but he disregarded it as “not retaliatory.” Id.
*4 At some unspecified point, DeMari allegedly “retaliated
and discriminated against [Peck] by commencing an internal
affairs investigation” that accused plaintiff of leaving work
“eight minutes early.” Compl. ¶ 43. According to plaintiff, the
claim was “spurious” and “instigated in bad faith.” Id.
During Peck's administrative leave, defendant Curry-Clarry
and an investigator called plaintiff and her husband into the
Sheriff's Office to discuss the results of the investigation
into plaintiff's ransacked desk. Compl. ¶ 44. According to
plaintiff, the investigation was “inaccurate and incomplete,”
leading up to Curry-Clarry's “retaliatory” finding that the
complaint was unfounded. Id. Plaintiff further claims that
Curry-Clarry threw in an accusation that plaintiff had acted
unprofessionally for good measure. Id. In doing so, plaintiff
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claims that she credited Jonathan, Kelly, and Trask's word
over plaintiff's and that of her independent witness. Id.
There was one consequence of the investigation, though.
Apparently, Peck was assigned a new supervisor: defendant
Captain Paula Pellizzari. Compl. ¶ 44. But this measure was
largely ceremonial to plaintiff's mind. Id. After all, Pellizzari
did not understand how the Community Relations Division
worked, so plaintiff claims she relied on Seeber and Trask to
help her determine plaintiff's assignments. Id.
What is more, Peck claims that those assignments were
themselves particularly degrading. Compl. ¶ 45. Plaintiff
alleges that she was forced to “count every single community
relations item” in the office and basement, a task never given
to White officers in her position. Id. Plaintiff also alleges that
Pellizzari moved her office at some point. Id.
Apparently fed up, Peck filed a discrimination and retaliation
complaint with the New York State Division of Human
Rights and the United States Equal Employment Opportunity
Commission (“EEOC”) on June 30, 2020. Compl. ¶ 19.
According to plaintiff, every defendant knew about the EEOC
complaint. Id. ¶ 47.
Peck nevertheless continued to work under these conditions
until September of 2020. Compl. ¶ 48. That month brought
two changes. First, plaintiff filed a second EEOC complaint
for discrimination and retaliation on September 1, 2020. Id.
¶ 20. Second, plaintiff's physicians allegedly took her out of
work due to her August 7, 2019 injury. Id. ¶ 48. She would not
return to work until early November of 2020. Id. Once she got
back, she apparently discovered that “most of her job duties
[had been] eliminated and she was relegated to perform[ing]
menial tasks.” Id.
Peck's return to work would prove to be short-lived. In mid-
November of 2020, she again needed to leave work, and she
provided the Sheriff's Office with medical excuses to that
effect. Compl. ¶ 49. Defendants apparently did not initially
respond. See id. But on January 28, 2021, defendant Paul
Smith, who works under DeMari, sent plaintiff a letter telling
her that she had failed to submit an “Appendix C” to her leave
request, as required by the Collective Bargaining Agreement
(“CBA”). Id. ¶ 50.
The letter apparently threatened that “all of [Peck's] absences
will be chargeable offenses under Article 35 of [the CBA]”
and that discipline could follow, “up to and including
termination.” Compl. ¶ 50. According to plaintiff, and despite
the terms of the CBA, defendants do not require injured
officers or their healthcare providers to actually submit
Appendix C. Id. ¶ 51.
*5 Peck has not returned to work since November 17,
2020. 5 Compl. ¶ 55. Defendants have nevertheless denied
plaintiff's benefits and worker's compensation applications
based on her injury. Id. Plaintiff claims that White or male
employees of the Sheriff's Office did not suffer through the
same difficulties. Id. For example, a female sergeant allegedly
suffered a similar injury at work that took her out of the
office for “three to four months.” Id. According to plaintiff,
this other sergeant was granted benefits without challenge,
and returned to work with a light duty accommodation.
Id. Plaintiff claims that Jonathan and Trask had a hand in
this denial, alleging that they have insinuated that plaintiff's
injuries are exaggerated or faked by supplying videos
purporting to show that plaintiff was not truly injured. Id.
On February 5, 2021, Peck asked the EEOC for a Right
to Sue letter. Compl. ¶ 52. Defendants were apparently
aware that plaintiff made this request. Id. On February 11,
2021, less than a week later, DeMari sent Civil Deputies to
plaintiff's home twice to serve her with personnel paperwork.
Id. ¶ 53. According to plaintiff, this paperwork could just
as easily have been sent by mail, electronic or otherwise.
Id. Instead, DeMari allegedly sent the deputies to “retaliate
against [p]laintiff and discourage her from pursuing legal
recourse for her discrimination and retaliation claims” by
having the deputies “bang” on plaintiff's door, scaring her
children. Id.
On March 2, 2021, Pellizzari “threatened [Peck] with a
suspension without pay and ordered [her] to surrender her
duty equipment,” apparently with Conway's authorization.
Compl. ¶ 54. Plaintiff would later learn that DeMari wanted
to suspend plaintiff for three days for failing to provide
Appendix C in her request for medical leave. Id. DeMari
allegedly wanted plaintiff to sign the disciplinary charge in
person and to surrender her equipment. Id. According to
plaintiff, this is contrary to the Sheriff's Office's policy that
members absent for an injury are not asked to surrender their
equipment. Id.
On May 6, 2021, the EEOC gave Peck a right to sue letter
for her September 1, 2020 complaint. Compl. ¶ 22. On May
19, 2021, plaintiff received a similar letter covering the facts
alleged in her June 30, 2020 complaint. Id. Plaintiff acted on
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those rights on May 13, 2021—apparently before receiving
the second right to sue letter—by filing a complaint in New
York State Supreme Court, Onondaga County. Dkt. 1-1, p.
32. 6 The complaint stated twenty causes of action. See id.,
pp. 19-31.
On June 3, 2021, defendants removed Peck's complaint to
this Court. Dkt. 1. On June 9, 2021, defendants moved to
dismiss the complaint in part and for a stay in their time
to answer the portions of the complaint they did not move
to dismiss. Dkt. 9. On July 7, 2021, plaintiff cross-moved
to amend her complaint. Dkt. 16. That cross-motion appears
to have conceded to dismissal of five counts of the original
complaint, leaving only fifteen counts remaining. See id. at
19-31.
Those fifteen counts are: (I) discrimination based on race and
gender in violation of Title VII of the Civil Rights Act of
1963 (“Title VII”) against the County; (II) race and gender
discrimination under the New York State Human Rights Law
(“NYSHRL”) against the County; (III) NYSHRL race and
gender discrimination against the individual defendants; (IV)
race discrimination against all defendants under 42 U.S.C.
§ 1981 (“§ 1981”); (V) race and gender discrimination in
violation of the Equal Protection Clause of the Fourteenth
Amendment against all defendants under 42 U.S.C. § 1983
(“§ 1983”); (VI) conspiracy to discriminate based on race and
gender in violation of § 1983 against all defendants; (VII)
Title VII retaliation against the County; (VIII) NYSHRL
retaliation against the County; (IX) NYSHRL retaliation
against the individual defendants; (X) retaliation against all
defendants under § 1981; (XI) retaliation in violation of the
First Amendment against all defendants under § 1983; (XII)
retaliation in violation of the Fourteenth Amendment against
all defendants under § 1983; (XIII) intentional infliction of
emotional distress against Trask, Jonathan, Kelly, DeMari,
Curry-Clarry, Smith, Pellizzari, and Does; (XIV) tortious
interference with her contractual rights to be free from
discrimination under the CBA against Trask, Jonathan, Kelly,
DeMari, Curry-Clarry, Smith, Pellizzari, Gonzalez, and Does;
and (XV) prima facie tort against Trask, Jonathan, Kelly,
DeMari, Curry-Clarry, Smith, Pellizzari, Gonzalez, and Does.
III. LEGAL STANDARD
A. Motion to Dismiss
*6 To survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). That factual matter may be drawn
from “the facts alleged in the complaint, documents attached
to the complaint as exhibits, and documents incorporated by
reference in the complaint.” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010).
Importantly, “the complaint is to be construed liberally, and
all reasonable inferences must be drawn in the plaintiff's
favor.” Ginsburg v. City of Ithaca, 839 F. Supp. 2d 537,
540 (N.D.N.Y. 2012) (citing Chambers v. Time Warner, Inc.,
282 F.3d 147, 152 (2d Cir. 2002)). If the complaint and its
additional materials—when viewed through that pro-plaintiff
lens—are not enough to raise the plaintiff's right to relief
on a claim above the speculative level, that claim must be
dismissed. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
B. Leave to Amend
Under Rule 15, “a party may amend its pleading only with
the opposing party's written consent or the court's leave. The
court should freely give leave when justice so requires.” FED.
R. CIV. P. 15(a)(2). However, justice does not require a party
to be given leave to amend if amendment would be futile.
Foman v. Davis, 371 U.S. 178, 182 (1962).
When “a plaintiff seeks to amend the complaint while a
motion to dismiss is pending,” a court's options to deal with
the motion to dismiss range “from denying the motion as
moot to considering the merits of the motion in light of the
amended complaint.” Donato v. Serv. Experts, LLC, 2018
WL 4660375, at *2 (N.D.N.Y. Sept. 28, 2018). If a proposed
amendment would not fix a defect identified in a motion to
dismiss, permitting amendment would of course be futile. See
IBEW Local Union No. 58 Pension Tr. Fund & Annuity Fund
v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d
Cir. 2015) (“The standard for denying leave to amend based
on futility is the same as the standard for granting a motion
to dismiss.”).
IV. DISCUSSION
Defendants initially attacked Peck's complaint from six
different directions. However, two of those arguments were
mooted when plaintiff abandoned five counts of her original
complaint in her proposed amended complaint.
This leaves the Court with four remaining arguments to
consider. First, defendants argue that plaintiff has failed to
adequately plead personal involvement for several defendants
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as required for her discrimination claims. Second, defendants
argue that plaintiff's conspiracy claims are inadequately pled,
especially in light of the intracorporate conspiracy doctrine.
Third, defendants argue that plaintiff has failed to state a First
Amendment retaliation claim. And fourth, defendants argue
that plaintiff's New York common law torts each fail for a
different reason. Each argument will be tackled in turn.
A. Section 1981
But before getting into defendants’ arguments, the Court
notes that both parties missed a fundamental flaw in Peck's
§ 1981 claims. Namely, the Second Circuit has held that “§
1981 does not provide a ... private right of action against
state actors.” Duplan v. City of N.Y., 888 F.3d 612, 621 (2d
Cir. 2018). Instead, “the express cause of action for damages
created by § 1983 constitutes the exclusive federal remedy
for violation of the rights guaranteed in § 1981 by state
governmental units ....” Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 733 (1989).
*7 Municipalities and municipal employees are state
actors. See, e.g., Whaley v. City Univ. of N.Y., 555 F.
Supp. 2d 381, 400-01 (S.D.N.Y. 2008). As a consequence,
courts in the Second Circuit have dismissed § 1981 claims
against municipalities and their employees—even when the
employees are sued in their individual capacities. Duplan, 888
F.3d at 616, 621 (dismissing § 1981 retaliation claim against
City of New York because § 1983 was sole remedy); Gonzalez
v. City of N.Y., 377 F. Supp. 3d 273, 284-85 (S.D.N.Y. 2019)
(dismissing claims against individual defendants sued in
individual capacities as municipal employees under Duplan’s
reasoning).
Peck's coworkers are all municipal employees, and are
therefore state actors. Compl. ¶¶ 7-16. By extension, § 1983
is the sole federal remedy for a discrimination claim against
defendants. Duplan, 888 F.3d at 621. Counts IV and X of the
proposed amended complaint must therefore be dismissed in
their entirety and against all defendants. See, e.g., Gonzalez,
377 F. Supp. 3d at 284-85; see also J.S. v. T'Kach, 714 F.3d
99, 103-05 (2d Cir. 2013) (affirming district court's sua sponte
dismissal of claim where unsustainable on face of complaint).
B. Adequacy of Allegations of Discrimination
“A plaintiff who claims ... discrimination in public
employment in violation of the Fourteenth Amendment may
bring suit [under] § 1983.” Naumovski v. Norris, 934 F.3d 200,
212 (2d Cir. 2019).
A § 1983 claim has two global elements: (1) that the plaintiff
suffered a deprivation of a right secured by the Constitution
and laws of the United States; and (2) that deprivation was at
the hands of a person acting under color of state law. Feingold
v. New York, 366 F.3d 138, 159 (2d Cir. 2004).
The Equal Protection clause of the Fourteenth Amendment
prohibits disparate treatment by a public employer on the
basis of race, gender, or religion. See, e.g., Greene v.
Brentwood Union Free Sch. Dist., 966 F. Supp. 2d 131, 145
(E.D.N.Y. 2013) (considering § 1983 claim sounding in equal
protection based on race, gender, and religion).
Title VII and the NYSHRL provide alternate bases of liability
for employers who engage in discrimination based on race,
gender, or religion. See, e.g., Zarda v. Altitude Express, Inc.,
883 F.3d 100, 149 n.15 (2d Cir. 2018) (Lynch, J., dissenting)
(noting that claims for gender, race, and religion under Title
VII are analyzed identically); Bermudez v. City of N.Y., 783 F.
Supp. 2d 560, 586 (S.D.N.Y. 2011) (same for NYSHRL).
Although there are certainly differences between § 1983, Title
VII, and the NYSHRL, Naumovski, 934 F.3d at 212, the same
elements apply to each, at least at the pleading stage, See Guity
v. Uniondale Union Free Sch. Dist., 2017 WL 9485647, at
*13 (E.D.N.Y. Feb. 23, 2017).
To that end, discrimination claims under Title VII, § 1983, or
the NYSHRL come in at least three varieties: (1) disparate
treatment; (2) hostile work environment; and (3) retaliation.
See Demoret v. Zegarelli, 451 F.3d 140, 144 (2d Cir. 2006),
(listing types of discrimination claimed by plaintiff under all
three statutes) overruled on other grounds by Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
For a disparate treatment claim, that standard requires a
plaintiff to plead: (1) “that she is a member of a protected
class”; (2) that she was qualified for her position or the
position she pursued; (3) “that she suffered an adverse
employment action”; and (4) that she “can sustain a
minimal burden of showing facts suggesting an inference of
discriminatory motivation[.]” Littlejohn v. City of N.Y., 795
F.3d 297, 311 (2d Cir. 2015). That burden is “reduced” at the
motion to dismiss stage. See id.
*8 But light burden or no, the plaintiff must still allege facts
“supporting a facially plausible inference that the defendants’
actions were motivated by discriminatory animus.” Bidot v.
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Cty. of Suffolk, 2020 WL 6385072, at *6 (E.D.N.Y. Aug. 20,
2020) (cleaned up). “[B]ald assertions of discrimination ...,
unsupported by any comments, actions, or examples of
similarly-situated individuals outside of [the plaintiff's]
protected class being treated differently” to allow an inference
of discriminatory motive “are implausible and insufficient to
survive a motion to dismiss.” Jackson v. Cty. of Rockland,
450 F. App'x 15, 19 (2d Cir. 2011) (summary order) (citing
Iqbal, 556 U.S. at 680-81 (dismissing complaint alleging
malicious infliction of harsh conditions of confinement
because of “religion, race, and/or national origin” without
factual allegations to back claim up)).
Alternatively, a plaintiff can plead a hostile work environment
if she can show that “the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working
environment.” Littlejohn, 795 F.3d at 320-21. The conduct
complained of must be: (1) objectively severe enough that a
reasonable person would find it “hostile or abusive”; and (2)
subjectively perceived as abusive by the victim. Id. at 321.
Episodic incidents are not enough; the misconduct must be
“continuous,” “concerted,” or “pervasive.” Id.
Finally, to plausibly allege retaliation, a plaintiff need only
allege “(1) participation in a protected activity; (2) that the
defendant knew of the protected activity; (3) an adverse
employment action; and (4) a causal connection between
the protected activity and the adverse employment action.”
Littlejohn, 795 F.3d at 316. Once again, though, the plaintiff's
burden at the Rule 12(b)(6) stage is “reduced.” Id.
1. Religious Discrimination
Before addressing the individual defendants’ personal
involvement, the Court notes that Peck has failed to
plausibly allege discrimination on the basis of religion. 7 Her
complaint's sole factual reference to discrimination of that
sort consists of a single sentence: “Upon information and
belief, one or more [d]efendants also mocked and disparaged
[p]laintiff's religious belief[s] and/or practices to each other
and/or” her coworkers. Compl. ¶ 46.
That one allegation, void of any details as to context or even
content cannot be enough to sustain a claim of religious
discrimination. The Court cannot find that Peck has plausibly
tied any adverse actions in her complaint to religious
discrimination when the proposed amended complaint gives
no suggestion as to when any discriminatory comment would
have been made, or by whom. To whatever extent plaintiff's
Title VII, § 1983, and NYSHRL claims rely on religious
discrimination, those claims must be dismissed. See, e.g.,
Gaddy v. Waterfront Comm'n, 2014 WL 4739890, at *5-6
(S.D.N.Y. Sept. 19, 2014) (dismissing § 1983 claim as
“devoid of factual allegations to support a plausible inference
of intentional discrimination”).
2. Gender Discrimination
Peck's allegations of gender discrimination are stronger, but
not by enough. The sum total of the specific allegations
of gender discrimination in the complaint are: (1) plaintiff
claims “[u]pon information and belief” that male co-workers
were not denied injury benefits (although plaintiff's lone
comparator to support this allegation is a female); and (2)
plaintiff claims that she was passed over for promotion to
sergeant twice, although one of the officers promoted was a
female. Compl. ¶¶ 33-34, 35, but see id. ¶ 55 (identifying
as comparator for benefits White female Sergeant Jane
DeMarco).
*9 Courts routinely reject complaints relying on
comparisons this threadbare. See Williams v. N.Y.C. Health
& Hosp. Corp., 2010 WL 2836356, at *4 (E.D.N.Y. July 16,
2010) (dismissing Title VII claim where plaintiff only alleged
that “[u]pon information and belief, males got paid when they
were out sick but females [did] not” but failed to specify any
facts to support claim). This Court sees no reason to set itself
apart on that score.
These two threadbare comparisons aside, Peck only offers
vague and conclusory allegations; for example plaintiff
alleges that she was “subjected to conduct designed to
degrade and demean her on the basis of her race, gender,
religion, and/or protected activity.” Compl. ¶ 37. These
allegations are not enough to save her claims of gender
discrimination, either. See, e.g., Kunik v. N.Y.C. Dep't of
Educ., 436 F. Supp. 3d 684, 696-97 (S.D.N.Y. 2020)
(dismissing discrimination claim because “[p]laintiff fails
to identify any evidence of [discriminatory] remarks ...
negative comments about others in her protected classes,
or any evidence to show discriminatory intent or disparate
treatment” where only allegations of discrimination were
conclusory).
In short, Peck has failed to plausibly allege that she was
discriminated against on the basis of gender. To whatever
extent her Title VII, § 1983, and NYSHRL claims depend on
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gender discrimination, those claims must also be dismissed.
Sosa v. N.Y.C. Dep't of Educ., 368 F. Supp. 3d 489,
499 (E.D.N.Y. 2019) (adopting report and recommendation
dismissing disparate treatment claim where only allegation to
support discriminatory animus was allegation that non-Black
coworkers were given favorable treatment compared to Black
plaintiff because comparators were not alleged with sufficient
specificity).
3. Personal Involvement: Section 1983
However, as a brief review of the factual recitation above
should make clear, Peck's allegations of racial discrimination
are more substantial and cannot be so easily resolved.
Accordingly, the Court will at last consider defendants’
arguments in favor of dismissal.
Unlike Title VII, which can only be brought against an
employer, a § 1983 discrimination claim can be brought
against “any individual responsible for the discrimination.”
Naumovski, 934 F.3d at 212 (cleaned up). However, a plaintiff
must prove that the individual she pursues under § 1983 was
personally involved in her alleged constitutional violation.
Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006).
“A defendant in a § 1983 action may not be held liable
for damages for constitutional violations merely because he
held a high position of authority.” Victory v. Pataki, 814 F.3d
47, 67 (2d Cir. 2016). Traditionally, a plaintiff advancing
a claim of § 1983 discrimination in the Second Circuit
would have to prove a defendant's personal involvement
by providing evidence that: (1) the defendant was a direct
participant in the alleged violation; (2) the defendant failed to
correct the violation after learning about it through a report
or appeal; (3) the defendant created or allowed to continue
a policy or custom under which the violation occurred;
(4) the defendant was grossly negligent in supervising
subordinates who committed the violation; or (5) the
defendant exhibited deliberate indifference by not acting on
information suggesting that the violations were occurring.
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir.
2013).
*10 But the continued viability of that test for personal
involvement found itself on thin ice after Iqbal. 556 U.S.
662. That case may be best known for undergirding the
now-familiar plausibility pleading standard that governs
pleadings and motions to dismiss those pleadings. Id. at
678-79. However, it also held that “[g]overnment officials
may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior.”
Id. at 676. Whether any but the first of the five paths
to personal involvement previously allowed in the Second
Circuit remained open after that holding was anyone's guess
for several years afterwards.
But the Second Circuit answered the uncertainty last year
in Tangreti v. Bachmann. 983 F.3d 609, 618 (2d Cir. 2020).
The answer was a simple one: “there is no special rule
for supervisory liability. Instead, a plaintiff must plead and
prove that each [g]overnment-official defendant, through
the official's own individual actions, has violated the
Constitution.” Id. (internal citations and quotation marks
omitted). That is to say, “[t]he violation must be established
against the supervisory official directly.” Id.
Defendants argue that Peck has failed to adequately allege
personal involvement for seven of her party opponents: (1)
Conway; (2) Cassalia; (3) DeMari; (4) Curry-Clarry; (5)
Smith; (6) Pellizzari; and (7) Gonzalez. The Court will
consider the allegations against each defendant in turn.
a. Conway
Peck's proposed amended complaint lays four allegedly
discriminatory acts at Conway's feet: (1) Conway's potentially
making the final decision on Sergeant promotions on
Gonzalez's recommendation; (2) not remedying plaintiff's
discriminatory work environment after she brought it to
his attention on June 18, 2020; (3) consulting with Curry-
Clarry before she put plaintiff on administrative leave after
plaintiff complained about her desk being searched; and (4)
authorizing Pellizzari to threaten plaintiff with suspension
without pay and ordering her to surrender her duty equipment
on March 2, 2021. Compl. ¶¶ 34, 40-41, 54.
From the jump, Peck's allegation that Conway failed to
remedy the discriminatory conduct against her at the Sheriff's
Office after June 18, 2020 essentially argues that he was
deliberately indifferent to an ongoing violation. Compl. ¶ 40;
See Grullon, 720 F.3d at 139 (attaching personal involvement
for deliberate indifference to information suggesting violation
is occurring). Yet Tangreti demands more. 983 F.3d at 618.
Plaintiff must allege that Conway actively participated in a
constitutional violation, and this allegation does not further
that end. See id.
However, from the deferential vantage point of a motion
to dismiss, the remaining allegations against Conway
sufficiently support personal involvement in constitutional
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violations for Peck's claims to survive. Reading all inferences
in plaintiff's favor, the Court must assume that Conway took
Gonzalez's recommendations as to who should be promoted
to Sergeant and chose three White people and one Hispanic
person for promotion despite plaintiff's superior credentials.
Ginsburg, 839 F. Supp. 2d at 540 (requiring district courts
to make all permissible inferences in plaintiff's favor on
Rule 12(b)(6) motions). Plaintiff's superior credentials then
allow for the “minimal” inference of discriminatory animus
required to sustain a discrimination claim. Littlejohn, 795 F.3d
297, 311.
Peck's remaining two allegations of discrimination by
Conway are an even closer call, but the Court still
must let them pass through defendants’ motion. True,
whether “consulting” with one of plaintiff's supervisors and
“authorizing” another to engage in allegedly discriminatory
conduct stretches Tangreti’s exacting personal involvement
requirements thin. 983 F.3d at 618. Also true, there is next to
nothing in the complaint tying either plaintiff's administrative
leave or threatened suspension to plaintiff's race.
*11 While that latter point may spell trouble for the last
two allegations as a straightforward disparate treatment claim,
they nevertheless adequately support a claim for retaliation.
Peck has alleged that Conway was aware of her
complaints concerning discrimination by other Sheriff's
Office employees. Compl. ¶ 52. Plaintiff was also put on
administrative leave shortly after submitting a complaint
alleging discrimination, allowing for a plausible inference of
retaliatory intent. Id. ¶ 41. The same permissible inference
arises from Conway's allegedly authorizing plaintiff to be
threatened with a suspension less than a month after she
requested an EEOC right to sue letter. Id. ¶¶ 52, 54.
In short, Peck has alleged that Conway was aware of multiple
complaints of discrimination brought by plaintiff, each of
which was closely followed by an adverse action in which he
had a hand. Accordingly, plaintiff's § 1983 disparate treatment
and retaliation claims against Conway must survive.
b. Cassalia
Peck only alleges two acts by Cassalia: (1) not remedying
the discriminatory practices she pointed out at the June 18,
2020 open forum; and (2) him dismissing her complaints
concerning having her vehicle taken away on June 23, 2020.
Compl. ¶¶ 40, 42.
Both allegations amount only to inaction, while disparate
treatment and retaliation claims require plaintiff to allege—
and eventually prove—an adverse action. Littlejohn, 795 F.3d
at 311, 316. And a hostile work environment claim requires
plaintiff to prove Cassalia's participation in an extreme and
ongoing abusive environment. Id. at 320-21.
Neither allegation Peck has brought forward against Cassalia
amounts to an adverse action. Lee v. Healthfirst, Inc., 2007
WL 634445, at *14 (S.D.N.Y. Mar. 1, 2007) (holding that
“inactions by management are not adverse actions” for
employment discrimination). Similarly, neither amounts to
Cassalia's participation in any hostile work environment.
Accordingly, neither allegation survives Tangreti. 983 F.3d
at 618 (requiring defendant to personally contribute to
constitutional violation for § 1983 liability to attach).
Plaintiff's § 1983 claims for both discrimination and
retaliation under Counts V and XII against Cassalia must be
dismissed.
c. DeMari
Peck's allegations against DeMari are slightly more
substantial. There are five in all: (1) the denial of plaintiff's
disability benefits on February 18, 2020; (2) DeMari's
demand that plaintiff return the keys to her police vehicle;
(3) De Mari's alleged instigation of an internal affairs
investigation over plaintiff's leaving work early; (4) sending
Civil Deputies to plaintiff's home to deliver personnel
paperwork that could have been sent by other means; and
(5) attempting to suspend plaintiff for three days for not
completing Appendix C of her leave request. Compl. ¶¶ 33,
42-43, 53-54.
Those five allegations establish DeMari's personal
involvement in alleged discrimination and retaliation. As for
the first point, Peck has alleged that a white female sergeant
suffered a similar accident shortly before plaintiff's injury and
was approved for the same benefits. That meets plaintiff's
reduced burden for allowing a disparate treatment claim to
survive a Rule 12(b)(6) motion. Littlejohn, 795 F.3d at 311.
*12 The remainder of the allegations all closely followed
protected speech by Peck and allow for a permissible
inference of retaliation. Compl. ¶¶ 42-43, 53-54 (DeMari
demanding return of keys and initiating investigation within
days of written discrimination complaint, sending officers to
plaintiff's home less than week after plaintiff requested right
to sue letter, and threatening suspension without pay less
than one month after plaintiff requested right to sue letter).
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Plaintiff's claims against DeMari must survive defendants’
Rule 12(b)(6) motion.
d. Curry-Clarry
Against Curry-Clarry, Peck's allegations amount to: (1) an
insufficient and inaccurate investigation into plaintiff's claim
that Jonathan, Kelly, and Trask rifled through plaintiff's desk;
and (2) a general failure to ameliorate the discriminatory
atmosphere of which plaintiff complained. Compl. ¶¶ 44,
47-52. For the same reasons that proved fatal to plaintiff's
allegations against Cassalia, Curry-Clarry's mere inaction in
resolving plaintiff's complaint does not meet the requisite
level of personal involvement for § 1983 liability to attach.
Tangreti, 983 F.3d at 618.
However, the Second Circuit has made plain that a failure to
investigate a claim can be retaliatory if it is “in retaliation
for some separate, protected act by the plaintiff.” Fincher
v. Depository Tr. & Clearing Corp., 604 F.3d 712, 722 (2d
Cir. 2010). Peck has alleged that, in retaliation for her earlier
complaints of discrimination, Curry-Clarry gave short shrift
to plaintiff's claims that her desk had been rifled through by
Jonathan and Trask. Compl. ¶ 44. That is enough to state
personal involvement in a claim of retaliation, and plaintiff's
§ 1983 claim must survive as to Curry-Clarry.
e. Smith
Next, defendants take issue with Peck's allegations of
personal involvement for Smith. The only allegations against
Smith are that he knew that plaintiff had complained to the
EEOC and had threatened her with discipline. Compl. ¶¶ 47,
50. But plaintiff has also alleged that the threat was for failing
to submit “Appendix C” with her leave request when no other
officer has been required to submit that form. Id. ¶¶ 50-51.
Once again, the deferential standard on a motion to dismiss
compels the Court to take that allegation as true. Ginsburg,
839 F. Supp. 2d at 540. Viewed as true, it is plausible that
Peck was singled out by Smith and threatened with discipline
on overblown charges because she spoke out concerning
discrimination. That allegation is enough to support personal
involvement in § 1983 retaliation by Smith. Plaintiff's claim
of retaliation against Smith must survive.
f. Pellizzari
Defendants also object to the proposed amended complaint's
relative lack of allegations against Pellizzari. Peck accuses
Pellizzari of: (1) not stopping Jonathan and Trask from
discriminating against plaintiff; (2) moving plaintiff's office;
(3) assigning plaintiff menial tasks; and (4) threatening
plaintiff with suspension for failing to submit an “Appendix
C” with her leave request. Compl. ¶¶ 44-45, 54.
Once again, not stopping discrimination is not enough—
plaintiff must allege that Pellizzari was an active participant.
Tangreti, 983 F.3d at 618. Plaintiff's first claimed act of
discrimination by Pellizzari thus fails. See, e.g., id. The
remainder of the allegations nevertheless plausibly establish
personal involvement in retaliation claims, notwithstanding
defendants’ arguments to the contrary.
Whether moving an employee's office is an adverse action
under the retaliation rubric may become an issue at summary
judgment, but plaintiff has nevertheless alleged enough to
withstand defendants’ Rule 12 motion. See, e.g., Jordan v.
Cayuga Cty., 2004 WL 437459, at *6 (N.D.N.Y. Feb. 9, 2004)
(considering on summary judgment whether moving office
without further allegations of adverse change in employment
conditions constituted adverse action for retaliation). The
same is true of whether plaintiff's assigned tasks were
sufficiently adverse. See, e.g., Bowen-Hooks v. City of N.Y.,
13 F. Supp. 3d 179, 214 (E.D.N.Y. 2014) (considering
whether assignment of menial tasks was adverse on summary
judgment).
*13 And of course, the logic that compelled the Court to
allow Peck's claims concerning the threatened suspension to
move forward against Conway apply with equal force here. In
other words, plaintiff has adequately alleged three potentially
adverse actions against Pellizzari. Those claims must survive.
g. Gonzalez
Peck's claims of discrimination against Gonzalez stem
entirely from his decision not to either select or recommend
plaintiff for promotion to Sergeant. Compl. ¶ 34. Those claims
survive for precisely the same reasons they survived against
Conway above.
The Court notes, however, that both promotion decisions
predated any of Peck's protected activities. Compare Compl.
¶ 34 (Gonzalez denying plaintiff promotion for second time
in November 2019), with id. ¶ 38 (complaining for first
time to Jonathan and Trask on June 11, 2020). Of course,
plaintiff cannot prove that her protected speech caused a
hiring decision that predated it by six months. See, e.g., Adams
v. City of N.Y., 837 F. Supp. 2d 108, 123 (E.D.N.Y. 2011)
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(holding that adverse actions occurring prior to any protected
activity “cannot be retaliatory as a matter of law and logic.”).
Plaintiff's retaliation claims against Gonzalez under Count
XII must be dismissed.
4. Personal Involvement: NYSHRL
Though the analysis is not quite the same, personal
involvement is also an essential component to NYSHRL
claims.
Under the NYSHRL, there are two pathways to individual
liability. Gorman v. Covidien, LLC, 146 F. Supp. 3d 509,
521-22 (S.D.N.Y. 2015). First, a person may be held liable
as an employer. See Townsend v. Benjamin Enters., Inc., 679
F.3d 41, 57 (2d Cir. 2012). An employer has “an ownership
interest in the relevant organization or the power to do
more than carry out personnel decisions made by others.”
Id. (internal citations and quotation marks omitted). The
archetypal example of an employer is an individual with the
power to hire or fire. See Ahmad v. N.Y.C. Health & Hosps.
Corp., 2021 WL 1225875, at *13 (S.D.N.Y. Mar. 31, 2021).
Second, a co-worker can be held personally liable as an
aider and abettor “if they [personally] participate in the
conduct giving rise to a discrimination claim.” Feingold,
366 F.3d at 158-59 (cleaned up). Counterintuitive as it may
seem, a coworker who by all accounts is the sole source of
discriminatory misconduct is still culpable not as a principal,
but as an aider and abettor. Conklin v. Cty. of Suffolk, 859
F. Supp. 2d 415, 436 (E.D.N.Y. 2012) (noting that defendant
may be held liable for aiding and abetting allegedly unlawful
discrimination by employer even where actions are predicate
for employer's vicarious liability).
That is because the NYSHRL prohibits discrimination by
employers, so any misconduct by an employee who lacks
the requisite authority to be classified as an employer
only aids and abets the employer's discrimination. Compare
N.Y. EXEC. LAW § 296(1)(a) (making it unlawful for
“employer” to discriminate on basis of race or gender identity
or expression, among others), with id. § 296(6) (“It shall
be an unlawful discriminatory practice for any person to
aid, abet, incite, compel[,] or coerce the doing of any of
the acts forbidden under this article[.]”). By extension, a
coworker who participates in discriminatory misconduct can
be held liable under the NYSHRL as long as he participates
in misconduct for which an employer is also liable, either
directly or vicariously. Ahmad, 2021 WL 1225875, at *13.
*14 But the obvious counterpoint also holds true: a
coworker cannot aid and abet the employer if the employer
itself cannot be held liable. See Jain v. McGraw-Hill Cos.,
Inc., 827 F. Supp. 2d 272, 277 (S.D.N.Y. 2011) (“[L]iability
must first be established as to the employer/principal before
accessorial liability can be found as to an alleged aider and
abettor.”). And imputing liability to an employer under the
NYSHRL is no mean feat. Vicarious liability under that
statute requires the plaintiff to prove that “the employer
encourage[d], condone[d], or approve[d] of the conduct.”
Maney v. Corning, Inc., 547 F. Supp. 2d 221, 230 (W.D.N.Y.
2007) (citing Int'l Healthcare Exch., Inc. v. Glob. Healthcare
Exch., LLC, 470 F. Supp. 2d 345, 361 (S.D.N.Y. 2007)
(collecting cases)); See Totem Taxi, Inc. v. N.Y. State Hum. Rts.
Appeal Bd., 480 N.E.2d 1075, 1077 (N.Y. 1985).
Comparing the personal involvement requirements under §
1983 and the NYSHRL, there are two apparent differences.
First, unique to the NYSHRL is a requirement that the
misconduct in question be fairly attributable to the plaintiff's
employer. Jain, 827 F. Supp. 2d at 277. Second, unlike
§ 1983, the NYSHRL allows for a limited amount of
supervisory liability if the supervisor actively condoned the
discriminatory behavior. Maney, 547 F. Supp. 2d at 230.
As a consequence, the analysis for personal involvement
under the NYSHRL mostly tracks with the analysis under
§ 1983, except liability is narrower in circumstances where
no employer can be held liable for a coworker's conduct,
yet broader if there are allegations that an employer
did not actively participate in discriminatory behavior but
nevertheless condoned it.
To navigate the extent to which those two distinctions have
practical consequences, the first step is sorting out who among
Peck's defendants qualifies as an employer. The NYSHRL
seems to define that term narrowly to only include those with
the authority to hire, fire, and discipline. See Hoit v. Cap. Dist.
Transp. Auth., 2018 WL 2324050, at *12 (N.D.N.Y. May 22,
2018).
Even so, plaintiff has plausibly alleged that every defendant
attacking the complaint for a lack of personal involvement
is either an employer within the meaning of the NYSHRL
or has worked with an employer's approval. Every defendant
that has argued a lack of personal involvement either sits
atop the Sheriff's Office food chain and can thus for now
safely be assumed to have hiring and firing authority (Conway
and Cassalia), has threatened Peck with discipline (DeMari,
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Smith, and Pellizzari), or allegedly worked in concert with a
person with hiring authority (Gonzalez).
The only close call is Curry-Clarry. The proposed amended
complaint offers precious little support for Curry-Clarry's
capacity to discipline, and Peck does not offer an alternative
employer that her alleged misconduct could have aided and
abetted.
However, Peck has alleged that Curry-Clarry investigated
misconduct. Compl. ¶ 44. Though not the strongest support
for Curry-Clarry's status as an employer, that alleged fact
nevertheless allows for the plausible inference that where the
power to investigate leads, the power to punish follows close
behind. Plaintiff's NYSHRL claims against Curry-Clarry
remain intact for now. Accordingly, there is an employer to
answer for every discriminatory and retaliatory act plaintiff
alleges against these seven defendants, and the Court need
not dismiss any NYSHRL claims that survived the § 1983
personal involvement analysis.
As a second step, the Court must determine whether any
claims dismissed under § 1983 for a lack of personal
involvement can nevertheless survive under the NYSHRL's
slightly laxer standard of supervisory liability.
*15 Upon careful review, they cannot. Peck adequately
pled direct personal involvement against every defendant
except for Cassalia, so whether supervisory liability would
also attach is a moot point. As for Cassalia, Peck has not
adequately alleged that he “encourage[d], condone[d], or
approve[d]” of any alleged misconduct. Maney, 547 F. Supp.
2d at 230. Plaintiff's only allegations against him concern
his not remedying discrimination once it was brought to
his attention. Compl. ¶¶ 40, 42. But there is a world of
difference between not addressing discrimination and actively
condoning it. Holding Cassalia liable without that affirmative
step is impermissible, even under the NYSHRL.
Accordingly, Counts III and IX of the proposed amended
complaint must be dismissed against Cassalia. See Maney,
547 F. Supp. 2d at 230; but see, e.g., Mosier v. State
Univ. of N.Y., 2020 WL 42830, at *7 (E.D.N.Y. Jan. 2,
2020) (refusing to dismiss NYSHRL employer claim where
allegations included comments by employer defendant about
“covering for” abuser). Otherwise, Peck's NYSHRL claims
must remain intact along the same lines as her § 1983 claims.
C. Conspiracy
Proving a § 1983 conspiracy requires a plaintiff to show: “(1)
an agreement between two or more state actors or between
a state actor and a private entity; (2) to act in concert to
inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). “[C]onspiracies
are by their very nature secretive operations, and may have
to be proven by circumstantial, rather than direct, evidence.”
Id. That does not shelter a complaint from dismissal if it
brings only “conclusory, vague, or general allegations that the
defendants have engaged in a conspiracy.” Ciambriello v. Cty.
of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (internal citations
and quotation marks omitted).
Unlike her § 1985 conspiracy claims, Peck did not voluntarily
dismiss her § 1983 conspiracy claims in her proposed
amended complaint. But neither did she defend them in her
opposition to defendants’ motion.
It is not hard to see why. Courts in the Second Circuit
recognize the “intracorporate conspiracy doctrine,” which
holds that the “officers, agents, and employees of a single
corporate entity are legally incapable of conspiring together.”
Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008) (internal
citations and quotation marks omitted).
The Second Circuit has routinely applied the doctrine to §
1985 claims, although it has not yet applied it to claims under
§ 1983. Ali v. Connick, 136 F. Supp. 3d 270, 282 (E.D.N.Y.
2015). However, most courts in this Circuit have applied the
intracorporate conspiracy doctrine to § 1983 conspiracies as
well, reasoning that which statute a court is applying does not
alter the doctrine's foundational logic. Chamberlain v. City
of White Plains, 986 F. Supp. 2d 363, 388 (S.D.N.Y. 2013)
(collecting cases).
That logic runs like this: a conspiracy by definition must
involve multiple people. Chamberlain, 986 F. Supp. 2d at
388. But if everyone involved in the conspiracy acted as
an agent of the same corporate entity, in reality the acts
were not borne out by a conspiracy of individuals, but by
a single corporate actor. See id. Because municipalities are
themselves corporations, the same logic has been extended
to local governments as well. See Broich v. Inc. Vill. of
Southampton, 650 F. Supp. 2d 234, 247 (E.D.N.Y. 2009)
(applying intracorporate conspiracy doctrine to village).
There is, however, an exception to the intracorporate
conspiracy doctrine. If the alleged conspirators are
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“motivated by an improper personal interest separate and
apart from that of their principal,” they may still conspire.
Chamberlain, 986 F. Supp. 2d at 388. For example,
“where law enforcement allegedly exercises official duties in
unconstitutional ways ... to secure personal benefit,” those
law enforcement officers can enter a conspiracy. Alvarez v.
City of N.Y., 2012 WL 6212612, at *3 (S.D.N.Y. Dec. 12,
2012). Fittingly enough, this exception is commonly referred
to as the “personal stake” exception. Ali, 136 F. Supp. 3d at
282-83.
*16 As an initial matter, this Court agrees that the logic
behind the intracorporate conspiracy doctrine carries over
from § 1985 to § 1983. See Chamberlain, 986 F. Supp.
2d at 388 (collecting cases for principle that intracorporate
conspiracy doctrine should apply to § 1983 claims as well).
What is more, Peck has not identified any uniquely unique
benefit for any defendant that would justify invoking the
personal stake exception. Ali, 136 F. Supp. 3d at 282-83.
Courts have employed the personal stake exception where
police officers have infringed the plaintiff's rights to cover up
for their use of excessive force, engaged in race-based false
arrests to pad their numbers for promotion, or acted out of
pure spite. See id. (collecting cases).
The only motives plaintiff alleges are retaliation and
discrimination. Although there is an argument to be made
that acting under either mental state is not in the County's
best interest, applying the personal stake exception in this
case would allow every discrimination and retaliation claim
in an employment setting would become an exception to
the otherwise-broad exception of intracorporate insulation.
For obvious reasons, that cannot be the rule. Accordingly,
Count VI of the proposed amended complaint must be
dismissed against all defendants. See, e.g., Chamberlain,
389-90 (dismissing claim of conspiracy to discriminate on
basis of race against officers of police department under
intracorporate conspiracy doctrine).
D. First Amendment Retaliation
A plaintiff hoping to prove out a claim of First Amendment
retaliation must plausibly allege that “(1) h[er] speech or
conduct was protected by the First Amendment; (2) the
defendant took an adverse action against h[er]; and (3) there
was a causal connection between this adverse action and the
protected speech.” Cox v. Warwick Valley Cent. Sch. Dist.,
654 F.3d 267, 272 (2d Cir. 2011). If the plaintiff is a public
employee, there is a two-part inquiry to determine whether
her speech is protected. Garcetti v. Ceballos, 547 U.S. 410,
418 (2006).
The Court begins by asking “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 ....”
Garcetti, 547 U.S. at 418 (citation omitted). Alternatively,
if the answer is yes, then the plaintiff may have a viable
First Amendment claim, but only if the government entity did
not have an “adequate justification for treating the employee
differently from any other member of the general public.” Id.
A matter of public concern “relat[es] to any matter of
political, social, or other concern to the community.” Singer
v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013). “Whether an
employee's speech addresses a matter of public concern
must be determined by the content, form, and context
of a given statement, as revealed by the whole record.”
Id. An employee's motive in speaking is not dispositive
standing alone. Sousa v. Roque, 578 F.3d 164, 173 (2d
Cir. 2009). However, “[a]n employee who complains solely
about h[er] own dissatisfaction with the conditions of h[er]
own employment is speaking upon matters only of personal
interest.” Id. at 174.
Peck's First Amendment retaliation claim is a close call.
Remember, plaintiff has alleged that “[a]t a June 18, 2020
forum on race held at Onondaga Community College,
[p]laintiff spoke to ... Conway and Cassalia. She reported the
discriminatory behavior of ... Kelly ..., Jon ..., and Trask. Both
assured her not to worry.” Compl. ¶ 40.
*17 As plaintiff's airing of a workplace grievance makes
plain, the content of plaintiff's would-be protected speech
concerned a personal interest rather than a public one. See
Singer, 711 F.3d at 339 (charging court to analyze content
of speech in assessing whether it was of public or private
interest). But on the other hand, the context seems just as
plainly to be public. Id. (charging court to consider context as
well). Plaintiff broached the conversation at a public forum
discussing the plainly public issue of race, and plaintiff's own
complaints touched on the same theme. Compl. ¶ 40.
Accordingly, the deciding factor is the form of Peck's
expression. Singer, 711 F.3d at 339. The Court has more
questions than answers on that final point. Did plaintiff make
her complaint as part of the forum, as if she were a member
of the public? Or was she simply there as part of her job
in the Community Relations Department, and brought it up
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because it was an opportunity when she had Conway and
Cassalia in the same room? Plaintiff's single paragraph does
not provide much help on that front, but it does not really
need to. Drawing all reasonable inferences in plaintiff's favor,
the ambiguity of the form and the apparently public nature
of the exchange is enough to make plaintiff's claim plausible.
Plaintiff's First Amendment retaliation claim must survive
defendants’ motion.
The Court notes, however, that Peck does not allege any novel
retaliatory conduct related to this instance of speech. Instead,
the alleged retaliatory acts plaintiff relies on for support are
the same as the retaliatory acts for her Equal Protection
retaliation claims. By extension, the proposed amended
complaint's lack of allegations concerning Cassalia's personal
involvement for race-based discrimination and retaliation
applies with equal force to Peck's First Amendment retaliation
claim. Tangreti, 983 F.3d at 618 (requiring direct participation
in alleged violation to sustain personal involvement in § 1983
claim). Count XI of the proposed amended complaint must be
dismissed as to Cassalia as well.
E. Intentional Infliction of Emotional Distress
New York requires four elements to sustain a claim of
intentional infliction of emotional distress: (1) “extreme and
outrageous conduct”; (2) “intent to cause, or disregard of a
substantial probability of causing, severe emotional distress”;
(3) “a causal connection between the [outrageous] conduct
and injury”; and (4) “severe emotional distress.” Howell v.
N.Y. Post Co., 612 N.E. 2d 699, 702 (N.Y. 1993).
This species of tort is disfavored by New York courts. See
Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 158 (2d
Cir. 2014) (noting that intentional infliction of emotional
distress “remains a highly disfavored tort under New York
law.” (cleaned up)). In particular, the first element of
outrageous conduct is “rigorous, and difficult to satisfy.”
Medcalf v. Walsh, 938 F. Supp. 2d 478, 488 (S.D.N.Y. 2013)
(quoting Howell, 612 N.E. 2d at 702)). In fact, the conduct
alleged must be “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. Am. Home Prods. Corp., 448 N.E.2d
86, 90 (N.Y. 1983).
“Insults, bullying, and general harassment do not usually
constitute a claim for [intentional infliction of emotional
distress] under New York law.” Gorman, 146 F. Supp. 3d
at 535. Neither does failing to investigate or appropriately
respond to claims of harassment to “two, three, or four
complaints.” Turley, 774 F.3d at 161 (noting that in vast
majority of cases failing to respond to complaints is not
enough to support intentional infliction of emotional distress
claim but upholding jury verdict on that claim when
supervisor failed to act on observed harassment for three years
and actively blocked investigation into threats).
*18 As a result, “New York courts regularly deny intentional
infliction of emotional distress claims in employment
discrimination cases.” Daniels v. Health Ins. Plan, 2005 WL
1138492, at *3 (S.D.N.Y. May 12, 2005) (collecting cases).
In fact, the Second Circuit has held that forcing a plaintiff to
take a polygraph under suspicion of theft solely because of
her race is not enough to state a claim for intentional infliction
of emotional distress. Martin v. Citibank, N.A., 762 F.2d 212,
220 (2d Cir. 1985).
Measured against that high bar, Peck's intentional infliction
of emotional distress claims cannot help but fall short.
Before June of 2020, plaintiff alleges a series of “insults,
bullying, and general harassment.” These allegations are not
enough to state a claim for intentional infliction of emotional
distress by default. See Gorman, 146 F. Supp. 3d at 535.
Neither do denials of benefits, threats of suspension, or faulty
investigations stack up. See Ifill v. United Parcel Serv., 2005
WL 736151, at *1, 7 (S.D.N.Y. Mar. 29, 2005) (finding that
claims that defendant “harassed, discriminated, and retaliated
against [p]laintiff” did not state cause of action in absence
of claims of sexual harassment or battery, threats, public
humiliation, false accusations, or permanent deprivation of
employment). Plaintiff's intentional infliction of emotional
distress claims under Count XIII must therefore be dismissed.
See, e.g., id.
F. Tortious Interference
Defendants next argue that Peck has failed to state a claim for
tortious interference with a contract.
Under New York law, “the elements of tortious interference
with contract are (1) the existence of a valid contract between
the plaintiff and a third party; (2) the defendants’ knowledge
of the contract; (3) the defendant's intentional procurement of
the third-party's breach of the contract without justification;
(4) actual breach of the contract;” and (5) resulting damages.
Kirch v. Liberty Media Corp., 449 F.3d 388, 401 (2d Cir. 2006)
(internal citations and quotation marks omitted).
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However, “[w]hen the claim arises in the employment context
and the defendants are co-employees, the plaintiff must allege
that the defendants-employees exceeded the bounds of their
authority in order to satisfy the ‘third-party’ requirement.”
Wolongevicz v. Town of Manlius, 2018 WL 3769857, at *17
(N.D.N.Y. Aug. 8, 2018). “A supervisor is considered to
have acted outside the scope of his employment if there is
evidence that the supervisor's manner of interference involved
independent tortious acts such as fraud or misrepresentations,
or that he acted purely from malice or self-interest.” Id.
Peck's theory for her tortious interference claim is that the
CBA guaranteed her that the County would not “discriminate
in a manner contrary to law with regard to the application
of the terms and conditions” of the CBA. Compl. ¶ 107.
By extension, plaintiff seems to be arguing that because
she experienced discrimination, the CBA's guarantee that the
County would not discriminate was breached.
But there is a glaring hole in Peck's claim that seems to
have escaped both parties’ attention. Specifically, § 301 of
the Labor Management Relations Act of 1947 (“§ 301”)
mandates that federal law apply to all claims that turn on
interpreting a CBA. See 29 U.S.C. § 185(a); Lingle v. Norge
Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988) (“[I]f
the resolution of a state-law claim depends upon the meaning
of a collective-bargaining agreement, the application of state
law ... is pre[ ]empted.”).
*19 Of course, determining whether a defendant induced
the County to breach the CBA requires determining whether
the CBA was actually breached. See Kirch, 449 F.3d at 401
(including actual breach as element of tortious interference
with contract). And determining whether a contract was
breached inevitably requires interpreting the contract. See
Anderson v. Aset Corp., 329 F. Supp. 2d 380, 383 (W.D.N.Y.
2004), aff'd, 416 F.3d 170 (2d Cir. 2005).
Determining whether the CBA was breached under New
York law would thus require this Court to impermissibly
apply state law in interpreting a CBA. Lingle, 486 U.S.
at 405-06. Accordingly, Peck's tortious interference with a
contract claim under Count XIV must be dismissed against
all defendants as pre-empted by § 301. See, e.g., Wilson v.
New York, 2017 WL 9674497, at *28-29 (E.D.N.Y. Jan. 24,
2017) (dismissing tortious interference claim based on CBA
and alleging discrimination as preempted by § 301).
G. Prima Facie Tort
Finally, defendants argue that Peck's claims of prima facie tort
must also be dismissed. To that end, New York law requires
a plaintiff to prove four elements to sustain a claim of that
sort: “(1) intentional infliction of harm; (2) resulting in special
damages; (3) without excuse or justification; (4) by an act that
would otherwise be lawful.” Twin Labs., Inc. v. Weider Health
& Fitness, 900 F.2d 566, 571 (2d Cir. 1990).
The problem with Peck's claim of prima facie tort is that
it pursues redress for precisely the same injuries that her
discrimination and retaliation claims are looking to remedy.
Courts routinely dismiss prima facie tort claims as duplicative
under these precise circumstances, and this Court will join
their number. See, e.g., Hamilton v. Cty. of Onondaga, 2018
WL 4554496, at *20 (N.D.N.Y. Sept. 21, 2018) (collecting
cases for proposition that prima facie tort claims are dismissed
where duplicative of other claims). Count XV of the proposed
amended complaint must be dismissed.
H. Leave to Amend and Time to Answer
To the extent that the claims in the proposed amended
complaint have not been dismissed above as futile, the Court
sees no reason to deny Peck's motion for leave to amend.
Neither have defendants pointed to one. Accordingly, plaintiff
is granted leave to amend her complaint consistent with both
the proposed amended complaint and this opinion.
Lastly, defendants’ motion to wait to answer the complaint
until after the Court rules on its pending motion to dismiss is
moot. Under Rule 12(a)(4), serving a motion under Rule 12
resets the responsive pleading deadline to “within [fourteen]
days after notice of the court's” deciding the motion.
V. CONCLUSION
In summary, Peck's claims under Counts: (IV) race
discrimination under § 1981; (VI) conspiracy to discriminate
under § 1983; (X) retaliation under § 1981; (XIII) intentional
infliction of emotional distress; (XIV) tortious interference
with a contract; and (XV) prima facie tort must all be
dismissed. Additionally, all claims against defendant Cassalia
individually have been dismissed, and so he must be
dismissed from the case. Similarly, plaintiff's claims sounding
in religious and gender discrimination must be dismissed as
insufficiently pled.
The remaining claims going forward are: (I) Title VII
race discrimination against the County; (II) NYSHRL race
discrimination against the County; (III) NYSHRL race
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discrimination against defendants Conway, Trask, Jonathan,
Kelly, DeMari, Curry-Clarry, Smith, Pellizzari, Gonzalez,
and the Does; (V) Section 1983 race discrimination; (VII)
Title VII retaliation against the County; (VIII) NYSHRL
retaliation against the County; (IX) NYSHRL retaliation
against Conway, Trask, Jonathan, Kelly, DeMari, Curry-
Clarry, Smith, Pellizzari, Gonzalez, and the Does; (XI) First
Amendment § 1983 retaliation; and (XII) Equal Protection §
1983 retaliation.
*20 Therefore, it is
ORDERED that
1. Defendants’ motion to dismiss plaintiff Kamilla Peck's
complaint is GRANTED in part and DENIED in part;
2. Plaintiff Kamilla Peck's motion to amend her complaint
is GRANTED in part and DENIED in part;
3. Plaintiff Kamilla Peck's claims under Counts: (IV)
race discrimination under § 1981; (VI) conspiracy to
discriminate under § 1983; (X) retaliation under § 1981;
(XIII) intentional infliction of emotional distress; (XIV)
tortious interference with a contract; and (XV) prima
facie tort, are DISMISSED;
4. Defendant Jason Cassalia is DISMISSED;
5. Plaintiff Kamilla Peck's claims for discrimination based
on religion and gender are DISMISSED;
6. Plaintiff Kamilla Peck's claims under Counts: (I)
Title VII race discrimination against the County; (II)
NYSHRL race discrimination against the County;
(III) NYSHRL race discrimination against defendants
Conway, Trask, Jonathan, Kelly, DeMari, Curry-
Clarry, Smith, Pellizzari, Gonzalez, and the Does;
(V) Section 1983 race discrimination; (VII) Title
VII retaliation against the County; (VIII) NYSHRL
retaliation against the County; (IX) NYSHRL retaliation
against Conway, Trask, Jonathan, Kelly, DeMari, Curry-
Clarry, Smith, Pellizzari, Gonzalez, and the Does; (XI)
First Amendment § 1983 retaliation; and (XII) Equal
Protection § 1983 retaliation, remain; and
7. Defendants are directed to answer the amended
complaint in accordance with this memorandum-
decision and order.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 3710546
Footnotes
1 The Court notes that plaintiff is not entitled to amend her complaint as of right because she took more than
twenty-one days to cross-move to amend. See FED. R. CIV. P. 15(a)(1)(B) (providing that plaintiff may amend
pleading as matter of course once within twenty-one days of service of responsive pleading or Rule 12
motion).
2 As will be discussed further below, the Court will take the facts of the proposed amended complaint as true
in considering the cross-motions for partial dismissal and amendment of the complaint.
3 The proposed amended complaint is less than clear about what plaintiff's prior role was or when she left it
to work at the Community Relations Unit. However, other allegations in the proposed amended complaint
suggest that plaintiff used to be stationed at the jail. Compl. ¶ 36.
4 The complaint is a model of murkiness on what, precisely, this “denial” meant. Plaintiff alleges that her benefits
were approved in October 2019. Compl. ¶ 33. Whether she had been granted benefits in October of 2019
but they were not renewed in February of 2020 or whether they were retroactively withdrawn is left to the
imagination. See id.
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5 There is no indication that she has been fired or quit, either.
6 Pagination Corresponds with CM/ECF.
7 It is unclear to what extent plaintiff even alleges a religious discrimination claim. The counts of her proposed
amended complaint sounding in discrimination make no mention of religion, but her complaint as a whole
makes several references to religious discrimination. Compare Dkt. 16-2, pp. 19-31 (counts of proposed
amended complaint making no allegations of religious discrimination), with Compl. ¶¶ 25, 37, 46 (alleging
defendants’ discriminating against plaintiff on basis of religion).
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Phillips v. Schenectady Child Support Unite, Slip Copy (2025)
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2025 WL 895035
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Julius PHILLIPS, Plaintiff,
v.
SCHENECTADY CHILD SUPPORT
UNITE, et al., Defendants.
No. 1:24-CV-853 (BKS/PJE)
|
Signed March 24, 2025
Attorneys and Law Firms
Julius Phillips, 800 State Street, Apt. 105, Schenectady, New
York 12307, Plaintiff pro se.
REPORT-RECOMMENDATION AND ORDER 1
PAUL J. EVANGELISTA, UNITED STATES
MAGISTRATE JUDGE
I. In Forma Pauperis
*1 Plaintiff pro se Julius Phillips (“plaintiff”) commenced
this action on July 5, 2024, by filing a complaint. See Dkt.
No. 1. In lieu of paying this Court's filing fee, he submitted
an application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP
application and determines that he financially qualifies to
proceed IFP. 2 Pursuant to this review, this Court must now
assess the merits of plaintiff's complaint pursuant to 28 U.S.C.
§ 1915. 3
II. Initial Review
A. Legal Standard
28 U.S.C. § 1915 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 or appeal (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).
“Thus, it is a court's responsibility to determine that a plaintiff
may properly maintain his complaint before permitting him
to proceed further with his action.” Praileau v. Fischer, 930
F. Supp. 2d 383, 394 (N.D.N.Y. 2013).
Where, as here, the plaintiff proceeds pro se, “the court
must construe his submissions liberally and interpret them
to raise the strongest arguments that they suggest.” Kirkland
v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per
curiam) (internal quotation marks omitted). As the Second
Circuit stated,
[t]here are many cases in which we
have said that a pro se litigant is
entitled to special solicitude, that a
pro se litigant's submissions must
be construed liberally, and that such
submissions must be read to raise the
strongest arguments that they suggest.
At the same time, our cases have
also indicated that we cannot read
into pro se submissions claims that
are not consistent with the pro se
litigant's allegations, or arguments that
the submissions themselves do not
suggest, that we should not excuse
frivolous or vexatious filings by pro
se litigants, and that pro se status does
not exempt a party from compliance
with relevant rules of procedural and
substantive law ....
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir. 2006) (internal quotation marks, citations, and footnote
omitted); see also Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too
numerous to count, we have reminded district courts that
when [a] plaintiff proceeds pro se, ... a court is obligated to
construe his pleadings liberally.”) (internal quotation marks
and citations omitted). Thus, the Court is not required to
accept unsupported allegations that are devoid of sufficient
facts or claims. Although detailed allegations are not required
at the pleading stage, the complaint must still include enough
facts to provide the defendants with notice of the claims
against them and the grounds upon which these claims are
based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see
also Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007).
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Ultimately, the plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“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.”).
*2 “The [Second Circuit]’s ‘special solicitude’ for pro se
pleadings has its limits, because pro se pleadings still must
comply with ... the Federal Rules of Civil Procedure. 4 ”
Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL
6841952, at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo
v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). 5 Specifically, Rule 8
provides that a pleading which sets forth a claim for relief
shall contain, among other things, “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 ... 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.” Flores v. Graphtex, 189 F.R.D. 54,
55 (N.D.N.Y. 1999) (internal quotation marks and citations
omitted). Rule 8 also requires the pleading to include “(1)
a short and plain statement of the grounds for the court's
jurisdiction ... and (3) a demand for the relief sought ....” FED.
R. CIV. P. 8(a). Although “[n]o technical form is required,”
the Federal Rules make clear that each allegation contained
in the pleading “must be simple, concise, and direct.” FED.
R. CIV. P. 8(d).
Further, Rule 10 provides in pertinent part that:
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence—and each
defense other than a denial—must be
stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 55
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too a heavy burden in terms of defendants’ duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal ... is usually
reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Id. (citations omitted).
B. Plaintiff's Complaint 6
On a civil complaint form, plaintiff checks the boxes
that indicate that this Court has subject matter jurisdiction
pursuant to federal question and diversity of citizenship
jurisdiction. See Dkt. No. 1 at 3. Plaintiff states that his Fourth,
Fifth, Seventh, and Fourteenth Amendment rights have been
violated because “[c]hild support say they take $83 weekly
but they don't they take $124.50 weekly and it is still be [sic]
deducted from my check. Child support also said I'm paying
for two kids when I only had one child with the defendant.”
Id. at 4. Plaintiff alleges that the “fraud agency called child
support ... is frauding me stealing from me and ... violated my
civil rights my constitutional rights and my New York State
rights.” Dkt. No. 1-1 at 1. “[T]hey had no case no contract or
bond with my signature no consent form with my signature no
injured party and they still persist on stealing my hard earned
money.” Id. “I never [p]ut my signature on anything but the
agreement for the video conference that's all if they say my
signature is on anything else it is fraudulent I never signed
anything or never gave the consent for anything....” Id. at 2.
“I never volunteered or gave consent to join the child support
program and I know that I cant be forced into no contractual
contract thats what it looks like Child Support is doing to me.”
Dkt. No. 1-2 at 1. “They say I owe over $6000 dollars so that's
over $20 to where the magistrate called for a trial and never
had the jury I asked for....” Dkt. No. 1-1 at 6. “I am being sued
for a debt that is not mines [sic].” Dkt. No. 1-2 at 1. Plaintiff
claims that he requested “department record[s] related to the
debt” but “never got it.” Dkt. No. 1-1 at 1.
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*3 Plaintiff contends that “child support agreements are
equivalent to interstate contracts” and violate the Federal
Consumer Credit Protection Act because they act as an
“excessive wage garnishment.” Dkt. No. 1-1 at 2-3 (citing 15
U.S.C. § 1167(a)). He states that he is a “victim of forced
labor” and “feel[s] that way is because” if he “can't work
or give them payment they (child support) will suspend my
[driver's] license which is not legal they (child support) can't
do that they would throw me in jail for how ever long ....” Id.
at 6-7.
Plaintiff summarized his complaint by stating:
I ask for this case #66054k1 to please
be appealed and dropped under all
this wrong doing they doing. And I
really want to know how or what
the magistrate ruling was in the fact-
finding hearing if I neglected my son
for 12 months no contact and no plan
for the future of my son or did I
abandoned [sic] my son for 6 months I
don't see how he would come up with
this ruling when the Court appointed
lawyer told for m[e] so [sic] told the
Court and the magistrate that I was in
his life and we talk.
Dkt. No. 1-1 at 8. “I would like to ... start a § 1983 law suit
[sic] and a fraud lawsuit under ... for fraudulent filings of
information returns [sic] against all involved in the list I wrote
down.” Id. Plaintiff requests the Court to award damages
of $5,000,000.00, and alternatively, $10,000,000.00 for “the
violation [of his] right [sic] the stress the blood and tears [of
his child's mother] hold [his] child [sic] not letting [plaintiff]
see him ... and the money back that's been stolen from [him].”
Dkt. No. 1 at 4-5; Dkt. No. 1-1 at 8.
C. Analysis
Liberally construing plaintiff's complaint, he seeks to bring
claims under 42 U.S.C. § 1983 7 against the Schenectady
County Child Support Unit; the Division of Child Support
Enforcement Newport News District Office; the Schenectady
County Family Court; Bruce J. Wagner, Support Magistrate;
Dylan Reilly, Deputy County Attorney; and Rebecca
Bauscher, child attorney. 8 , 9 See generally Dkt. No. 1; Dkt.
No. 1-1 at 1, 8-9; Dkt. No. 1-3, see also Triestman, 470 F.3d at
475. (“This policy of liberally construing pro se submissions
is driven by the understanding that ‘[i]mplicit in the right of
self-representation is an obligation on the part of the court to
make reasonable allowances to protect pro se litigants from
inadvertent forfeiture of important rights because of their lack
of legal training.’ ”) (quoting Traguth v. Zuck, 710 F.2d 90,
95 (2d Cir. 1983)).
1. Rooker-Feldman Doctrine
*4 “Under the Rooker-Feldman doctrine, a federal district
court lacks authority to review a final state court order or
judgment where a litigant seeks relief that invites the federal
district court to reject or overturn such a final state court
order or judgment.” Gerken v. Gordon, No. 1:24-CV-00435
(MAD/CFH), 2024 WL 4608307, at *4 (N.D.N.Y. Oct.
29, 2024), report and recommendation adopted, No. 1:24-
CV-435 (MAD/CFH), 2024 WL 5001402 (N.D.N.Y. Dec. 6,
2024) (quoting Porter v. Nasci, No. 5:24-CV-0033 (GTS/
TWD), 2024 WL 1142144, at *4 (N.D.N.Y. Mar. 15, 2024)
(citations omitted), report and recommendation adopted,
2024 WL 3158645 (N.D.N.Y. June 25, 2024)); see Dorce v.
City of New York, 2 F.4th 82, 101 (2d Cir. 2021) (“The Rooker-
Feldman doctrine bars federal district courts from hearing
cases that in effect are appeals from state court judgments,
because the Supreme Court is the only federal court with
jurisdiction over such cases.”) (citing Rooker v. Fidelity Trust
Co., 263 U.S. 413 (1923) and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983)). “This includes
when a litigant seeks relief that invites a federal district court
to reject or overturn a final decision of a New York Family
Court as to a child support dispute brought in that state
court.” Gerken, 2024 WL 4608307, at *4 (quoting Sims v.
Kaufman, No. 23-CV-7927 (LTS), 2024 WL 757338, at *4
(S.D.N.Y. Feb. 14, 2024)) (citing Legister v. Radowitz, No.
1:20-CV-9330 (LLS), 2020 WL 7405672, at *3 (S.D.N.Y.
Dec. 16, 2020) (“A plaintiff's challenge in a federal district
court to the validity or enforcement of [a] child support order
itself is barred by the Rooker-Feldman doctrine.”)).
The Rooker-Feldman doctrine applies if: “(1) the plaintiff lost
in state court; (2) the plaintiff complains of injuries caused by
the state court judgment; (3) the plaintiff requests the district
court to review and reject the state court judgment; and (4)
the state court judgment was rendered before the proceedings
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commenced in the district court.” Gerken, 2024 WL 4608307,
at *4 (quoting DeMeo v. Kean, 754 F. Supp. 2d 435, 448
(N.D.N.Y. 2010)) (citing V.S. v. Muhammad, 595 F.3d 426,
430 (2d Cir. 2010)); see also Fernandez v. Turetsky, No. 12-
CV-4092 (SLT/MDG), 2014 WL 5823116, at *4 (E.D.N.Y.
Nov. 7, 2014) (collecting cases and noting that “[c]ourts have
repeatedly invoked the [Rooker-Feldman] doctrine in cases ...
in which plaintiffs challenge family court decrees setting child
support arrears”), aff'd, 645 F. App'x 103 (2d Cir. 2016)
(summary order).
Here, although many of plaintiff's assertions are unclear,
liberally read, plaintiff's complaint asks the Court to review
and reverse a child custody and child support order, invalidate
a judgment for child support arrears, reimburse monies that
were garnished against his wages, and order the Schenectady
County Family Court to provide him with information and
documentation that he previously requested. See generally
Dkt. No. 1, Dkt. No. 1-1, Dkt. No. 1-2. Plaintiff appears
to have “lost in state court,” complains of injuries caused
by a state court judgment, and asks the Court to invalidate
a state court's order regarding child support payments and
a state court's judgment for child support arrears that were
entered before the commencement of this proceeding. See
generally Dkt. No. 1-1, Dkt. No. 1-2, Dkt. No. 1-12. “Under
the Rooker-Feldman doctrine, this Court may not do so.”
Gerken, 2024 WL 4608307, at *4 (quoting Fernandez, 2014
WL 5823116, at *4); see, e.g., Phillips v. Wagner, No. 1:22-
CV-0833 (DNH/ML), 2022 WL 17406092, at *3 (N.D.N.Y.
Nov. 4, 2022) 10 (recommending dismissal for lack of subject
matter jurisdiction because “[the p]laintiff's claims, while
not entirely clear, seem to challenge an order by the Family
Court, issued before [the p]laintiff filed this action, in which
the Family Court determined that he owes child support ....
Thus, [the p]laintiff's claims for relief are barred by the
Rooker-Feldman doctrine ...”), report and recommendation
adopted, 2022 WL 17403441 (N.D.N.Y. Dec. 2, 2022),
appeal dismissed, No. 23-68, 2023 WL 4445323 (2d Cir.
Apr. 25, 2023); Walker v. O'Connor, No. 1:22-CV-581 (DNH/
TWD), 2022 WL 2341420, at *6 (N.D.N.Y. June 29, 2022),
report and recommendation adopted, 2022 WL 2805462
(N.D.N.Y. July 18, 2022) (recommending dismissal of the
plaintiff's complaint where it “appears [the p]laintiff ‘lost’ in
New York State Family Court, complains of injuries caused
by that court's judgments, and asks this Court to invalidate
those judgments on the grounds that they violated her due
process rights.”).
*5 “[T]o the extent plaintiff could try to contend that his
claims are reviewable because they relate to the alleged
improper enforcement of the Family Court judgment rather
than the judgment itself ... Rooker-Feldman also bars such
claims because the enforcement is inextricably intertwined
with the state court judgment.” Sorenson v. Suffolk Cnty.
Child Support Enf't Bureau, No. 07-CV-03755 (JFB/AKT),
2009 WL 580426, at *7 (E.D.N.Y. Mar. 5, 2009) (citations
omitted); Fernandez, 2014 WL 5823116, at *4 (same);
see also Bowen v. Gordon, No. 1:24-CV-114 (LEK/DJS),
2024 WL 2053155, at *2 (N.D.N.Y. Feb. 20, 2024), report
and recommendation adopted, No. 1:24-CV-114 (LEK/DJS),
2024 WL 1826595 (N.D.N.Y. Apr. 26, 2024) (citations and
quotation omitted) (“The doctrine also bars federal courts
from considering claims that are ‘inextricably intertwined’
with a prior state court determination.”).
2. Younger Abstention Doctrine
“In the event that plaintiff's underlying state family court
proceeding 11 is currently pending, his request for this
Court's involvement would implicate the Younger abstention
doctrine.” Gerken, 2024 WL 4608307, at *4 (citing Younger
v. Harris, 401 U.S. 37 (1971)). Under the Younger
abstention doctrine, “federal courts [must] abstain from
taking jurisdiction over federal constitutional claims that
involve or call into question ongoing state proceedings.”
Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198
(2d Cir. 2002) (citing Younger, 401 U.S. at 43-44.). “This
doctrine of federal abstention rests foursquare on the notion
that, in the ordinary course, a state proceeding provides an
adequate forum for the vindication of federal constitutional
rights.” Id. (quoting Cullen v. Fliegner, 18 F.3d 96, 103
(2d Cir. 1994)). “[I]t is settled that for purposes of Younger
abstention that [sic] a proceeding is considered pending until
all appellate court remedies have been exhausted.” Reinhardt
v. Com. of Mass. Dep't of Soc. Servs., 715 F. Supp. 1253,
1255 (S.D.N.Y. 1989) (internal quotation marks and citation
omitted).
“Younger abstention is required when three conditions are
met: (1) there is an ongoing state proceeding; (2) an important
state interest is implicated in that proceeding; and (3) the
state proceeding affords the federal plaintiff an adequate
opportunity for judicial review of the federal constitutional
claims.” Diamond “D” Const. Corp, 282 F.3d at 198 (citing
Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001)). The
“Younger abstention is triggered only by three categories
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of state court proceedings: (1) state criminal prosecutions;
(2) civil proceedings that are akin to criminal proceedings;
and (3) civil proceedings that ‘implicate a State's interest
in enforcing the orders and judgments of its courts.’ ”
Amato v. McGinty, No. 1:17-CV-593 (MAD/ATB), 2017
WL 9487185, at *10 (N.D.N.Y. June 6, 2017), report and
recommendation adopted, No. 1:17-CV-00593 (MAD/ATB),
2017 WL 4083575 (N.D.N.Y. Sept. 15, 2017) (internal
quotations omitted) (quoting Sprint Communications, Inc. v.
Jacobs, 134 S.Ct. 584, 588).
Here, because plaintiff's complaint references ongoing child
custody and child support matters, see generally Dkt. No. 1,
“the Younger abstention conditions are clearly met.” Fishman
v. Off. of Ct. Admin. New York State Courts., No. 18-
CV-282 (KMK), 2020 WL 1082560, at *10 (S.D.N.Y. Mar.
5, 2020), aff'd, No. 20-1300, 2021 WL 4434698 (2d Cir.
Sept. 28, 2021). “First, state-court proceedings regarding the
appropriate child custody arrangement are ongoing in Family
Court and New York State appellate courts.” Id. Second, child
custody and child support disputes “are a matter rightfully
reserved for state courts.” Id. (citing Puletti v. Patel, No.
05-CV-2293 (SJ), 2006 WL 2010809, at *4 (E.D.N.Y. July
14, 2006) (“The United States Supreme Court ... has long
recognized that ‘the whole subject of the domestic relations
of ... parent and child[ ] belongs to the laws of the States and
not to the laws of the United States.”)); see also Reinhardt,
715 F. Supp. at 1256 (S.D.N.Y. 1989) (citing Moore v. Sims,
442 U.S. 415, 435 (1979) (“Questions of family relations ...
are traditionally an area of state concern.”)); Walker, 2022
WL 2341420, at *6 (“[I]t is well-settled that a custody
dispute raises important state interests.” (citations omitted));
Tomczyk v. New York Unified Ct. Sys., No. 19-CV-2753
(JS)(AYS), 2019 WL 2437849, at *3 (E.D.N.Y. June 10,
2019) (dismissing the plaintiff's complaint that “implicate[d]
the way that New York courts manage their own divorce
and custody proceedings–a subject in which ‘the states
have an especially strong interest.”) (citations and quotations
omitted). Third, “[a]fter the Family Court makes its final
disposition on custody and [child support] (or, if it has already
done so), Plaintiff may appeal that decision within the state
court system and raise all federal constitutional claims there.”
Fishman 2020 WL 1082560, at *11. Plaintiff has not alleged,
and the complaint does not indicate, that he has attempted to
appeal the Family Court's orders and judgments or received a
decision on such appeal(s). See generally Dkt. No. 1.
*6 Therefore, to the extent that plaintiff's child custody
and child support matters are still pending in New York
State court, the undersigned recommends that the Court
abstain from interfering. See Cogswell v. Rodriguez, 304 F.
Supp. 2d 350, 357 (E.D.N.Y. 2004) (applying the Younger
abstention doctrine to dismiss claims which arose from
“pending state court proceedings involving child support”)
(citation omitted); Bowman v. Morris, No. 8:19-CV-97 (BKS/
DJS), 2019 WL 5150196, at *6 (N.D.N.Y. Apr. 10, 2019),
report and recommendation adopted, 2019 WL 3759174
(N.D.N.Y. Aug. 9, 2019) (“Accordingly, to the extent that the
child support issues are continuing in Family Court, the Court
should abstain from interfering with that process.”); Walker,
2022 WL 2341420, at *6 (“[T]o the extent the custody dispute
is continuing in New York State Family Court, this Court
should abstain from interfering with that process.”).
Alternatively, because plaintiff's complaint raises an
allegation of fraud, see Dkt. No. 1-1 at 1, it is necessary
to address the exceptions to Younger and the situations in
which the Court should intervene. “Despite the strong policy
in favor of abstention, a federal court may nevertheless
intervene in a state proceeding upon a showing of bad faith,
harassment or any other unusual circumstance that would call
for equitable relief.” Diamond D. Const. Corp., 282 F.3d at
198 (quoting Younger, 401 U.S. at 54) (internal quotations
omitted). Plaintiff has the burden of establishing that one
of the Younger exceptions applies. See id. (“[A] plaintiff
who seeks to head off Younger abstention bears the burden
of establishing that one of the exceptions applies.”) (citing
Kirschner v. Klemons, 225 F.3d 227, 235-36 (2d Cir. 2000)).
“To meet the bad faith or harassment exception, the federal
plaintiff must show that the state proceeding was initiated
with and is animated by a retaliatory, harassing, or other
illegitimate motive.” Hunter v. McMahon, No. 20-CV-18
(LJV-MJR), 2024 WL 4362310, at *6 (W.D.N.Y. Sept. 30,
2024) (quoting Diamond D. Const. Corp., 282 F.3d at 199)
(emphasis omitted). In other words, the federal plaintiff “must
have no reasonable expectation of obtaining a favorable
outcome.” Diamond “D” Const. Corp., 282 F.3d at 199.
“A state proceeding that is legitimate in its purposes, but
unconstitutional in its execution—even when the violations
of constitutional rights are egregious—will not warrant the
application of the bad faith exception.” Id. (citing Schlagler
v. Phillips, 166 F.3d 439, 443-44 (2d Cir. 1999)).
To satisfy the extraordinary circumstance exception, the
plaintiff must demonstrate that the “the state court incapable
of fairly and fully adjudicating the federal issues before
it....” Diamond “D” Const. Corp., 282 F.3d at 201 (quoting
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Kugler v. Helfant, 421 U.S. 117, 124, (1975)). 12 “[T]he
Second Circuit has identified ‘two predicates for application
of this exception: (1) that there be no state remedy available
to meaningfully, timely, and adequately remedy the alleged
constitutional violation; and (2) that a finding be made that the
litigant will suffer ‘great and immediate’ harm if the federal
court does not intervene.’ ” Rhee-Karn v. Burnett, No. 13 CIV.
6132 (JPO), 2014 WL 4494126, at *6 (S.D.N.Y. Sept. 12,
2014) (quoting Diamond “D” Const. Corp., 282 F.3d at 201).
Plaintiff has failed to satisfy his burden of demonstrating
that any of the Younger exceptions apply. See Diamond D.
Const. Corp., 282 F.3d at 198. Concerning the bad faith
or harassment exception, plaintiff uses the term “fraud”
and claims that the proposed defendants are “frauding” and
“stealing” from him. Dkt. No. 1-1 at 1. Yet, he has not stated
how he was defrauded or any “illegitimate motive” behind
the proposed defendants’ actions. See Hunter, 2024 WL
4362310, at *6. Similarly, plaintiff has not alleged that he had
“no reasonable expectation of obtaining a favorable outcome”
at the outset of the underlying state court proceedings. See
Diamond “D” Const. Corp., 282 F.3d at 199. The root of
plaintiff's complaint is a simple disagreement with a state
court order that set forth his parenting time, child support
obligation, and entered a judgment for child support arrears.
*7 Further, plaintiff has failed to show that this matter
constitutes an extraordinary circumstance. See Diamond “D”
Const. Corp., 282 F.3d at 201. Plaintiff has not alleged,
and the complaint does not indicate, that he appealed the
underlying state court's custody and child support order(s) or
judgment(s) or filed an Article 78 13 proceeding challenging
the Child Support Unit's collection process. 14 “Absent a
showing that [the plaintiff has] actually sought and been
denied such relief, [plaintiff has] not plausibly alleged that
there exists no state remedy to meaningfully, timely, and
adequately remedy the alleged constitutional violations.”
Rhee-Karn, 2014 WL 4494126, at *6. Moreover, plaintiff has
not alleged that he will suffer from “ ‘great and immediate’
harm if the federal court does not intervene.” Id. Rather,
he requests his preferences: parenting time with the child, a
reduction of his child support obligation, and the return of
monies garnished from his paychecks. See generally Dkt. No.
1.
Plaintiff's allegations against defendants amount to
conclusory allegations and ones that can be resolved
in state court. See Evans v. Adams, No. 22-CV-3882
(KAM/JRC), 2024 WL 306240, at *4 (E.D.N.Y. Jan. 26,
2024) (“[C]onclusory statements accusing the state court of
violating the Constitution without more do not establish an
obstacle to ... full and fair determination” in state courts.);
Chapman v. Maycock, No. 21-CV-4940 (KAM/JRC), 2021
WL 6091749, at *4 (E.D.N.Y. Dec. 23, 2021) (holding that
“conclusory statements alleging family court's disregard of
the Constitution ... without more, are not sufficient to show
that [the plaintiff's] claims are not capable of being resolved
fairly in state court”).
Based on the foregoing, the undersigned concludes that
none of the Younger abstention exceptions apply. Therefore,
“it is recommended that plaintiff's complaint be dismissed
without prejudice 15 for lack of subject matter jurisdiction
under either Rooker-Feldman or Younger.” Gerken, 2024 WL
4608307, at *5. “However, due to these doctrines barring
such claims from proceeding, it is recommended that an
opportunity to amend not be afforded as no better pleading
can cure the lack of subject matter jurisdiction.” Id.
“[T]here is no requirement that a court address every single
potential ground for dismissal where it is clear that a claim
should be dismissed.” Gerken, 2024 WL 4608307, at *5
(quoting Dees v. Zurlo, No. 1:24-CV-1 (MAD/DJS), 2024
WL 2291701, at *13 (N.D.N.Y. May 21, 2024)) (citing, inter
alia, Curtis v. Greenberg, No. 22-252-CV, 2023 WL 6324324,
*2 n.3 (2d Cir. Sept. 29, 2023)). However, the undersigned
notes, for the sake of completeness, that there are several
additional, alternative grounds for dismissal.
3. Domestic Relations Abstention
*8 The Supreme Court
[l]ong ago observed that the whole
subject of the domestic relations of
husband and wife, parent and child,
belongs to the laws of the States and
not to the laws of the United States.
So strong is our deference to state law
in this area that we have recognized
a domestic relations exception that
divests the federal courts of power
to issue divorce, alimony, and child
custody decrees.
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Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12-13
(2004) (internal quotation marks and citations omitted),
abrogated on other grounds by Lexmark Int'l Inc. v. Static
Control Components, Inc., 572 U.S. 118 (2014); see also Ex
parte Burrus, 136 U.S. 586, 593-94 (1890) (“[T]he whole
subject of the domestic relations of husband and wife, parent
and child, belongs to the laws of the States and not to the
laws of the United States.”); Mansell v. Mansell, 490 U.S.
581, 587, (1989) (“[D]omestic relations are preeminently
matters of state law.”); United States v. Windsor, 570 U.S. 744,
766 (2013) (“State laws defining and regulating marriage,
of course, must respect the constitutional rights of persons;
but, subject to those guarantees, regulation of domestic
relations is an area that has long been regarded as a virtually
exclusive province of the States.”) (internal quotation marks
and citations omitted); Bowman, 2019 WL 5150196, at *5,
report and recommendation adopted, 2019 WL 3759174
(N.D.N.Y. Aug. 9, 2019) (“Under the domestic relations
exception to the jurisdiction of federal courts, cases involving
divorce, alimony, and child [support] remain outside federal
court jurisdiction.”) (citing Marshall v. Marshall, 547 U.S.
293, 308 (2006)).
“Under the domestic relations abstention doctrine[,] ... a
federal court [may] decline to exercise jurisdiction where
claims are on the verge of being matrimonial in nature and
there is no obstacle to their full and fair determination in
state courts.” Gerken, 2024 WL 4608307, at *5 (quoting
Ortiz v. Tinnerello, No. 3:20-CV-1782 (KAD), 2021 WL
11593793, at *4 (D. Conn. Jan. 20, 2021)); see Bey v.
Furman, No. 21-CV-4090 (WFK/RER), 2021 WL 3725987,
at *4 (E.D.N.Y. Aug. 23, 2021) (indicating that the plaintiff
challenging his duty to pay child support was “matrimonial
in nature”). “Courts in this circuit routinely dismiss actions
for lack of subject matter jurisdiction, due to the domestic
relations abstention doctrine, where the plaintiff is seeking
review of child custody [and child support] proceedings.”
Gerken, 2024 WL 4608307, at *6 (citing Neustein v. Orbach,
732 F. Supp. 333, 339-40 (E.D.N.Y. 1990) (holding that the
Court lacked jurisdiction because it could not resolve factual
disputes connected to domestic relations)); Dudley v. Hochul,
No. 5:24-CV-0048 (DNH/ML), 2024 WL 1906594, at *5
(N.D.N.Y. May 1, 2024) (same), report and recommendation
adopted sub nom. Dudley v. Hocul, 2024 WL 2399913
(N.D.N.Y. May 23, 2024); Pynn v. Pynn, No. 24-CV-508
(LJV), 2024 WL 3647783, at *8 (W.D.N.Y. Aug. 5, 2024)
(collecting cases and noting that “[c]ourts in this circuit
have found abstention appropriate when the plaintiff asked
a federal court to review and overturn state court rulings
related to child custody and divorce.”); Rotondo v. New York,
No. 5:17-CV-1065 (GLS/DEP), 2017 WL 5201738, at *4
(N.D.N.Y. Oct. 31, 2017) (“[It is manifestly clear that [the]
plaintiff's claims implicate the domestic-relations exception
to federal court jurisdiction. [The p]laintiff challenges a state-
court's determination denying him relief from a family court's
child support order, and [the] plaintiff's requests for relief
include removal of the family court proceeding to federal
court.”), report and recommendation adopted, 2017 WL
5198194 (N.D.N.Y. Nov. 9, 2017); Davis v. Kushner, No.
1:14-CV-00511 (MAD), 2014 WL 5308142, at *4 (N.D.N.Y.
Oct. 16, 2014) (recommending dismissal of the plaintiff's
claim as barred by the domestic relations exception where the
plaintiff sought “monetary damages for an unfavorable family
court ruling ...”).
*9 As discussed above, plaintiff challenges a child custody
and child support order(s), as well as a judgment for child
support arrears. See generally Dkt. No. 1, Dkt. No. 1-1, Dkt.
No. 1-2. On its face, plaintiff's complaint seeks monetary
damages for what he perceives to be unfavorable state court
rulings. See Davis, 2014 WL 5308142, at *4. However, “[t]he
doctrine of domestic relations abstention means that this
Court does not have jurisdiction over the plaintiff's claims.”
Sekou Camera v. N.Y.C. Dep't of Soc. Servs., No. 24-CV-5886
(AMD/TAM), 2024 WL 4107256, at *2 (E.D.N.Y. Sept. 5,
2024). Thus, the undersigned alternatively recommends that
plaintiff's complaint be dismissed without prejudice for lack
of subject matter jurisdiction under the domestic relations
abstention doctrine. See Remy v. New York State Dep't of Tax.
& Fin., 507 F. App'x 16, 18-19 (2d Cir. 2013) (summary
order) (dismissing complaint that sought “direct review” of
child support order in state family court); see also Hernandez
v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)
(“[W]here a court lacks subject matter jurisdiction, it also
lacks the power to dismiss with prejudice.”).
4. Sovereign Immunity
The Eleventh Amendment to the United States Constitution
states that “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. CONST. amend. XI. Applying this
principle, “[a]s a general rule, state governments and their
agencies may not be sued in federal court unless they have
waived their Eleventh Amendment immunity or there has
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been a valid abrogation of that immunity by Congress.”
Gerken, 2024 WL 4608307, at *6 (quoting Kisembo v.
N.Y.S. Off. of Child. & Fam. Servs., 285 F. Supp. 3d 509,
519 (N.D.N.Y. 2018)); see Garcia v. Paylock, No. 13-
CV-2868 (KAM), 2014 WL 298593, at *3 (E.D.N.Y. Jan. 28,
2014) (“Plaintiff's equal protection claims also may not be
brought directly under the Fourteenth Amendment because
the State has not waived its immunity or had that immunity
abrogated pursuant to that constitutional amendment.”). “This
jurisdictional bar applies regardless of the nature of the relief
sought.” Gerken, 2024 WL 4608307, at *6 (quoting Murawski
v. N.Y. State Bd. of Elections, 285 F. Supp. 3d 691, 695
(S.D.N.Y. 2018)) (quoting Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984)).
“[T]he immunity recognized by the Eleventh Amendment
extends beyond the states themselves to state agents and
state instrumentalities that are, effectively, arms of a state.”
Gerken, 2024 WL 4608307, at *7 (quoting Gollomp v. Spitzer,
568 F.3d 355, 366 (2d Cir. 2009) (internal quotation marks
and citation omitted)) (quoting Woods v. Rondout Valley Cent.
Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006));
see Marino v. City Univ. of New York, 18 F. Supp. 3d 320,
329 (E.D.N.Y. 2014) (explaining that sovereign immunity
bars “direct constitutional claim[s] brought directly against
a state entity”) (citing Santiago v. N.Y. State Dep't of Corr.
Servs., 945 F.2d 25, 30-32 (2d Cir. 1991)); see also Rubin v.
N.Y. State Dep't of Motor Vehicles, No. 10-CV-4119 (NGG),
2010 WL 3842011, at *1 (E.D.N.Y. Sept. 28, 2010) (“The
Eleventh Amendment bars suits against states, their agencies
whether the [p]laintiff seeks relief at law or in equity, absent
the state's consent to suit or an express or statutory waiver
of immunity.”) (citing Pennhurst State School & Hosp., 465
U.S. at 99-102).
a. Government Entities
The Schenectady County Child Support Collection Unit
appears to be a branch of New York State Child Support
Services operating under the New York State Department
of Social Services. Similarly, the Division of Child Support
Enforcement Newport News District Office appears to be
a subdivision of the Virginia State Department of Social
Services. 16 The Schenectady County Family Court is a
court that is part of the New York State Unified Court
System. 17 These entities are “arm[s] of the state for purposes
of sovereign immunity.” Gerken, 2024 WL 4608307, at *7
(citing Calderon v. N.Y.C. Dep't of Homeless Servs., No. 24-
CV-4631 (VEC), 2024 WL 3429884, at *2 (S.D.N.Y. July 16,
2024)) (“[A]s an agency of the State of New York, the New
York State Department of Social Services is an arm of the
State and is protected by Eleventh Amendment immunity.”);
see also Dixon v. Jordan, No. 23-CV-9227 (LTS), 2024 WL
37096, at *2 (S.D.N.Y. Jan. 2, 2024) (“Plaintiff's Section
1983 claims against the New York State Child Support
Services are therefore barred by the Eleventh Amendment
and are dismissed because they seek monetary relief against
a defendant who is immune from such relief.”) (citations
omitted); Dickson v. Schenectady Fam. Ct., No. 1:22-CV-499
(DNH/CFH), 2022 WL 16966549, at *3 (N.D.N.Y. Oct.
27, 2022), report and recommendation adopted, No. 1:22-
CV-499, 2022 WL 16961389 (N.D.N.Y. Nov. 16, 2022)
(quoting Vazquez v. New York, No. 1:22-CV-196 (GTS/CFH),
2022 WL 2390248, at *5 (N.D.N.Y. June 30, 2022)), report
and recommendation adopted sub nom. Vazquez Carbuccia v.
New York, 2022 WL 3100553 (N.D.N.Y. Aug. 4, 2022) (“This
Court has explained that the Schenectady County Family
Court is a part of the New York State Unified Court System
and is entitled to sovereign immunity.”) (internal quotations
omitted); Warden v. Virginia Dep't of Soc. Servs. (Pulaski
Cnty.), No. 7:23-CV-00775, 2023 WL 8481014, at *2 (W.D.
Va. Dec. 7, 2023) (“The court further notes that numerous
courts, including this one, have held that a county branch
of the Department of Social Services is considered a state
entity in Virginia and is entitled to Eleventh Amendment
immunity, which precludes any suit for money damages in
federal court.”) (citations omitted).
*10 Neither New York, nor Virginia, have “expressly
waived its sovereign immunity with respect to the claims
asserted in plaintiff's complaint.” Gerken, 2024 WL 4608307,
at *7 (citing Edelman v. Jordan, 415 U.S. 651, 673 (1974)
(“[W]e will find waiver only where stated by the most
express language or by such overwhelming implications
from the text as (will) leave no room for any other
reasonable construction.”) (internal quotations omitted))
(quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171
(1909)); see also Mamot v. Bd. of Regents, 367 F. App'x 191,
192 (2d Cir. 2010) (summary order) (“It is well-established
that New York has not consented to § 1983 lawsuits in
federal court[.]”). “Moreover, Congress has not abrogated
New York's sovereign immunity in enacting § 1983”. Gerken,
2024 WL 4608307, at *7 (citing Trotman v. Palisades
Interstate Park Comm'n, 557 F.2d 35, 39-40 (2d Cir. 1977));
see also Mayo v. Doe, 480 F. Supp. 3d 395, 402 (D. Conn.
2020) (holding that “[s]ection 1983 does not abrogate state
sovereign immunity”) (citing Quern v. Jordan, 440 U.S. 332,
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342 (1979)). Accordingly, plaintiff's § 1983 claims against the
Schenectady County Child Support Collection Unit, Division
of Child Support Enforcement Newport News District Office,
and Schenectady County Family Court are barred under the
Eleventh Amendment. See Corrado v. State of N.Y. Univ.
Stony Brook Police, Nos. 15-CV-7443, 15-CV-7444, 2016
WL 4179946, at *6 (E.D.N.Y. Aug. 5, 2016) (“Plaintiff's
claims ... fail because this defendant is an administrative arm
of Suffolk County, a municipality, and has no independent
legal identity .... [A]gencies of a municipality are not suable
entities because [u]nder New York law, departments that are
merely administrative arms of a municipality have no separate
legal identity apart from the municipality and therefore cannot
be sued.”) (internal quotations omitted) (quoting Omnipoint
Comm'ns, Inc. v. Town of Lagrange, 658 F. Supp. 2d 539, 552
(S.D.N.Y. 2009))
“The undersigned notes that a dismissal based on the doctrine
of sovereign immunity, is consequently a dismissal for lack
of subject matter jurisdiction.” Gerken, 2024 WL 4608307,
at *7 (quoting Griffith v. New York State, No. 5:23-CV-1266
(DNH/ML), 2024 WL 1641587, at *5 n.4 (N.D.N.Y. Mar.
20, 2024) (citations omitted)). Therefore, it is alternatively
recommended that plaintiff's claims against the Schenectady
County Child Support Collection Unit and Division of
Child Support Enforcement Newport News District Office
be dismissed without prejudice for lack of subject matter
jurisdiction. See id. (citing Abadi v. City of New York, 22-
CV-1560, 2023 WL 3295949, at *3 n.3 (2d Cir. May 8, 2023)
(summary order) (“Because the Court lacks subject matter
jurisdiction ... the amended complaint should be dismissed
without prejudice.”); Katz v. Donna Karan Co., L.L.C.,
872 F.3d 114, 116 (2d Cir. 2017) (“[A] complaint must be
dismissed without prejudice where the dismissal is due to the
court's lack of subject matter jurisdiction[.]”))
b. Dylan Reilly, Deputy County Attorney
i. Official Capacity Claim
Plaintiff named “Attorney-Reilly Dylian [sic]” on his list of
people he wanted to sue. Dkt. No. 1-1 at 9. He also attached to
his complaint a copy of a proposed Order of Support signed by
Dylan Reilly, Deputy County Attorney, Schenectady County
Attorney's Office, Department of Social Services (“Reilly”).
See Dkt. No. 3 at 4. Although plaintiff seeks to name Reilly
as a defendant in this action, his complaint does not directly
or implicitly raise any claims against Reilly. See generally
Dkt. No. 1. Further, the complaint is devoid of any factual
allegations concerning Reilly. See id. The only mentions
of Reilly in the complaint are the presence of their name
and the copy of the proposed order where their name is
highlighted and starred. The undersigned concludes that, as
to Reilly, plaintiff's complaint “in its current form fails to
state a claim for relief and fails to state the Court's subject
matter jurisdiction. As such, dismissal would be appropriate
pursuant to 28 U.S.C. §§ 1915(e) and 1915A.” Ajamian v.
Nimeh, No. 1:14-CV-0320 (GTS/CFH), 2014 WL 6078425,
at *7 (N.D.N.Y. Nov. 13, 2014)
Even, assuming arguendo, that plaintiff's complaint had
raised a claim against Reilly in their official capacity as a
deputy county attorney, such claims must still be dismissed
under the doctrine of sovereign immunity. “Sovereign
immunity bars not only suits against states themselves, but
also suits for damages against state officials acting in their
official capacities.” Chapman v. City of Albany, No. 1:23-
CV-686 (LEK/PJE), 2025 WL 295011, at *5 (N.D.N.Y. Jan.
24, 2025) (citing Kentucky v. Graham, 473 U.S. 159, 169
(1985)); see also Gollomp, 568 F.3d at 365. By signing the
proposed child support order as “Deputy County Attorney,
Schenectady County Attorney's Office, Department of Social
Services,” Dkt. No. 1-3 at 4, Reilly was clearly acting in
their official capacity as a state official, and, therefore, is
entitled to sovereign immunity. “Thus, plaintiff's claims for
damages against the state employees sued in their official
capacities are barred by the Eleventh Amendment.” Young
v. Lugo, No. 18-CV-4216(JFB)(AKT), 2019 WL 1492679,
at *3 (E.D.N.Y. Apr. 4, 2019) (citing Darcy v. Lippman,
356 F. App'x 434, 436-37 (2d Cir. 2009)) (“The Eleventh
Amendment likewise bars [plaintiff] from pursuing a claim
for damages against the individual defendants in their official
capacities”). Accordingly, the undersigned recommends that
plaintiff's claims against Reilly in their official capacity as
“Deputy County Attorney” be dismissed without prejudice
for lack of subject matter jurisdiction. See Gerken, 2024 WL
4608307, at *7.
ii. Individual Capacity Claim
*11 “Absolute immunity protects government officials from
suit arising out of acts associated with their ‘function as an
advocate.’ ” Dees v. Zurlo, No. 1:24-CV-1 (MAD/DJS), 2024
WL 2291701, at *10 (N.D.N.Y. May 21, 2024), aff'd sub
nom. Dees v. Knox, No. 24-1574-CV, 2025 WL 485019 (2d
Cir. Feb. 13, 2025) (quoting Jeanty v. Sciortino, 669 F. Supp.
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3d 96, 108 (N.D.N.Y. 2023)) (quoting Buari v. City of New
York, 530 F. Supp. 3d 356, 378 (S.D.N.Y. 2021)). “Absolute
immunity extends to ‘government attorneys defending civil
suits’ and ‘government attorneys who initiate civil suits.’ ”
Id. (quoting Jeanty, 669 F. Supp. 3d at 108) (quoting Spear
v. Town of West Hartford, 954 F.2d 63, 66 (2d Cir. 1992)).
“In determining whether an official is entitled to absolute
immunity, courts employ a functional’ approach, looking at
the nature of the function performed, not the identity of the
actor who performed it.” Id. (quoting Jeanty, 669 F. Supp. 3d
at 108) (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 394
(2d Cir. 2006)) (internal quotations omitted). “The principle
applies to functions of a government attorney that can fairly
be characterized as closely associated with the conduct of
litigation or potential litigation in civil suits – including
the defense of such actions.” Id. (quoting Jeanty, 669 F.
Supp. 3d at 108) (internal quotations omitted). “[O]nce a
court determines that challenged conduct involves a function
covered by absolute immunity, the actor is shielded from
liability for damages regardless of the wrongfulness of his
motive or the degree of injury caused.” Id. (quoting Jeanty,
669 F. Supp. 3d at 108) (quoting Bernard v. County of Suffolk,
356 F.3d 495, 503 (2d Cir. 2004) (citation omitted)).
It appears that plaintiff's allegations against Reilly stem
entirely from Reilly's functions as a Deputy County Attorney
for the Schenectady County Attorney's Office. Dees, 2024
WL 2291701, at *10. Reilly is a government attorney who
signed a proposed order affecting plaintiff's state court
litigation. See Dkt. No. 1-3 at 4. Therefore, the undersigned
concludes Reilly's act of filing the proposed order was
associated with their “function as an advocate” and “closely
associated with the conduct of litigation.” Dees, 2024 WL
2291701, at *10. Therefore, the undersigned recommends that
plaintiff's claims against Reilly in their individual capacity
be dismissed without prejudice for lack of subject matter
jurisdiction. See id.
5. Judicial Immunity
Liberally reading plaintiff's complaint and affording plaintiff
due solicitude, he names Bruce J. Wagner, Support Magistrate
(“Wagner”), as a defendant in this action. See Dkt. No. 1-1 at
9; Dkt. No. 1-3. “With minor exceptions, judges are entitled
to absolute immunity for actions relating to the exercise of
their judicial functions.” Gerken, 2024 WL 4608307, at *8
(quoting Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/
ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017))
(citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam)).
“Judicial immunity has been created for the public interest in
having judges who are ‘at liberty to exercise their functions
with independence and without fear of consequences.’ ” Id.
(quoting Zavalidroga, 2017 WL 8777370, at *8) (quoting
Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir. 2004)).
“Judicial immunity applies even when the judge is accused
of acting maliciously or corruptly.” Id. (citation omitted); see
Positano v. New York, No. 12-CV-2288 (ADS/AKT), 2013
WL 880329, at *4 (E.D.N.Y. Mar. 7, 2013) (explaining that
the plaintiff may not bring action against a judge for actions
taken in his judicial capacity, even when the actions violated
the ADA). “Family Court Support Magistrates, as New York
State judicial officers, enjoy [ ] judicial immunity, when
presiding over child support proceedings.” Id. (quoting Cora
v. Wright, No. 1:24-CV-0263 (LTS), 2024 WL 450247, at *2
(S.D.N.Y. Feb. 5, 2024)); see Dieujuste v. Sin, 731 F. Supp.
3d 440, 448 (E.D.N.Y.), reconsideration denied, 734 F. Supp.
3d 232 (E.D.N.Y. 2024), and aff'd, 125 F.4th 397 (2d Cir.
2025) (“As a Support Magistrate presiding over child support
proceedings, Judge Sin is unquestionably entitled to judicial
immunity.”)
*12 “Judicial immunity is immunity from suit, not just
immunity from the assessment of damages.” Gerken, 2024
WL 4608307, at *8 (quoting Zavalidroga, 2017 WL 8777370,
at *8) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
“The only two circumstances in which judicial immunity
does not apply is when he or she takes action ‘outside’ his
or her judicial capacity and when the judge takes action
that, although judicial in nature, is taken ‘in absence of
jurisdiction.’ ” Id. (citing Mireles, 502 U.S. at 11-12). “In
determining whether or not a judge acted in the clear absence
of all jurisdiction, the judge's jurisdiction is ‘to be construed
broadly, and the asserted immunity will only be overcome
when the judge clearly lacks jurisdiction over the subject
matter.’ ” Id. (quoting Pacherille v. Burns, 30 F. Supp. 3d 159,
163 (N.D.N.Y. 2014)) (quoting Ceparano v. Southampton
Just. Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary
order)). “Whether a judge acted in a judicial capacity depends
on the nature of the act [complained of] itself, i.e., whether
it is a function normally performed by a judge, and [on] the
expectations of the parties, i.e., whether they dealt with the
judge in his judicial capacity.” Id. (quoting Ceparano, 404 F.
App'x at 539 (internal quotation marks and citation omitted)).
“Further, if the judge is performing in his judicial capacity,”
he “ ‘will not be deprived of immunity because the action
he took was in error, was done maliciously, or was in excess
of his authority; rather, he will be subject to liability only
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when he has acted in the clear absence of all jurisdiction.’ ”
Id. (quoting Ceparano, 404 F. App'x at 539) (quoting Stump
v. Sparkman, 435 U.S. 349, 362 (1978)). “Judges are not,
however, absolutely ‘immune from liability for nonjudicial
actions, i.e., actions not taken in the judge's judicial capacity.’
” Id. (quoting Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009)
(quoting Mireles, 502 U.S. at 11)).
Plaintiff claims that Wagner is “performing duties he's
not lawfully to do,”, and doing “an accountants job and
determining what get [sic] deducted from [him].” Dkt. No.
1-1 at 3. Plaintiff further opines, “how is the magistrate
practicing law and accountant [sic] when given rights to only
practice law its [sic] fraud.” Id. at 4. He contends that his
“constitutional rights was [sic] violated cause they say I owe
over $20 dollars to where [sic] the magistrate called for a trial
and never had the jury I asked for.” Id. at 6. Plaintiff further
claims, “to my knowledge he do [sic] not have the authority
or jurisdiction cause [sic] he is not a judicial officer and also
he cannot sign into order for any type of money judgment or
court hearing ....” Dkt. No. 1-2 at 1.
Liberally construing plaintiff's complaint, he appears to argue
that Wagner “acted ... outside the bounds of [his] authority
during plaintiff's child support proceedings.” Gerken, 2024
WL 4608307, at *9 (quoting Dougal v. Lewicki, No. 1:23-
CV-1167 (DNH/CFH), 2023 WL 6430586, at *5 (N.D.N.Y.
Oct. 3, 2023), report and recommendation adopted, 2023
WL 7013384 (N.D.N.Y. Oct. 25, 2023) (internal quotations
omitted)). However, “[t]he scope of the judge's jurisdiction
must be construed broadly, such that a court acts in the
absence of all jurisdiction only when it does not have any
statutory or constitutional power to adjudicate the case.”
Id. (quoting Dickerson v. Siegal, No. 23-CV-3859 (EK/
LB), 2023 WL 6158833, at *3 (E.D.N.Y. Sept. 21, 2023)
(citations and internal quotation marks omitted)). Plaintiff's
contention that Wagner, as a support magistrate, did not
have the jurisdiction to calculate his support payment or
arrears is without merit. See Y.D. v. L.O., 77 Misc. 3d 964,
967, 182 N.Y.S.3d 534, 537 (N.Y. Fam. Ct. 2022) (“Family
Court Act § 439(a) empowers Support Magistrates to hear,
determine and grant any relief within the powers of the Court,
in proceedings properly before them.”) (internal quotations
omitted). 18 Further, even accepting plaintiff's allegations as
true, he has failed to demonstrate that Wagner acted in the
“complete absence of all jurisdiction.” Gerken, 2024 WL
4608307, at *9 (quoting Ceparano, 404 F. App'x at 539); see
Olszyk v. Thorne, No. 3:20-CV-0445 (TJM/ML), 2020 WL
5634328, at *5 (N.D.N.Y. June 17, 2020) (“The Complaint is
devoid of facts plausibly suggesting that Defendant [Judge]
Barrasse acted in the clear absence of all jurisdiction. As
a result, I recommend that the claims against Defendant
Barrasse be dismissed in their entirety based on the doctrine
of absolute judicial immunity.”), report and recommendation
adopted, 2020 WL 5633791 (N.D.N.Y. Sept. 21, 2020).
*13 Accordingly, Wagner “is immune from suit pursuant
to the doctrine of judicial immunity” as to plaintiff's claims
concerning “conduct taken in his capacity as a child support
magistrate.” Gerken, 2024 WL 4608307, at *9 (citing
Shtrauch v. Dowd, 651 F. App'x 72, 73-74 (2d Cir. 2016)
(summary order) (“Generally, ‘acts arising out of, or related
to, individual cases before the judge are considered judicial
in nature’ ”) (quoting Bliven, 579 F.3d at 210)); see also
Cora v. Wright, No. 1:24-CV-0263 (LTS), 2024 WL 450247,
at *3 (S.D.N.Y. Feb. 5, 2024) (“Because [the p]laintiff sues
Support Magistrate Wright for acts arising out of, or related
to, individual cases before [her], the doctrine of judicial
immunity applies to [the p]laintiff's claims under Section
1983 against her.”) (internal quotation marks and citations
omitted).
Insofar as plaintiff brings an action against Wagner “in
his official capacity, the suit is barred by the Eleventh
Amendment.” Id. (citing Pacherille, 30 F. Supp. 3d at 163 n.5)
(“The Eleventh Amendment shields judges from suit to the
extent that they are sued in their official capacities.”); see also
Trello v. McKeighan, 624 F. Supp. 3d 150, 155-56 (N.D.N.Y.
2022). “The doctrine of judicial immunity shields judges from
suit to the extent they are sued in their individual capacities.”
Id. (quoting Kellogg v. Nichols, 703 F. Supp. 3d 367, 372
(N.D.N.Y. 2023)) (citing Trello v. McKeighan, 624 F. Supp.
3d 150, 155 (N.D.N.Y. 2022)).
Therefore, it is recommended that the claims against Wagner
“in both his individual and official capacities are barred
by judicial and sovereign immunity.” Gerken, 2024 WL
4608307, at *10. “The undersigned further recommends
dismissing the claims against [Wagner] without prejudice for
lack of subject matter jurisdiction and without opportunity to
amend.” Id. (citing Miller v. Cnty. of Nassau, 467 F. Supp. 2d
308, 312 (E.D.N.Y. 2006) (explaining that a dismissal “based
on a finding of judicial immunity” is for lack of subject matter
jurisdiction)); see also Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 72-73 (1996) (holding that claims barred by
the Eleventh Amendment are properly dismissed for lack of
subject matter jurisdiction).
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6. 42 U.S.C. § 1983
a. State Action
Plaintiff's complaint lists “Child Attorney – Rebecca
Bauscher” (“Bauscher”) as someone he wanted to sue for
violating his constitutional rights. Dkt. No. 1-1 at 9. However,
“[t]o state a claim under § 1983, a plaintiff must allege
the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color
of state law.” Gerken, 2024 WL 4608307, at *11 (quoting
West v. Atkins, 487 U.S. 42, 48 (1988)). “The traditional
definition of acting under color of state law requires that
the defendant ... exercise[ ] power possessed by virtue of
state law and made possible only because the wrongdoer
is clothed with the authority of state law.” Id. (quoting
West, 487 U.S. at 49) (internal quotation marks and citation
omitted). “Because the United States Constitution regulates
only the Government, not private parties, [with respect to
a claim brought under § 1983,] a litigant claiming that his
constitutional rights have been violated must first establish
that the challenged conduct constitutes state action.” Id.
(quoting Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178,
186 (2d Cir. 2005) (internal quotations omitted)) (quoting
United States v. Int'l Brotherhood of Teamsters, 941 F.2d
1292, 1295 (2d Cir. 1991)); see Baum v. N. Dutchess Hosp.,
764 F. Supp. 2d 410, 419 (N.D.N.Y. 2011) (“State action is
an essential element of any § 1983 claim.”) (citing Lugar
v. Edmondson Oil Co., Inc., 457 U.S. 922, 934 (1982)
(explaining that the “under color of any statute” language is to
enforce the provisions of the Fourteenth Amendment and that
if a defendant's conduct satisfies the state-action requirement
then that conduct is also action under color of state law under
§ 1983), and Rounseville v. Zahl, 13 F.3d 625, 627-28 (2d Cir.
1994) (noting the state action requirement for § 1983)).
*14 “Private parties generally are not state actors and
therefore are not usually liable under [§] 1983.” Gerken, 2024
WL 4608307, at *11 (quoting Yi Sun v. Saslovsky, No. 1:19-
CV-10858 (LTS), 2020 WL 6828666, at *7 (S.D.N.Y. Aug.
6, 2020)) (citing Sykes v. Bank of America, 723 F.3d 399, 406
(2d Cir. 2013)); see Basile v. Connolly, 538 F. App'x 5, 7 (2d
Cir. 2013) (summary order) (“[P]rivate individuals ... cannot
be sued under 42 U.S.C. § 1983 absent a plausible allegation
that they acted under color of state law.”). “A private party's
actions can be considered state action in three situations”:
(1) the private party acts using
the coercive power of the state
or is controlled by the state (the
“compulsion test”); (2) the private
party willfully participates in joint
activity with the state or its functions
are entwined with state policies (the
“joint action” or “close nexus” test);
or (3) the state has delegated a public
function to the private party (the
“public function” test).
Id. (quoting Rogers v. City of New Rochelle, No. 1:19-
CV-0479 (CM), 2019 WL 5538031, at *2 (S.D.N.Y. Oct. 25,
2019)) (citing Fabrikant v. French, 691 F.3d 193, 207 (2d Cir.
2012)). “The fundamental question under each test is whether
the private party's challenged actions are ‘fairly attributable’
to the State.” Id. (quoting Rogers, 2019 WL 5538031, at
*2) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838
(1982)). “[A] State normally can be held responsible for a
private decision ... when it has ... provided such significant
encouragement, either overt or covert, that the choice must in
law be deemed to be that of the State.” Id. (quoting Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982) (citations omitted)). The
State's “[m]ere approval of or acquiescence in the initiatives
of a private party[, however,] is not sufficient to justify
holding the State responsible for those initiatives ....” Id.
(quoting Blum, 457 U.S. at 1004-05).
Here, it appears that Bauscher is the attorney for plaintiff's
child. Plaintiff's complaint does not directly or implicitly
raise any claims against Bauscher. See generally Dkt. No. 1.
Further, the complaint is devoid of any factual allegations
concerning Bauscher. See id. The only mentions of Bauscher
in the complaint are that she is named on the list of people
plaintiff wanted to sue, and that plaintiff allegedly told
Bauscher that he is “in his [son's] life and [he] takes good care
of him and [they] talk every day and that [he] give [sic] him
money.” Dkt. No. 1-1 at 1, 9. The undersigned concludes that,
as to Bauscher, plaintiff's complaint “in its current form fails
to state a claim for relief and fails to state the Court's subject
matter jurisdiction. As such, dismissal would be appropriate
pursuant to 28 U.S.C. §§ 1915(e) and 1915A.” Ajamia, 2014
WL 6078425, at *7.
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“The Second Circuit has held that attorneys for the child
are not state actors for purposes of suits filed pursuant to §
1983.” Gerken, 2024 WL 4608307, at *12 (quoting Milan
v. Wetheimer, 808 F.3d 961, 964 (2d Cir. 2015) (internal
quotations omitted)); see also Parent v. New York, 786 F.
Supp. 2d 516, 538 (N.D.N.Y. 2011), aff'd, 485 F. Appx.
500 (2d Cir. 2012) (“[A]lthough appointed by the state, an
attorney for the children or law guardian is not a state actor
because he or she must exercise independent professional
judgment on behalf of the clients they represent”). Thus, it
is recommended that plaintiff not be afforded an opportunity
to amend as against Bauscher as any such amendment would
be futile. See Hartley v. United Student Rentals, No. 1:24-
CV-925 (AMN/CFH), 2025 WL 26769, at *5 (N.D.N.Y.
Jan. 3, 2025), report and recommendation adopted, No.
1:24-CV-925 (ECC/PJE), 2025 WL 438195 (N.D.N.Y. Feb.
7, 2025). Accordingly, the undersigned recommends that
plaintiff's Section 1983 claim against Bauscher be dismissed.
“Importantly, as the undersigned concluded above, plaintiff's
complained of conduct surrounding and relating to the
implementation of the child support order ... cannot serve as
a basis for a section 1983 claim for the many reasons stated
supra, it is recommended that plaintiff not be provided an
opportunity to amend.” Gerken, 2024 WL 4608307, at *12. 19
7. Federal Consumer Credit Protection Act
*15 The Federal Consumer Credit Protection Act
(“FCCPA”) sets forth the “maximum part of the aggregate
disposable earnings of an individual for any workweek which
is subjected to garnishment,” 15 U.S.C. § 1673 (a), and
prescribes that “[n]o court of the United States or any State,
and no State (or officer or agency thereof), may make,
execute, or enforce any order or process in violation of this
section.” 15 U.S.C. § 1673 (c). The provisions of this statute
are enforced through the “Secretary of Labor, acting through
the Wage and Hour Division of the Department of Labor.” 15
U.S.C. § 1676.
Plaintiff alleges that the child support order entered against
him is a “excessive wage garnishment” in violation of the
FCCPA. Dkt. No. 1-1 at 2-3. However, plaintiff “cannot
pursue his claims under the [FCCPA] because there is no
private right of action under these statutes.” Corrado v. New
York Off. of Temp., No. 15-CV-7316 (SJF)(AYS), 2016 WL
3181128, at *6 (E.D.N.Y. June 2, 2016) (citing Jordan v.
Chase Manhattan Bank, 91 F. Supp. 3d 491, 501 (S.D.N.Y.
Mar. 6, 2015)) (holding that no private right of action under 15
U.S.C. § 1673, noting that the section is enforced exclusively
by the Secretary of Labor) (citing Long Island Trust Co.
v. U.S. Postal Serv., 647 F.2d 336, 341 (2d Cir. 1981));
see also Bush v. Frazier, No. 2:18-CV-00732 (SGC), 2019
WL 3305145, at *9 (N.D. Ala. July 23, 2019) (“Courts
have held no express or implied private right of action
exists under the garnishment provisions of the Consumer
Credit Protection Act, which are enforced by the Secretary
of Labor.”) (citations omitted); Colbert v. Roling, 233 F.
App'x 587, 590 (8th Cir. 2007) (“[I]t follows that there
is no private right of action under § 1673 as well. The
district court properly dismissed Colbert's action for the
alleged violation of § 1673.”). Therefore, the undersigned
alternatively recommends dismissal of this claim to due the
lack of a private right of action under the FCCPA, and in
turn, dismissal for lack of subject matter jurisdiction without
opportunity to amend.
III. Leave to Amend
Generally, “[a] pro se complaint should not be dismissed
without the Court granting leave to amend at least once when
a liberal reading of the complaint gives any indication that
a valid claim might be stated.” Gerken, 2024 WL 4608307,
at *15 (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014) (citation omitted)). “However, if the problems with
a complaint are ‘substantive’ rather than the result of an
‘inadequately or inartfully pleaded’ complaint, an opportunity
to re-plead would be ‘futile’ and ‘should be denied.’ ” Id.
(citing Edwards v. Penix, 388 F. Supp. 3d 135, 144-45
(N.D.N.Y. 2019)) (quoting Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000)).
Here, the Rooker-Feldman doctrine, Younger abstention
doctrine, Domestic Relations abstention doctrine, and Section
1673 issues cannot be cured by a better pleading. The
claims against the Schenectady County Child Support
Collection Unit, the Division of Child Support Enforcement
Newport News District Office, and the Schenectady County
Family Court are barred by sovereign immunity. The claim
against Reilly is barred by sovereign immunity and absolute
immunity. Additionally, the claim against Wagner is barred
by judicial immunity, and the claim against Bauscher must
be dismissed because she is not a state actor for the purposes
of Section 1983. Accordingly, it is recommended that the
complaint be dismissed in its entirety without prejudice and
without opportunity to amend.
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IV. Conclusion
*16 WHEREFORE, for the reasons set forth herein, it is
hereby
ORDERED, that plaintiff's application for leave to proceed
in forma pauperis (Dkt. No. 2) is GRANTED; and it is further
ORDERED, that the Clerk amend the caption to: (1)
correct the spelling of the names of defendants Schenectady
County Child Support Unit and Division of Child Support
Enforcement Newport News District Office; and (2) add as
defendants the Schenectady County Family Court; Bruce J.
Wagner, Support Magistrate; Dylan Reilly, Deputy County
Attorney; and Rebecca Bauscher, child attorney; and it is
RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be
DISMISSED in its entirety without prejudice and without
opportunity to amend for lack of subject matter jurisdiction,
and it is
ORDERED, that the Clerk serve a copy of this Report-
Recommendation and Order in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has 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 (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d
85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and
Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C.
§ 636(b)(1); FED. R. CIV. P. 6(a), 72. 20
All Citations
Slip Copy, 2025 WL 895035
Footnotes
1 This matter was referred to the undersigned for Report-Recommendation pursuant to 28 U.S.C. § 636(b)
and N.D.N.Y. L.R. 72.3(c).
2 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and costs
he may incur in this action, including, but not limited to, copying fees, transcript fees, and witness fees.
3 These requirements apply equally to non-prisoner pro se litigants. See N.D.N.Y. L.R. 72.3(d) (“Unless the
Court orders otherwise, any civil action that a non-prisoner pro se litigant commences shall be referred to a
Magistrate Judge for the purpose of review under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A when an
application to proceed in forma pauperis is filed.”).
4 Hereinafter, “Fed. R. Civ. P.”
5 All unpublished decisions cited in this Report-Recommendation and Order, unless otherwise noted, have
been provided to plaintiff. The Court does not, however, provide a copy of plaintiff's 2022 decision before this
Court as he would have been provided copies as part of that litigation. See 9 n.10, infra.
6 Plaintiff submitted various documents as exhibits or attachments to his complaint. See Dkt. Nos. 1-1, 1-2,
1-3, 1-4, 1-5, 1-6, 1-7, 1-8, 1-9, 1-10, 1-11, 1-12, 1-13, 1-14. These exhibits have also been reviewed in
connection with the initial review of plaintiff's complaint. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)
(“A complaint is deemed to include any written instrument attached to it as an exhibit, materials incorporated
in it by reference, and documents that, although not incorporated by reference, are integral to the complaint.”)
(internal quotation marks and citations omitted).
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7 Plaintiff also cites, without explanation or support, to other laws and statutes within his complaint, including
Fed. R. Civ. Pro. 4, 60(b)(4), 73, and 5(b)(2)(c); 22 NYCRR § 205.32; 42 U.S.C. §§ 1301(A) 37, (A)(1) and
659(a); 18 U.S.C. §§ 1589, 1001; 26 U.S.C. § 7434; U.S. Const. art. VI, cl. 2; however, it is unclear plaintiff's
reasoning for citing them or how such laws support a claim for relief. See Dkt. No. 1-1 at 3, 5, 7-9; Dkt. No.
1-2 at 1; Dkt. No. 3 at 1, 5; Dkt. No. 4 at 3-4; Dkt. No. 5 at 1; Dkt. No. 7 at 1-2; Dkt. No. 8 at 1-2. Thus, he
fails to set for any viable claims on these grounds.
8 Plaintiff's complaint identifies these entities as “Schenectady Child Support Unite [sic]” and “Div. of Child
Support Enforement [sic] New Port [sic] News District Office.” Dkt. No. 1 at 2.
9 Rule 10(a) of the Federal Rules of Civil Procedure provides that “the title of the complaint must name all the
parties.” FED. R. CIV. P. 10(a). Thus, by not including these defendants in the caption but expressing in his
attachments to his complaint that he wishes to proceed against these individuals, plaintiff is in violation of
Rule 10(a). Affording plaintiff due solicitude, it is clear he seeks to proceed against the Schenectady County
Family Court; Bruce J. Wagner, Support Magistrate; Dylan Reilley, Deputy County Attorney; and Rebecca
Bauscher, child attorney, based on the list of “[p]eople [plaintiff] want to sue in law suit [sic],” Dkt. No. 1-1 at
9, and the names highlighted and starred in the exhibits attached to his complaint. See Dkt. No. 1-3. Thus,
on balance, the undersigned will review such claims.
10 Plaintiff commenced an essentially identical action against defendants Wagner, Reilly, and Bauscher on
August 10, 2022. See Phillips v. Wagner, et al., 1:22-CV-833 (DNH/ML), report and recommendation adopted,
2022 WL 17403441 (N.D.N.Y. Dec. 2, 2022), appeal dismissed, No. 23-68, 2023 WL 4445323 (2d Cir. Apr.
25, 2023) (In this action, plaintiff inverted Reilly Dylan's first and last names and spelled Dylan differently,
but contextually, it is clear it is the same person). Following initial review, that case was dismissed without
prejudice but without opportunity to amend due to lack of subject matter jurisdiction, and judgment was
entered in favor of defendants. See Phillips v. Wagner, et al., 1:22-CV-833 (DNH/ML) at Dkt. No. 9. A plaintiff
cannot commence a new action seeking to review the same issues that this Court already decided against
him. Thus, collateral estoppel may be another alternative basis upon which this Court may dismiss this
complaint. See Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (“[C]ollateral estoppel applies when: (1)
the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and
actually decided, (3) there was a full and fair opportunity for litigation in the prior proceeding, and (4) the issues
previously litigated were necessary to support a valid and final judgment on the merits.”) (internal quotation
marks and citations omitted); See, e.g., Rosenberg v. Shemiran Co., LLC, No. 20-CV2259 (LLS), 2020 WL
1953627, at *3 (S.D.N.Y. Apr. 22, 2020) (“Generally, “dismissals for lack of subject matter jurisdiction are not
on the merits and are not accorded [preclusive] effect.”) Thompson v. Cnty. of Franklin, 15 F.3d 245, 253
(2d Cir. 1994) (citation omitted); see St. Pierre v. Dyer, 208 F.3d 394, 400 (2d Cir. 2000) (same). But the
doctrine of issue preclusion bars relitigation of the specific issues that the prior court decided in reaching its
jurisdictional determination. See Stengel v. Black, 486 F. App'x 181, 183 (2d Cir. 2012) (“Although a dismissal
for lack of jurisdiction is not an adjudication of the merits of a claim, such a dismissal precludes re-litigation
of the issue it decided.”) (internal citation omitted); St. Pierre, 208 F.3d at 401 (prior dismissal for lack of
standing – a jurisdictional issue – did not bar subsequent claim but did bar relitigation of specific finding
that plaintiff was not loss payee on insurance policy). Because jurisdictional determinations have preclusive
effect, “[a] party that has had an opportunity to litigate the question of subject-matter jurisdiction may not ...
reopen that question in a collateral attack upon an adverse judgment.” Ins. Corp. of Ir., Ltd. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982). A prior dismissal based on lack of subject matter
jurisdiction precludes the same action based on the same facts unless the “jurisdictional defect has been
cured or loses its controlling force.” In re Motors Liquidation Co., ECF 1:16-CV-6927, 17, 2017 WL 3491970,
at *7 (S.D.N.Y. Aug. 14, 2017) (quoting Park Lake Res. Ltd. Liab. Co. v. USDA, 378 F.3d 1132, 1137 (10th
Cir. 2004) (internal quotation marks omitted)).”. However, in connection with the current action, plaintiff has
provided this Court with only portions of orders and filings relating to his child support obligations. He submits
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the signature page from what appears to be an order related to the collection of child support dated May 22,
2024; an order dated July 14, 2022; page three of what appears to be plaintiff's motion to dismiss in family
Court relating to his failure to file proof of service on the petitioner in the family court action and the Support
Collection Unit; a letter dated August 2, 2023, from the county attorney to Magistrate Wagner providing a
proposed order of support which the county attorney asks Magistrate Wagner to adopt (order is not attached);
and a signature page of an order from Support Magistrate Wagner dated August 7, 2023. See Dkt. No. 1-3
at 1. Although it is clear that plaintiff seeks review of orders relating to child support obligations and the
garnishment of wages, and appears to challenge them on the same grounds, the undersigned does not have
sufficient information to determine the procedural posture of the orders of which plaintiff seeks review in this
action to be able to compare them those in the 2022 case. The undersigned determines that it his highly likely
that collateral estoppel bars this action as the issues of which he seeks review appear identical, but without
the full orders before the Court, the undersigned is of the opinion that it cannot be determined with certainty
whether collateral estoppel applies to the issues plaintiff raises in this action. Regardless, as this matter is
subject to dismissal on the many alternative grounds addressed herein, the lack of certainty on this ground
does not impact the undersigned's analysis or recommendation.
11 Plaintiff refers to the underlying court as a county court. See Dkt. No. 1 at 4. The logic applies the same
whether the Court is deemed a family court or a county court.
12 “While Kugler spoke in the context of criminal prosecutions, the same standard applies in the civil context.”
Diamond “D” Const. Corp., 282 F.3d at 201 (citing Moore v. Sims, 442 U.S. 415, 433 (1979)).
13 N.Y. C.P.L.R. 7803 provides that:
The only questions that may be raised in a proceeding under this article are:
1. whether the body or officer failed to perform a duty enjoined upon it by law; or
2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of
jurisdiction; or
3. whether a determination was made in violation of lawful procedure, was affected by an error of law or
was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or
mode of penalty or discipline imposed; or
4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant
to direction by law is, on the entire record, supported by substantial evidence.
N.Y. C.P.L.R. 7803.
14 “An Article 78 petition is the proper vehicle for challenging state actions taken in violation of the Federal
Constitution.” Rhee-Karn, 2014 WL 4494126, at *5 (citations omitted).
15 “A dismissal for lack of subject matter jurisdiction must be without prejudice, because without jurisdiction, the
district court lacks the power to adjudicate the merits of the case.” McKie v. Kornegay, No. 21-1943, 2022
WL 4241355, at *2 (2d Cir. Sept. 15, 2022) (summary order) (internal quotations omitted) (quoting Carter v.
HealthPort Techs., LLC, 822 F.3d 47, 54-55 (2d Cir. 2016)).
16 VIRGINIA DEPARTMENT OF SOCIAL SERVICES, https://www.dss.virginia.gov/family/dcseoffices.cgi?
LimitID=228 [Last visited on Mar. 14, 2025].
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17 The Second Circuit has ruled that “the New York State Unified Court System is unquestionably an arm of
the State, and is entitled to Eleventh Amendment sovereign immunity.” Gollomp v. Spitzer, 568 F.3d 355,
366 (2d Cir. 2009).
18 A support magistrate is similar to a judge and has the power to make decisions about child support ....” NEW
YORK STATE UNIFIED COURT SYSTEM, “Child Support Basic” https://www.nycourts.gov/LegacyPDFS/
courts/5jd/family/Child-Support-Basics-5th-Judicial-District.pdf [Last visited on Mar. 14, 2025].
19 In addition to the defendants discussed above that plaintiff explicitly named in his list of parties that he wanted
to sue, plaintiff also starred and highlighted the name of Jason A. Sidoti, Chief Clerk (“Sidoti”). See Dkt. No.
1-3 at 6. However, plaintiff does not include Sidoti in the list of individuals he wanted to sue, include him in
the parties section of the complaint or caption, or set for any facts or claims against him anywhere in the
complaint or attachments thereto. The only mention of Sidoti in the complaint is the copy of the proposed
order where his name is highlighted and starred. See Dkt. No. 1-3 at 6. The highlight and stars alone are
not enough to name Sidoti as a defendant or raise a claim for relief. The undersigned concludes that, as
to Sidoti, plaintiff's complaint “in its current form fails to state a claim for relief and fails to state the Court's
subject matter jurisdiction” Ajamia, 2014 WL 6078425, at *7; see 28 U.S.C. §§ 1915(e) and 1915A. However,
even if plaintiff had properly named Sidoti as a defendant and raised facts and claims against him, any claims
would be dismissed under the doctrine of quasi-judicial immunity. See Gerken, 2024 WL 4608307, at *10
(“Judicial immunity has been extended to court clerks and others who perform functions closely associated
with the judicial process when they are performing discretionary acts of a judicial nature which are essential
to the judicial process, especially the filing of court documents and managing a court's calendar.”) (internal
quotations and citations omitted); McKnight v. Middleton, 699 F. Supp. 2d 507, 526 (E.D.N.Y. 2010), aff'd, 434
F. App'x 32 (2d Cir. 2011) (summary order) (“Clerk's Office activities of filing and docketing legal documents
are an integral part of the judicial process and are, thus, entitled to absolute immunity.”) (internal quotations
omitted).
20 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3)
additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days
from the date the Report-Recommendation and Order was mailed to you to serve and file objections. See
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.
Id. § 6(a)(1)(c).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Phillips v. Schenectady County Child Support Unit, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1191320
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Julius PHILLIPS, Plaintiff,
v.
SCHENECTADY COUNTY CHILD SUPPORT
UNIT, Division of Child Support Enforcement
Newport News District Office, Schenectady
County Family Court, Bruce J. Wagner, Dylan
Reilly and Rebecca Bauscher, Defendants.
1:24-cv-853 (BKS/PJE)
|
Signed April 24, 2025
Attorneys and Law Firms
Plaintiff pro se: Julius Phillips, Schenectady, NY 12307.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
*1 On July 5, 2024, Plaintiff pro se Julius Phillips filed
this action under 42 U.S.C. § 1983, alleging that family
court child support orders violated his Fourth, Fifth, Seventh,
and Fourteenth Amendment rights. (Dkt. No. 1). Plaintiff
sought leave to proceed in forma pauperis. (Dkt. No. 2).
This action was referred to United States Magistrate Paul
J. Evangelist who, on March 24, 2025, granted Plaintiff's
motion to proceed in forma pauperis, and recommended
dismissal without prejudice and without opportunity to amend
for lack of subject matter jurisdiction. (Dkt. No. 4). Magistrate
Judge Evangelista advised Plaintiff that under 28 U.S.C. §
636(b)(1), he had “fourteen (14) days within which to file
written objections to the foregoing report” and that “failure
to object ... within fourteen days will preclude appellate
review.” (Id. at 38). Plaintiff did not file any objections.
As no objections to the Report-Recommendation have been
filed, and the time for filing objections has expired, the
Court reviews the Report-Recommendation for clear error.
See Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y.
2012); Fed. R. Civ. P. 72(b) advisory committee's note to 1983
amendment. Having reviewed the Report-Recommendation
for clear error and found none, the Court adopts the Report-
Recommendation in its entirety.
For these reasons, it is hereby
ORDERED that Magistrate Judge Evangelista's Report-
Recommendation (Dkt. No. 4) is ADOPTED; and it is further
ORDERED that plaintiff's complaint (Dkt. No. 1) is
DISMISSED in its entirety without prejudice and without
opportunity to amend for lack of subject matter jurisdiction;
and it is further
ORDERED that the Clerk is directed to close this case and
serve this Memorandum-Decision and Order on Plaintiff in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1191320
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Quirk v. DiFiore, 582 F.Supp.3d 109 (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
582 F.Supp.3d 109
United States District Court, S.D. New York.
Dennis W. QUIRK, as president of and on behalf of the
New York State Court Officers Association, Plaintiff,
v.
Honorable Janet DIFIORE, Chief Judge of
the State of New York, et al., Defendants.
20-CV-5027 (JPO)
|
Signed 01/28/2022
Synopsis
Background: President of labor union representing court
officers in state of New York, individually and on behalf
of union, brought action against New York Office of Court
Administration (OCA) and Chief Judge of the state of New
York in her individual capacity and official capacity as
head of the OCA, alleging that OCA failed to implement
protocols to adequately address health and safety concerns
relating to COVID-19 pandemic and asserting § 1983 claims
for conspiracy and First Amendment retaliation, claims for
violations of Occupational Safety and Health Act (OSHA)
and New York's whistleblower statute, and claim of public
nuisance. Defendants moved to dismiss for lack of subject
matter jurisdiction and failure to state a claim.
Holdings: The District Court, J. Paul Oetken, J., held that:
[1] OCA did not waive its Eleventh Amendment immunity by
its participation in litigation;
[2] Eleventh Amendment barred claims seeking monetary
damages against Chief Judge in her official capacity;
[3] court officer failed to allege personal involvement by
Chief Judge and thus failed to state § 1983 claim against
Chief Judge in her individual capacity for First Amendment
retaliation;
[4] court officer failed to adequately allege agreement
between state actor and private party and thus failed to state
claim for § 1983 conspiracy;
[5] intracorporate conspiracy doctrine barred § 1983
conspiracy claim;
[6] Chief Judge was not an employer subject to OSHA with
regard to state court officers; and
[7] court would decline to exercise supplemental jurisdiction
over state-law claims.
Motion granted.
Procedural Posture(s): Motion to Dismiss for Failure to
State a Claim; Motion to Dismiss for Lack of Subject Matter
Jurisdiction; Motion to Amend the Complaint.
West Headnotes (15)
[1] Federal Courts Dismissal or other
disposition
A claim must be dismissed for lack of subject-
matter jurisdiction when the district court
lacks the statutory or constitutional power to
adjudicate it. Fed. R. Civ. P. 12(b)(1).
[2] Federal Courts Weight and sufficiency
A plaintiff has the burden of showing by a
preponderance of the evidence that subject-
matter jurisdiction exists. Fed. R. Civ. P. 12(b)
(1).
[3] Federal Courts Pleadings and motions
Federal Courts Evidence; Affidavits
In a motion to dismiss, the defendant may
challenge either the legal or factual sufficiency
of the plaintiff's assertion of subject-matter
jurisdiction, or both. Fed. R. Civ. P. 12(b)(1).
[4] Federal Courts Judges and court
personnel
New York Office of Court Administration
(OCA), an administrative arm of the state of New
York, did not waive its Eleventh Amendment
immunity by its participation in litigation in
court officer's action alleging that OCA failed
to implement protocols to adequately address
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Quirk v. DiFiore, 582 F.Supp.3d 109 (2022)
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health and safety concerns relating to COVID-19
pandemic and asserting § 1983 claims for
conspiracy and First Amendment retaliation,
claim for violations of Occupational Safety and
Health Act, and state-law claims, where OCA
had only defended itself against court officer's
claims. U.S. Const. Amends. 1, 11; Occupational
Safety and Health Act of 1970, § 2 et seq., 29
U.S.C.A. § 651 et seq.; 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[5] Federal Courts Timeliness issues
A federal court's subject-matter jurisdiction may
be raised by a party or by the court at any stage
of the litigation. Fed. R. Civ. P. 12(b)(1).
[6] Federal Courts Judges and court
personnel
Eleventh Amendment barred state court officer's
claims seeking monetary damages against Chief
Judge of state of New York in her official
capacity in action asserting § 1983 claims for
conspiracy and First Amendment retaliation and
claims for violations of Occupational Safety
and Health Act. U.S. Const. Amend. 11;
Occupational Safety and Health Act of 1970, § 2
et seq., 29 U.S.C.A. § 651 et seq.; 42 U.S.C.A.
§ 1983.
1 Case that cites this headnote
More cases on this issue
[7] Civil Rights Employment practices
State court officer failed to allege personal
involvement by Chief Judge of state of New
York and thus failed to state § 1983 claim
against Chief Judge in her individual capacity
for retaliation concerning First Amendment
rights to free speech and free association
after he repeatedly objected about insufficiency
of COVID-19 prevention policies of Office
of Court Administration (OCA); court officer
merely alleged that he sent letter to Chief
Judge complaining about the severe shortage of
personal protective equipment, did not allege
that Chief Judge actually read letter, and did
not allege that Chief Judge personally retaliated
against officer. U.S. Const. Amend. 1; 42
U.S.C.A. § 1983.
[8] Civil Rights Liability of Public Employees
and Officials
Civil Rights Complaint in general
Pleading supervisory liability is insufficient to
recover damages under § 1983 for alleged
constitutional deprivations; instead, a plaintiff
must plead and prove that each government-
official defendant, through the official's own
individual actions, has violated the Constitution.
42 U.S.C.A. § 1983.
3 Cases that cite this headnote
[9] Conspiracy Civil rights conspiracies
State court officer failed to allege agreement
between state actor and private party and thus
failed to state § 1983 claim for conspiracy against
New York Office of Court Administration
(OCA) and Chief Judge of state of New York, in
her individual capacity as head of OCA; named
defendants were all state actors, and court officer
did not allege involvement of any private parties
in alleged conspiracy. 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[10] Conspiracy Civil rights conspiracies
Intracorporate conspiracy doctrine barred state
court officer's § 1983 conspiracy claim against
New York Office of Court Administration
(OCA) and Chief Judge of state of New
York, in her individual capacity as head of
OCA, regarding alleged deprivation of his First
Amendment rights to free speech and free
association. U.S. Const. Amend. 1; 42 U.S.C.A.
§ 1983.
1 Case that cites this headnote
More cases on this issue
[11] Conspiracy Definition and Elements in
General
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To state claim for § 1983 conspiracy, plaintiff
must allege (1) agreement between state actor
and private party, (2) to act in concert to inflict
unconstitutional injury, and (3) overt act done
in furtherance of that goal causing damages. 42
U.S.C.A. § 1983.
[12] Conspiracy Intracorporate conspiracy
doctrine in general
Under “intracorporate conspiracy doctrine,”
officers and employees of a single corporate
entity are legally incapable of conspiring
together.
1 Case that cites this headnote
[13] Labor and Employment Right of action
Occupational Safety and Health Act does not
provide employee a private right of action
against employer. Occupational Safety and
Health Act of 1970 § 2 et seq., 29 U.S.C.A. § 651
et seq.
3 Cases that cite this headnote
[14] Labor and Employment Employers and
Industries Regulated in General
Chief Judge of state of New York, who was head
of New York Office of Court Administration
(OCA), was not an “employer” subject to
Occupational Safety and Health Act with regard
to state court officers. Occupational Safety and
Health Act of 1970 § 3, 29 U.S.C.A. § 652(5).
1 Case that cites this headnote
[15] Federal Courts Effect of dismissal or
other elimination of federal claims
District court would decline to exercise
supplemental jurisdiction over court officer's
state-law claims against New York Office of
Court Administration (OCA) and its head, where
none of officer's § 1983 and Occupational
Safety and Health Act claims survived motion to
dismiss. Occupational Safety and Health Act of
1970, § 2 et seq., 29 U.S.C.A. § 651 et seq.; 42
U.S.C.A. § 1983.
More cases on this issue
Attorneys and Law Firms
*111 Thomas Martin Gambino, Law Office of Thomas M.
Gambino & Associates PC, Poughkeepsie, NY, Pat Bonanno,
Pat Bonanno & Associates, P.C., White Plains, NY, for
Plaintiff.
James Martin Thompson, New York State Office of the
Attorney General, New York, NY, for Defendant Honorable
Janet DiFiore.
Lisa M. Evans, NY State Office of Court Administration,
New York, NY, for Defendant New York State Office of Court
Administration.
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
Plaintiff Dennis Quirk, president of the New York State
Court Officers Association (“NYSCOA”), brings this action
individually and on behalf of the NYSCOA, alleging
deprivation of his First and Fourteenth Amendment rights to
free speech and free association, conspiracy to deprive him
of his constitutional rights under 42 U.S.C. § 1983, violations
of the Occupational Safety and Health Act (“OSHA”),
“imminent and substantial endangerment,” and violations of
New York's whistleblower statute and common law of public
nuisance. These claims all stem from the alleged failure
of Defendant Office of Court Administration (“OCA”) to
implement protocols within New York state courthouses to
adequately address health and safety concerns relating to
COVID-19. Quirk claims that Defendants retaliated against
him for his speech advocating improved COVID-19 protocols
with threats of disciplinary measures and termination.
Defendant Chief Judge DiFiore and Defendant OCA move to
dismiss the complaint for failure to state a claim upon which
relief can be granted and lack of subject matter jurisdiction,
respectively. For the reasons that follow, both motions are
granted.
I. Background
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The following facts are drawn from the complaint and
assumed true for the purposes of this motion. (See Dkt. No.
2 (“Compl.”).)
Quirk is a New York State court officer and the president
of the NYSCOA, a labor *112 union representing
approximately 1,500 court officers throughout the state.
(Compl. ¶¶ 3–4.) The Honorable Janet DiFiore is the Chief
Judge of the State of New York and the head of the OCA.
The OCA, which is the executive branch of the state court
system, is responsible for promulgating rules that protect the
state judiciary and its employees, including creating policies
to address safety measures related to the spread of COVID-19.
(Compl. ¶ 7.) Defendants “John Does 1–5” are individuals
who worked under the direction of Chief Judge DiFiore
during the incidents described in Quirk's complaint. (Id.)
Since the start of the COVID-19 pandemic, Quirk has
“consistently and vigorously objected to the lack of PPE
[(personal protective equipment)] and properly sterilized
work areas for UNION members.” (Compl. ¶ 17.) Because
of Defendants’ failure to provide PPE to NYSCOA members
and properly sterilize work areas within state courthouses,
court officers allegedly have been, and continue to be,
exposed to COVID-19. (Compl. ¶ 18.) On information and
belief, Quirk submits that at least three members of the
NYSCOA passed away after contracting COVID-19. (Compl.
¶ 18 n.1.) Quirk wrote a letter to Chief Judge DiFiore about
his concerns with the OCA's COVID-19 protocols on March
12, 2020. (Compl. ¶ 24.) Additionally, before the start of the
pandemic, Quirk submitted requests pursuant to the New York
Freedom of Information Law (“FOIL”), seeking production
of documents regarding the OCA's budget. Defendants have
never responded to Quirk's FOIL requests. (Compl. ¶¶ 13, 15,
16.)
Because of Quirk's consistent objections about the OCA's
COVID-19 protocols, his letter to Chief Judge DiFiore, and
his previous FOIL requests, Defendants retaliated against
him. Quirk was “threatened with disciplinary action by
Defendants, including an interrogation, threat of suspension
and possible termination from employment.” (Compl. ¶ 22.)
Quirk filed his complaint against Defendants in July 2020,
alleging deprivation of his First and Fourteenth Amendment
rights to free speech and free association, conspiracy to
deprive him of his constitutional rights under 42 U.S.C.
§ 1983, violations of OSHA, “imminent and substantial
endangerment,” and violations of New York's whistleblower
statute and common law of public nuisance. (See Compl.)
The OCA, on its own behalf and on Chief Judge DiFiore's
behalf to the extent that she is being sued in her official
capacity, moved to dismiss the complaint under Federal Rule
of Civil Procedure 12(b)(1), arguing that this Court lacks
subject matter jurisdiction because of Eleventh Amendment
sovereign immunity. (Dkt. No. 63.) Chief Judge DiFiore, in
her individual capacity, also moved to dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(6) because she
asserts that Quirk's claims all fail as a matter of law. (Dkt. No.
65.)
II. Legal Standard
[1] [2] [3] Rule 12(b)(1) requires that a claim be dismissed
for lack of subject matter jurisdiction “when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
“A plaintiff has the burden of showing by a preponderance of
the evidence that subject matter jurisdiction exists.” Lunney v.
United States, 319 F.3d 550, 554 (2d Cir. 2003). “In a motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the defendant
may challenge either the legal or factual sufficiency of the
plaintiff's assertion of jurisdiction, or both.” Robinson v. Gov't
of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001).
To survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim, a plaintiff *113 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, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007). A claim is facially plausible when
a plaintiff pleads facts that would allow “the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009). “The Court must accept as true all
well-pleaded factual allegations in the complaint, and ‘draw
[ ] all inferences in the plaintiff's favor.’ ” Goonan v. Fed.
Rsrv. Bank of N.Y., 916 F. Supp. 2d 470, 478 (S.D.N.Y. 2013)
(alteration in original) (quoting Allaire Corp. v. Okumus, 433
F.3d 248, 249–50 (2d Cir. 2006)). 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,
129 S.Ct. 1937.
III. Claims Against OCA and Chief Judge DiFiore in her
Official Capacity
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[4] OCA asserts that the Court lacks subject matter
jurisdiction over Plaintiff's claims because the Eleventh
Amendment bars suits by private parties against a state or its
agencies in federal court. OCA further contends that neither
of the two exceptions to Eleventh Amendment immunity
— a state's unambiguous consent to a lawsuit and a valid
and unambiguous abrogation of sovereign immunity by
Congress — is present here. (See Dkt. No. 68 at 7.) Eleventh
Amendment immunity, if applicable here, would preclude all
of Quirk's claims regardless of whether the sought-after relief
is monetary or injunctive. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 101–02, 104 S.Ct. 900, 79 L.Ed.2d
67 (1984) (citing Cory v. White, 457 U.S. 85, 91, 102 S.Ct.
2325, 72 L.Ed.2d 694 (1982)).
The Court agrees with OCA that it does not have subject
matter jurisdiction over Quirk's claims against OCA. “The
Second Circuit has recognized the New York State Unified
Court System, of which OCA is the administrative arm, as
a state instrumentality protected by Eleventh Amendment
sovereign immunity.” Pietri v. N.Y.S. Off. of Ct. Admin., 936
F. Supp. 2d 120, 127 (E.D.N.Y. 2013) (citing Gollomp v.
Spitzer, 568 F.3d 355, 367–68 (2d Cir. 2009)). Quirk does
not contest that OCA is entitled to Eleventh Amendment
sovereign immunity, nor does Quirk point to any abrogation
of OCA's sovereign immunity by Congress. Quirk argues
only that OCA has waived its sovereign immunity by actively
participating in this litigation and not previously raising this
Eleventh Amendment argument.
[5] But the cases Quirk cites, Gunter v. Atlantic Coast Line
Railroad Co., 200 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed.
477 (1906), and Bergemann v. Rhode Island Department of
Environmental Management, 665 F.3d 336 (1st Cir. 2011), are
inapposite. Both of these cases stand for the proposition that
a state waives its Eleventh Amendment sovereign immunity
when it voluntarily becomes a party to a suit and submits
its rights for judicial determination. See Gunter, 200 U.S. at
284, 26 S.Ct. 252; Bergemann, 665 F.3d at 340. In contrast,
OCA has only defended itself against OCA's claims here. See
NRA of Am. v. Cuomo, 525 F. Supp. 3d 382, 407 (N.D.N.Y.
2021) (“New York has not unequivocally expressed waiver
of immunity, nor has it waived this immunity simply by
defending the claims against it. To hold otherwise would
mean a waiver of sovereign immunity occurs every time
a State appears in federal court to defend itself in *114
litigation. Such a result is not supported by either case law or
logic.”) Further, a federal court's subject matter jurisdiction
may be raised by a party or by the court at any stage of
the litigation. Arbaugh v. Y & H Corp., 546 U.S. 500, 514,
126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Because the Court
lacks subject matter jurisdiction, it refrains from addressing
the merits of Quirk's claims against the OCA.
[6] The Court also refrains from addressing the merits of
Quirk's claims against Chief Judge DiFiore in her official
capacity. The Eleventh Amendment bars Quirk's claims
seeking money damages, see Pietri, 936 F. Supp. 2d at
128, and the Court abstains from exercising jurisdiction over
Quirk's claims seeking injunctive relief against Chief Judge
DiFiore in light of O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct.
669, 38 L.Ed.2d 674 (1974), see Quirk v. DiFiore, No. 20
Civ. 5027, 2020 WL 7260533, at *3–4 (S.D.N.Y. Dec. 10,
2020) (“Given the strong state interests at stake, as well as
the intrusive nature of the requested relief, the Court finds
abstention proper under O'Shea.”).
IV. Claims Against Chief Judge DiFiore in her
Individual Capacity
Quirk's complaint does not specify whether he brings this
action against Chief Judge DiFiore in her individual capacity,
official capacity, or both. In his briefing, Quirk states that he
is suing Chief Judge DiFiore in both capacities, and Chief
Judge DiFiore has moved to dismiss the complaint in both
capacities. So, the Court now considers Quirk's claims against
Chief Judge DiFiore in her individual capacity.
A. First Amendment Retaliation
[7] Quirk alleges that Chief Judge DiFiore retaliated against
him after he repeatedly objected about the insufficiency of the
OCA's COVID-19 prevention policies. Quirk claims that he
has “been threatened with disciplinary action by Defendants,
including an interrogation, threat of suspension and possible
termination from employment” (Compl. ¶ 22), and that one
of the defendants — Quirk does not specify — “engag[ed]
in acts of intimidation upon UNION activities, particularly
the action of UNION President Quirk” (Compl. ¶ 21(d)).
Defendants’ actions, according to Quirk, deprived him of his
First Amendment rights to speech and free association. (See
Compl. ¶ 32.)
[8] As a threshold matter, this claim fails against Chief
Judge DiFiore because Quirk fails to allege her personal
involvement in the challenged conduct. See Shomo v. City
of New York, 579 F.3d 176, 184 (2d Cir. 2009) (“It is well
settled in this Circuit that personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to
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an award of damages under § 1983.” (quoting Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995))). Pleading
supervisory liability is insufficient. “Instead, a plaintiff must
plead and prove ‘that each Government-official defendant,
through the official's own individual actions, has violated
the Constitution.’ ” Tangreti v. Bachmann, 983 F.3d 609,
618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676, 129
S.Ct. 1937). Nowhere in the complaint does Quirk allege
any actions that Chief Judge DiFiore personally undertook to
retaliate against Quirk for objecting to COVID-19 policies. In
fact, besides identifying Chief Judge DiFiore and describing
her responsibilities as the head of the OCA, the complaint
mentions Chief Judge DiFiore only once: Quirk alleges that,
on March 16, 2020, he wrote to Chief Judge DiFiore about
a severe shortage of protective equipment and that court
buildings were not being properly cleaned. (Compl. ¶ 24.) Yet
Quirk does not allege that Chief Judge DiFiore read this letter,
let alone *115 that Chief Judge DiFiore took any actions
— retaliatory or otherwise — after reading it. Cf. McCrary
v. Marks, 836 F. App'x 73, 74 (2d Cir. 2021) (explaining that
where “the most [plaintiff] alleged is that [defendant] received
his letter and directed someone at the [agency] to respond to
it[, t]hat is clearly not enough to state a claim”). This claim
thus fails as a matter of law.
B. Section 1983 Conspiracy
[9] Quirk also alleges that there was a conspiracy among
Defendants to deprive him of his First Amendment rights.
The same alleged facts underlying his First Amendment
retaliation claim underlie this claim as well. (See Compl.
¶¶ 35–36 (“As part of the conspiracy, the Defendants did,
without cause or justification, among other acts, subject
Plaintiff Dennis W. Quirk to a disciplinary interrogation,
threaten him with suspension and possible termination of
employment in an effort to deny his individual right of free
speech.”).)
[10] [11] [12] Quirk's § 1983 conspiracy claim fails for
several reasons. To state a claim for a § 1983 conspiracy,
a plaintiff must allege “(1) an agreement between a state
actor and a private party; (2) to act in concert to inflict
an unconstitutional injury; and (3) an overt act done in
furtherance of that goal causing damages.” Ciambriello v.
County of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002).
The conspiracy claim falters on the first element. The
named Defendants are all state actors and Quirk does not
allege the involvement of any private parties in this alleged
conspiracy. Quirk, in his brief, asserts that the “John Does
1–5” defendants are involved in the conspiracy. (See Dkt.
No. 71 at 20.) But the complaint contains only one allegation
about the “John Does” — that they are individuals working
under the direction of Chief Judge DiFiore. (See Compl.
¶ 7.) The complaint does not state that these “John Does”
are private parties, much less that they were involved in
a conspiracy. Moreover, nothing pleaded in the complaint
plausibly suggests a meeting of the minds among the
members of this conspiracy, or that Judge DiFiore was even
a member of this conspiracy. See Ortiz v. Ledbetter, No.
19 Civ. 2493, 2020 WL 2614771, at *6 (S.D.N.Y. May 22,
2020) (“A plaintiff must allege facts that plausibly suggest a
meeting of the minds and provide some details of time and
place.”). Besides the conclusory allegation that Defendants
“conspired with one another to deprive Plaintiffs of their
constitutional rights” (Compl. ¶ 35), the complaint provides
no specifics regarding any meeting of the minds. See id.
(“The conclusory allegation that Defendants ‘agreed to act
in concert’ is insufficient to state a claim where it is not
supported by additional factual allegations describing the
alleged conspiracy.” (internal quotation marks and citation
omitted)). Lastly, since the only named defendants are Chief
Judge DiFiore and the Office of Court Administration, the
intracorporate conspiracy doctrine bars this claim. Under this
doctrine, officers and employees of a single corporate entity
are “legally incapable of conspiring together.” Hartline v.
Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008) (internal quotation
marks omitted). The Court thus dismisses this claim as well.
C. OSHA Violations
[13] [14] The last of Quirk's federal law claims are for
violations of OSHA regulations (see Compl. ¶¶ 46–51);
these claims all fail because Quirk cannot bring a lawsuit
under OSHA. 1 See Donovan v. Occupational Safety & Rev.
Comm'n, 713 F.2d 918, 926 (2d Cir. 1983) (“Under OSHA,
employees do not have a private right of *116 action.”);
see also Jacobsen v. N.Y. City Health & Hosps. Corp., No.
12 Civ. 7460, 2013 WL 4565037, at *7 (S.D.N.Y. Aug. 28,
2013) (collecting cases and noting that the “statutory scheme
[of OSHA] envisions that the public rights created by the
Act are to be protected by the Secretary [of Labor] and
that enforcement of the Act is the sole responsibility of the
Secretary”).
D. “Imminent and Substantial Endangerment”
Quirk also brings a claim for “imminent and substantial
endangerment.” (See Compl. ¶¶ 38–40.) But Quirk does
not provide a legal source for this claim in his complaint
or brief. There is thus “no meaningful basis for the Court
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to assess the sufficiency of [Quirk's] claim[ ].” Cannon v.
NYS Comm'r of Soc. Servs., No. 19 Civ. 6493, 2019 WL
3743975, at *2 (S.D.N.Y. Aug. 7, 2019) (internal quotation
marks omitted). Further, since Quirk is not a pro se party,
the Court is not obligated to infer the legal basis of this
“imminent and substantial endangerment” claim or interpret
it to raise the strongest possible legal argument. See Masciotta
v. Clarkstown Cent. Sch. Dist., No. 14 Civ. 7128, 2016
WL 4449660, at *12 n.12 (S.D.N.Y. Aug. 23, 2016) (citing
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir. 2006)). Because Quirk has not given “fair notice of
what [this] claim is and the grounds upon which it rests,”
Lombardo v. Dr. Seuss Enters., L.P., No. 16 Civ. 9974, 2017
WL 1378413, at *4 (S.D.N.Y. Apr. 7, 2017) (cleaned up), the
Court dismisses it.
E. Quirk's Remaining State-Law Claims
[15] Because none of Quirk's constitutional and other federal
claims survive, the Court declines to exercise supplemental
jurisdiction over Quirk's remaining state-law claims. See
Shi v. N.Y. Dep't of State, 393 F. Supp. 3d 329, 343
(S.D.N.Y. 2019) (“[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors ...
will point toward declining to exercise jurisdiction over
the remaining state-law claims.”) (quoting Kolari v. N.Y.-
Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)). These
claims are thus dismissed without prejudice.
V. Quirk's Motion to Amend the Complaint
Quirk cross-moves to amend his complaint in the event
that the Court dismisses this action upon the pleadings.
Quirk asserts that his complaint puts forth viable claims,
notes the early stage of the litigation, and relies on the
general proposition that courts should freely give leave to
amend under Federal Rule of Civil Procedure 15(a)(2). See
Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009). If
allowed to amend, Quirk seeks to: specify that he is suing
Chief Judge DiFiore in her official and individual capacity,
clarify his imminent and substantial harm allegations, add
a whistleblower claim, and add additional allegations to his
public nuisance claim. (See Dkt. No. 70 at 16–17, 22.)
Though courts should generally freely give leave to amend
when justice requires, this Court denies Quirk leave to amend
his complaint as futile. See Jackson v. Abernathy, 960 F.3d 94,
99 (2d Cir. 2020) (affirming denial of leave to amend where
the “proposed amended complaint would be *117 futile”).
None of his proposed amendments would overcome OCA's
and Chief Judge DiFiore's Eleventh Amendment sovereign
immunity and allow this Court to exercise subject matter
jurisdiction. And Quirk's proposed amendments provide
no additional detail about Chief Judge DiFiore's personal
involvement in any violation of law, dooming any suit against
her in her individual capacity. Further, Quirk failed to follow
the Court's Individual Rules of notifying the Court and
Defendants within ten days of receiving Defendants’ motion
to dismiss of his intent to file an amended pleading, an
additional and independent ground for denying his motion
to amend. See Individual Rule 3(D)(ii) (citing Loreley Fin.
(Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160,
190 (2d Cir. 2015)).
VI. Conclusion
For the foregoing reasons, Chief Judge DiFiore's and OCA's
motions to dismiss are GRANTED.
SO ORDERED.
All Citations
582 F.Supp.3d 109
Footnotes
1 Quirk acknowledges that he “may not be entitled to enforce OSHA violations individually” (Dkt. No. 71 at 9)
and instead asks the Court to refer the matter to OSHA. The Court declines to do so. Chief Judge DiFiore
is not an “employer” subject to OSHA. See 29 U.S.C. § 652(5); United States v. Shear, 962 F.2d 488, 492
(5th Cir. 1992) (noting that OSHA actions against individual supervisors “may not be sustained on the theory
that [the supervisor] was an employer”).
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Rich v. New York, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 992885
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Benjamin Samuel RICH, formerly
known as Samuel Guillaume, Plaintiff,
v.
State of NEW YORK, New York City; New
York City Police Department; New York County;
New York County District Attorney's Office;
Detective Michael Miller, Vincent Corrando, John
Passementi, Cyrus Vance, Jr., Shipla Kalra, David
Nasar, and Does 1–100, Inclusive., Defendants.
21 Civ. 3835 (AT)
|
Signed 03/31/2022
Attorneys and Law Firms
Benjamin Samuel Rich, Staten Island, NY, Pro Se.
Gee Won Cha, Julinda A. Dawkins, New York State Office
of the Attorney General, New York, NY, for Defendant State
of New York.
Andrew B. Spears, New York City Law Department, New
York, NY, for Defendants City New York, Michael Miller,
Vincent Corrando, John Passementi.
Patricia Jean Bailey, New York County District Attorney's
Office, New York, NY, for Defendants Cyrus Vance, Jr.,
David Nasar.
ORDER
ANALISA TORRES, District Judge:
*1 This action arises from a 2016 arrest and prosecution
of Plaintiff pro se, Benjamin Samuel Rich, in New York
County. He brings claims against the State of New York (the
“State”); former New York County District Attorney (“DA”)
Cyrus R. Vance, Jr. and two Assistant District Attorneys
(“ADAs”), Shilpa Kalra and David Nasar, (collectively, the
“DA Defendants”); and the City of New York (the “City”),
the New York City Police Department (the “NYPD”), and
NYPD officers Michael Miller, Vincent Corrando, and John
Passementi (collectively, the “City Defendants”), pursuant to,
inter alia, 42 U.S.C. §§ 1983, 1985, and 1986, the New York
State Constitution, and New York common law. See generally
Compl., ECF No. 1. Before the Court are three motions to
dismiss Plaintiff's complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, brought by
the State, ECF No. 20, the DA Defendants, ECF No. 22, and
the City Defendants, ECF No. 32.
For the reasons stated below, the State's motion to
dismiss is GRANTED, and Plaintiff's claims against the
State are DISMISSED. The DA Defendants’ motion to
dismiss is GRANTED—Plaintiff's claims against Vance
are DISMISSED; and his claims against Kalra and Nasar
are DISMISSED except for Counts 3 and 4, which are
DISMISSED without prejudice to renewal in an amended
complaint. The City Defendants’ motion to dismiss is
DENIED as to Count 4, and GRANTED in all other respects.
Plaintiff's claims against Passamenti, the NYPD, and the City
are DISMISSED; and his claims against Miller and Corrando
are DISMISSED, except for Count 3, which is DISMISSED
without prejudice to renewal in an amended complaint.
BACKGROUND 1
On January 6, 2016, Plaintiff was at the Highline Ballroom
(“the Highline”), a nightclub in Manhattan, as an invited
guest of Wasief Quahtan, a Highline employee. Compl. ¶ 24.
Quahtan and the club owner began arguing over “Quahtan[’s]
[having brought] Plaintiff to the party.” Id. ¶ 25. Security
staff, and an individual named Avery Jackson, asked Plaintiff
to leave. Id. ¶ 26. Plaintiff alleges that he was “forcibly
escorted” from the club, and that Jackson became “belligerent
and aggressive” towards him. Id. ¶ 27. Shortly thereafter, a
shooting occurred outside the Highline. Id. ¶ 28.
Plaintiff believes that Jackson “ran down the street and
jumped into a black sedan ... at the time the shots were fired.”
Id. ¶ 37. He also states that there were “numerous witnesses”
to the shooting, including a “female 911 caller,” who lived
“next door” to the Highline. Id. ¶ 36. In that 911 call, the
witness said that she had seen a “man jump into a black sedan
speeding down the street” after shots were fired. Id. Based
on this call, Plaintiff believes “it was more likely that it was
[ ] Jackson who fired the shots before jumping into the black
sedan to chase Plaintiff down.” Id. ¶ 37.
*2 The shooting was investigated by Detective Michael
Miller, who interviewed Jackson. Id. ¶¶ 29–30. Jackson told
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Miller that he saw Plaintiff go to a car, “pull out a gun, and
shoot in the direction of the Highline,” and that Jackson “ran
back into the club” when shots were fired. Id. ¶¶ 30, 37.
But, Plaintiff alleges that many of Jackson's representations
to Miller contradicted his initial statements to the NYPD
officers who first responded to the shooting, as well as
other eyewitness accounts. See, e.g., ¶¶ 30–32. For instance,
Plaintiff alleges that Jackson told the responding officers
that Plaintiff was “escorted from the club because he was
intoxicated,” and that Plaintiff then “went to his car, [a Rolls
Royce] removed a firearm ... and fired several shots.” Id. ¶¶
31, 46. But, Jackson told Miller that Plaintiff was “forcibly
ejected from the club” after an altercation with its manager,
that Plaintiff was “belligerent,” and threatened that he had a
gun. Id. ¶ 32. Plaintiff also contends that Jackson's statements
were demonstrably false, because surveillance videos showed
that Jackson “was the aggressor towards Plaintiff,” and that
Plaintiff was “calm, peaceful, and cooperative” when escorted
from the club. Id. ¶¶ 32, 41.
Plaintiff alleges that Miller failed to conduct a thorough
and complete investigation of the shooting, because he did
not interview several witnesses, including the 911 caller. Id.
¶¶ 36–37, 39. Plaintiff also suggests that Miller obtained—
but disregarded—surveillance video from the inside and the
outside of the club that would have corroborated Plaintiff's
version of events. See id. ¶¶ 40–43. Plaintiff also complains
that Officer Vincent Corrando, Miller's supervisor, “approved
all [of the] reports written” in the investigation and “should
have notice[d] or known of all the inconsistencies and
contradictory statements” in Miller's reports. Id. ¶ 95. And,
Plaintiff alleges that Officer John Passementi “authorized
DNA tests,” which revealed that the DNA evidence recovered
at the scene “did not match Plaintiff.” Id. ¶ 96.
On January 9, 2016, Miller obtained a search warrant for
Plaintiff's car, based on what Plaintiff contends were “false,
misleading and/or embellished information” in the underlying
affidavits. Id. ¶ 46. The next day, Jackson picked Plaintiff's
mugshot out of a photo lineup. Id. ¶ 92. Plaintiff appears
to argue that this lineup was unduly suggestive, because
his “mugshot had a lighter background than the other
photographs.” Id. ¶ 92. The same day, Miller obtained a
warrant for Plaintiff's arrest for attempted murder, assault,
and weapons possession, and in February obtained additional
search warrants for Plaintiff's cell phone and laptop, allegedly
based, again, on false and misleading statements provided by
Miller and Jackson. Id. ¶¶ 45, 47. According to Plaintiff, no
“physical evidence [ ] tie[d] him to any part of the shooting,”
id. ¶ 81, and the police did not recover a gun or find gunshot
residue in Plaintiff's car, id. ¶ 91.
On January 22, 2016, a grand jury indicted Plaintiff for
second-degree attempted murder, first-degree assault, and
two counts of criminal possession of a weapon. See id. ¶¶
45, 51. On January 27, 2016, Plaintiff was arrested. Id. ¶ 51.
He was incarcerated until February 18, 2016, when he was
released on bail. Id. ¶ 52.
In November 2016, Plaintiff was taken back into custody on
suspicion of witness tampering, after Jackson allegedly made
a “false[ ]” report to the DA's Office that Plaintiff had tried to
contact him. Id. ¶¶ 53, 103. Plaintiff remained in jail until his
trial, which began in June 2017. Id. ¶¶ 54, 64; see also Trial
Tr. at 1, ECF No. 22-3. 2
On March 26, 2016, ADAs Shilpa Kalra and David Nasar
provided surveillance videos from the Highline to Plaintiff's
counsel. Compl. ¶ 64. Plaintiff alleges, however, that the
relevant video showed only “one (1) camera angle [out]
of 14 camera angles.” Id. He alleges that prosecutors did
not provide videos from the thirteen additional camera
angles until a week after trial commenced, even though
these videos were collected from the Highline eighteen
months earlier. Compl. ¶ 64. The trial court accordingly
granted counsel's request to review the additional videos
before conducting Jackson's cross-examination. Trial Tr. at
3. On direct examination, Jackson testified that he did not
participate in escorting Plaintiff out of the club. Id. at 47–48.
*3 On June 12, 2017, prior to Jackson's cross-examination,
Plaintiff's counsel reported to the trial court that Jackson could
be identified in the additional videos based on his clothing. Id.
at 135. Nasar acknowledged that if Jackson was indeed visible
in the videos, he was “doing a bunch of things contrary to
what he testified about.” Id.; see also id. at 136. The trial court
then determined that Jackson should be questioned, under
oath, outside the jury's presence, about his clothing on the
night in question, and whether he could identify himself on
the videos, among other matters. See id. at 146–50, 152–54.
Jackson was brought in, and warned about perjury. See id. at
154–56. Jackson identified himself on the videos wearing a
jacket and a light-colored shirt. See id. at 156–59. The court
then adjourned the proceedings. See id. at 159. When the
court resumed, Jackson, through counsel, invoked his Fifth
Amendment right against self-incrimination, id. at 176, and
the court declared a mistrial, id. at 186–88.
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Plaintiff's counsel then moved to dismiss the indictment
against Plaintiff on two grounds: first, that it was based
on false testimony, and second, because of prosecutorial
misconduct. Compl. ¶ 100. On October 17, 2017, Kalra
consented to dismissal of the indictment on the first ground,
but opposed the assertion of prosecutorial misconduct.
Dismissal Tr. at 12–13, 15–16. The court dismissed the
indictment, but the presiding judge stated he did not “see any
prosecutorial misconduct.” Id. at 16.
On March 12, 2021, over three years after the indictment
was dismissed, Plaintiff commenced this action. Compl.
Defendants move separately to dismiss the claims against
them. ECF Nos. 20, 22, 32. The Court considers each motion
in turn.
DISCUSSION
I. Legal Standard
A. Rule 12(b)(1)
An action should be dismissed pursuant to Rule 12(b)(1)
where it is apparent that the court lacks subject matter
jurisdiction—that is, the statutory or constitutional power
—to adjudicate it. See Fed. R. Civ. P. 12(b)(1); Thomas v.
Metro. Corr. Ctr., No. 09 Civ. 1769, 2010 WL 2507041, at *1
(S.D.N.Y. June 21, 2010). “A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). A district court must consider
a challenge to subject matter jurisdiction before addressing
other grounds for dismissal. Rhulen Agency, Inc. v. Ala. Ins.
Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).
On a Rule 12(b)(1) motion, the Court must accept all material
factual allegations as true. J.S. ex rel. N.S. v. Attica Cent.
Schs., 386 F.3d 107, 110 (2d Cir. 2004). It may not, however,
“draw inferences ... favorable to [the] plaintiff[ ]” on such
a motion. Id. And, the Court may consider evidence outside
the pleadings to resolve disputed factual issues relating to
jurisdiction. See id.
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter ... to ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A plaintiff is not required to provide
“detailed factual allegations” in the complaint, but must assert
“more than labels and conclusions.” Twombly, 550 U.S. at
555. The court must accept the allegations in the complaint
as true and draw all reasonable inferences in favor of the
plaintiff. ATSI Commc'ns, Inc., 493 F.3d at 98. On a Rule
12(b)(6) motion, the court may consider only the complaint,
documents attached to the complaint, matters of which a court
can take judicial notice, or documents that the plaintiff knew
about and relied upon. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002).
Additionally, because Plaintiff proceeds pro se, the Court
is obligated to construe his submissions “liberally and
interpret[ ] [them] to raise the strongest arguments they
suggest.” Triestman v. Fed. Bur. of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (citation omitted). And, on a motion to dismiss,
the Court may appropriately consider a pro se plaintiff's
opposition papers to “supplement or clarify” the allegations in
their complaint. Sommersett v. City of N.Y., No. 09 Civ. 5916,
2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) (citation
omitted).
II. Duplicative and Improper Claims
*4 Count 7 of the complaint asserts a claim under 18 U.S.C.
§ 245 for the deprivation of rights under the color of law.
Compl. ¶¶ 148–51. But, no private right of action exists
under this federal criminal statute, and accordingly, Plaintiff
cannot raise a cognizable claim under it. See Corrado v. State
of N.Y. Univ. Stony Brook Police, No. 15 Civ. 7443, 2016
WL 4179946, at *3 (E.D.N.Y. Aug. 5, 2016). Count 7 is,
accordingly, DISMISSED with prejudice.
Further, the Court finds that Count 9 of the complaint—
fraudulent misrepresentation under § 1983, Compl. ¶¶ 157–
63—is duplicative of Count 4—deprivation of a fair trial
under § 1983, id. ¶¶ 133–37—because both seek redress
for violations of Plaintiff's liberty interests arising from the
alleged “fabrication of evidence by a government officer.” See
Zahrey v. Coffey, 221 F.3d 342, 349–50 (2d Cir. 2000). Count
9 is, accordingly, DISMISSED with prejudice.
Finally, three of Plaintiff's claims—Counts 4, 5, and 6—
include both federal constitutional claims and analogous
state constitutional claims. Compl. ¶¶ 133–47. The New
York State Constitution “provides a private right of action
where remedies are otherwise unavailable at common law or
under § 1983.” Allen v. Antal, 665 F. App'x 9, 13 (2d Cir.
2016). But, where alternative remedies are available under
the federal civil rights statutes, including § 1983, courts must
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dismiss the plaintiff's state constitutional claims. Id. Because
§ 1983 provides a remedy for all of Plaintiff's alleged federal
constitutional violations, any analogous state constitutional
claims are duplicative. Accordingly, the state constitutional
claims pleaded in Counts 4, 5, and 6 are DISMISSED with
prejudice.
III. The State's Motion
The State moves to dismiss the complaint under Rule 12(b)
(1), on the ground that the Eleventh Amendment bars
Plaintiff's claims against it by virtue of sovereign immunity.
State Mem. at 3, ECF No. 21. The Court agrees.
The Eleventh Amendment bars federal courts from exercising
jurisdiction over claims against states. U.S. CONST.
AMEND. XI. This extends to a state sued by its own citizens,
see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72–73 (2000),
and state agencies, see Welch v. Texas Dep't of Highways
& Pub. Transp., 483 U.S. 468, 480 (1987). There are only
limited exceptions to this rule, none of which are applicable
here.
First, a state may waive its Eleventh Amendment defense. See
Coll. Sav. Bank v. Fla. Prepaid Postsec. Educ. Expense Bd.,
527 U.S. 666, 670 (1999). Here, the State has not explicitly
waived its immunity, or consented to be sued. See State Mem.
at 3. And, by filing a motion to dismiss, rather than an answer
to the complaint, the State cannot be said to have taken actions
inconsistent with an assertion of immunity. Cf. Lapides v. Bd.
of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619 (2002)
(finding waiver of immunity where state removed action to
federal court, then asserted immunity).
Second, Congress may abrogate the states’ immunity from
suit through statute. Kimel, 528 U.S. at 80. But, Congress
has not done so for claims brought under § 1983, Dube v.
State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990), §
1985, see Robinson v. Allstate Ins. Co., 508 F. App'x 7, 9 (2d
Cir. 2013), or § 1986, Medina v. Cuomo, No. 15 Civ. 1283,
2015 WL 13744627, at *6–7 (N.D.N.Y. Nov. 9, 2015). In the
“absence of [the State's] consent,” accordingly, such claims
are “proscribed by the Eleventh Amendment.” Pennhurst St.
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also
Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35,
40 (2d Cir. 1977).
*5 Finally, the Eleventh Amendment does not bar a “suit
against a state official when that suit seeks prospective
injunctive relief.” Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 73 (1996); see also Ex parte Young, 209 U.S. 123
(1908). But here, Plaintiff seeks only money damages, and
retrospective declaratory and equitable relief. Compl. § IX.
And, Eleventh Amendment immunity shields states from
claims for money damages, Liner v. Hochul, No. 21 Civ.
11116, 2022 WL 826342, at *1 (S.D.N.Y. Mar. 17, 2022),
and “declaratory relief dealing solely with past violations,”
Medina, 2015 WL 13744627, at *7. Although Plaintiff
demands “affirmative relief necessary to eradicate the effects
of Defendants’ unlawful practices,” see Compl. § IX(B), he
does not allege any present violations of his rights, see id. See
Medina, 2015 WL 13744627, at *7 (noting that “declaratory
relief where there is no present violation, is also barred under
the Eleventh Amendment”). Accordingly, this exception does
not preclude the State's immunity defense in this matter.
Where a defendant is found to have sovereign immunity from
suit, the Court is deprived of subject-matter jurisdiction under
Rule 12(b)(1). McGinty v. New York, 251 F.3d 84, 89, 101
(2d Cir. 2001). Accordingly, because the State is immune
from liability on all of Plaintiff's claims under the Eleventh
Amendment, its motion to dismiss is GRANTED. And,
because amendment would be futile, Plaintiff's claims against
the State are DISMISSED with prejudice to renewal. 3
IV. The DA Defendants’ Motion
Plaintiff raises claims against the DA Defendants “in their
individual capacities” 4 arising inter alia under § 1983, §
1985, and § 1986, 5 based on three main factual assertions.
See generally Compl. First, Plaintiff alleges that Kalra and
Nasar wrongfully chose to prosecute him, despite the lack of
physical evidence tying him to the shooting. Compl. ¶ 81.
Second, Plaintiff asserts that Kalra and Nasar intentionally
withheld exculpatory surveillance videos until the middle of
his trial, see id. ¶¶ 75–76, 78. Third, Plaintiff alleges that the
“[p]rosecuting [a]ttorneys” “coached” Jackson to give false
testimony to the grand jury that indicted him. Id. ¶¶ 50–51.
A. Absolute Immunity
*6 The DA Defendants argue that Plaintiff's claims are
barred by absolute and qualified prosecutorial immunity. DA
Defs. Mem. at 10–12, ECF No. 22-1. To the extent Plaintiff's
claims are predicated on his allegations that Kalra and Nasar
wrongfully chose to prosecute him and withheld allegedly
exculpatory evidence, the Court agrees.
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1. Federal Claims
Although § 1983 has no immunities on its face, the Supreme
Court has held that, when Congress initially enacted the
statute, it did not intend to abrogate existing immunities
established at common law. See Imbler v. Pachtman, 424
U.S. 409, 418 (1976). Thus, both absolute and qualified
immunity are applicable defenses to § 1983 claims. See
Bernard v. Cty. of Suffolk, 356 F.3d 495, 502 (2d Cir.
2004). Prosecutors are entitled to “absolute immunity” from
liability when they function as advocates for the state in
circumstances “intimately associated with the judicial phase
of the criminal process.” Imbler, 424 U.S. at 430. But,
prosecutors are entitled only to “qualified immunity” when
they perform “investigative functions” normally undertaken
by a police officer. Buckley v. Fitzsimmons, 509 U.S. 259,
273 (1993). Under the doctrine of qualified immunity, an
official is immune from liability “only when in light of clearly
established law and the information the official possesses, it
was objectively reasonable for him to think that his actions
were lawful.” Hill v. City of N.Y., 45 F.3d 653, 663 (2d Cir.
1995).
Courts employ a “functional approach” to determine the
availability of absolute immunity, looking to “the nature of
the function performed, not the identity of the actor who
performed it.” Buckley, 509 U.S. at 269 (citations omitted).
And, although the party claiming absolute immunity bears the
burden of establishing its applicability, see Doe v. Phillips, 81
F.3d 1204, 1209 (2d Cir. 1996), if the court finds that that the
conduct at issue is covered by absolute immunity, then the
actor is shielded from liability for damages no matter “how[ ]
erroneous the act ... and how[ ] injurious ... its consequences.”
Cleavinger v. Saxner, 474 U.S. 193, 199–200 (1985) (citation
omitted); see also Anilao v. Spota, No. 19 Civ. 3949, 2022
WL 697663, at *4 (2d Cir. Mar. 9, 2022).
Plaintiff first alleges that Kalra and Nasar improperly chose
to prosecute him, despite a lack of physical evidence tying
him to the crime. Compl. ¶ 81. But, prosecutors are immune
from suit for decisions regarding “whether and when to
prosecute,” Imbler, 424 U.S. at 430–31 n.32–33, even where
they may prosecute an innocent individual, Schmueli, 424
F.3d at 237–39. Kalra and Nasar are, therefore, entitled to
absolute immunity to the extent Plaintiff's claims are based on
their decision to prosecute him. 6
Second, Plaintiff alleges that Kalra and Nasar intentionally
withheld exculpatory surveillance videos until the middle
of trial, Compl. ¶¶ 75–76, 78. But again, prosecutors are
entitled to absolute immunity for all decisions taken “in
their prosecutorial capacity, including decisions regarding
which evidence should be disclosed to a criminal defendant.”
Newson v. City of N.Y., No. 16 Civ. 6773, 2019 WL
3997466, at *3 (E.D.N.Y. Aug. 23, 2019). This is true
even where information was deliberately withheld, Ying Li
v. City of New York, 246 F. Supp. 3d 578, 640 (E.D.N.Y.
2017), or where such withholding violated the defendant's
constitutional rights, see Warney v. Monroe Cnty., 587 F.3d
113, 125 (2d Cir. 2009). Accordingly, Kalra and Nasar have
absolute immunity to the extent any of Plaintiff's claims are
predicated on a violation under this factual allegation.
*7 Finally, Plaintiff alleges that the “Prosecuting Attorneys”
coached Jackson to give false testimony to the grand jury,
which then formed the basis for his indictment. Compl. ¶¶
50–51. Prosecutors generally only have qualified immunity
for actions taken before there is probable cause to arrest
a defendant, because they are performing an investigative
function, rather than acting as advocates. See Hill, 45 F.3d
at 661; Buckley, 509 U.S. at 273. And, although “knowingly
presenting evidence” to a grand jury is considered the “core
of a prosecutor's role as an advocate,” Bernard, 356 F.3d
at 503, the Second Circuit has distinguished between a
prosecutor's knowing presentation of false evidence to the
grand jury—which is still entitled to absolute immunity
—from a prosecutor's deliberate fabrication of evidence,
Hill, 45 F.3d at 662–63 (finding that where prosecutor
deliberately manufactured evidence to establish probable
cause for plaintiff's arrest, his conduct was investigatory,
regardless of whether, when the evidence was manufactured,
the prosecutor intended to present it to the grand jury). In
Hill, the Second Circuit also established that “when it may not
be gleaned from the complaint whether the conduct objected
to was performed by the prosecutor in an advocacy or an
investigatory role, the availability of qualified immunity from
claims based on such conduct cannot be decided as a matter
of law on a motion to dismiss.” Id. at 663.
As in Hill, Plaintiff alleges that the prosecutors deliberately
participated in the fabrication of false evidence by coaching
a material witness to give perjured testimony to the grand
jury, so that the jury would return an indictment. Compl.
¶¶ 50–51. Allegations that the prosecution falsified evidence
are distinct from allegations that the prosecution merely
presented evidence they knew to be false. Compare Hill,
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45 F.3d at 662–63, with Urrego v. United States, No. 00
Civ. 1203, 2005 WL 1263291, at *2 (E.D.N.Y. May 27,
2005) (prosecutors receive absolute immunity for claims
predicated on “false presentation of evidence to a grand
jury”). And, considering the Court's obligation to liberally
construe Plaintiff's pleadings and afford every reasonable
inference in his favor at this stage, the Court concludes the
DA Defendants have not established that they were acting as
“advocates,” rather than “investigators,” when they engaged
in the challenged conduct. Hill, 45 F.3d at 660 (officials
asserting absolute immunity bear the burden of establishing
it for the action in question). And, accepting the facts in
the complaint as true, the DA Defendants would not be
entitled to even qualified immunity, because it is objectively
unreasonable for them to have knowingly coached a witness
to give false testimony before a grand jury. See Cipolla v.
Cty. of Rensselaer, 129 F. Supp. 2d 436, 456 (N.D.N.Y.
2001) (not “objectively reasonable” to believe presenting or
soliciting perjured testimony did not violate plaintiff's clearly
established rights). Accordingly, to the extent that Counts 3, 4,
5, 6, and 8 are predicated on the claim that the DA Defendants
coached Jackson to give false testimony, they are not entitled
to either absolute or qualified immunity.
2. State Claims
Plaintiff raises state-law claims against the DA Defendants
in Counts 10 and 14 of the complaint. Compl. ¶¶ 164–67,
182–85. As with federal law, under New York law, a district
attorney prosecuting crime is performing a quasi-judicial
function, and, as such, is entitled to absolute immunity.
Arteaga v. State, 72 N.Y.2d 212, 217 n.1 (N.Y. 1988). But,
unlike federal law, prosecutors are absolutely immune for
official acts in both the prosecution and investigation of
criminal charges. See Moore v. Dormin, 173 Misc. 2d 836,
843, (N.Y. Sup. Ct. 1997), aff'd as modified, 252 A.D.2d 421
(N.Y. App. Div. 1998). A prosecutor does not receive absolute
immunity, however, “when knowingly acting in violation of
law.” Id. As with Plaintiff's federal claims, to the extent his
state law claims against the DA Defendants are predicated
on his allegations that they improperly targeted him for
prosecution or deliberately withheld exculpatory evidence,
the DA Defendants are entitled to absolute immunity. But,
construing Plaintiff's third allegation liberally, he essentially
claims that the prosecutors knowingly acted in violation of
the law by suborning perjury. The Court cannot conclude,
therefore, that the DA Defendants are entitled to absolute
immunity as a matter of state law to the extent Counts 10 and
14 rest on this allegation. 7
B. Time Bar
*8 The DA Defendants argue that Plaintiff's claims are
untimely. DA Defs. Mem. at 6–8. With the exception of
Counts 3 (§ 1983 malicious prosecution) and 4 (§ 1983
deprivation of a fair trial), the Court agrees.
1. Federal Claims
Claims arising under §§ 1983 and 1985, when brought in
this district, are governed by New York's three-year statute of
limitations for personal injury actions, N.Y. C.P.L.R. § 214;
Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002)
(citation omitted); Hernandez-Avila v. Averill, 725 F.2d 25, 27
n.3 (2d Cir. 1984). But, claims under § 1986 have a one-year
statute of limitations, see 42 U.S.C. § 1986. Federal courts
are also obligated to apply New York's tolling rules. Bd. of
Regents of Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478,
483 (1980).
On March 20, 2020, then-Governor Andrew Cuomo issued
Executive Order 202.8, which tolled the statute of limitations
in New York in light of the COVID-19 pandemic. 9
N.Y.C.R.R. § 8.202.8. Subsequent orders extended the tolling
period until November 3, 2020. Exec. Order 202.67 (Oct. 4,
2020). Contrary to the DA Defendants’ assertion, see DA
Defs. Mem. at 7–8, other courts in this district have uniformly
concluded that Executive Order 202.8 applies to federal cases
applying New York's statute of limitations, including for §
1983 claims. See, e.g., Lewis v. Westchester Cnty., No. 20 Civ.
9017, 2021 WL 3932626, at *2 n.3 (S.D.N.Y. Sept. 2, 2021). 8
The Court concludes, therefore, that Executive Order 202.8
tolls the statute of limitations for Plaintiff's §§ 1983 and 1985
claims, which apply New York's three-year limitations period
—but not Plaintiff's § 1986 claims, because the applicable
statute of limitations for that claim is found in the federal
statute itself.
Section 1983 claims based on malicious prosecution or
deprivation of a fair trial accrue when the underlying criminal
action against the plaintiff is “favorably” terminated, rather
than at the time of arrest. Sharp v. Cnty. of Putnam, No.
18 Civ. 780, 2019 WL 2250412, at *4 (S.D.N. Y May
24, 2019); Shabazz v. Kailer, 201 F. Supp. 3d 386, 394
(S.D.N.Y. 2016). The dismissal of an indictment constitutes
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the termination of a proceeding. Sharp, 2019 WL 2250412,
at *4–5. Applying these principles, Plaintiff's § 1983 claims
for malicious prosecution (Count 3) and denial of a fair trial
(Count 4) accrued on October 17, 2017, the date the trial
court dismissed the indictment against him. Dismissal Tr. at
5. And, although the statute of limitations would have expired
on October 17, 2020, New York's COVID-19 tolling rule
extended the limitations period until June 2, 2021. 9 Because
Plaintiff commenced this suit on March 12, 2021, Counts 3
and 4 are timely.
*9 By contrast, a § 1983 abuse-of-process claim accrues
when the criminal process is “set in motion—typically
at arrest—against the plaintiff.” Hadid v. City of N.Y.,
No. 15 Civ. 19, 2015 WL 7734098, at *5 (E.D.N.Y.
Nov. 30, 2015), aff'd 730 F. App'x 68 (2d Cir. 2018).
Because Plaintiff was arrested on January 27, 2016, the
relevant statute of limitations for Count 8, § 1983 abuse
of process, expired on January 27, 2019, and COVID-19
tolling provisions are, therefore, inapplicable. Accordingly,
this claim is DISMISSED with prejudice as untimely.
Section 1985(3) conspiracy claims accrue “at the time of
the events that caused the injury.” Panetta v. Cassel, 20
Civ. 2255, 2020 WL 2521533, at *5 (S.D.N.Y. May 18,
2020). The existence of a conspiracy “does not postpone the
accrual of causes of action arising out of the conspirators’
separate wrongs. It is the wrongful act, not the conspiracy,
which is actionable, whether the act is labelled a tort or a
violation of [federal civil rights statutes].” Singleton v. City
of N.Y., 632 F.2d 185, 192 (2d Cir. 1980) (citation omitted).
As discussed, the single allegation that escapes absolute
immunity—and therefore is the only remaining basis for
Plaintiff's claims against the DA Defendants—is that those
defendants suborned perjury in the grand jury proceedings
by coaching Jackson to give false testimony, resulting in
Plaintiff's indictment and arrest. Plaintiff's § 1985(3) claim—
Count 5 of the complaint—accrued no later than January 27,
2016, the date of his arrest—which again, applying a three-
year statute of limitations untouched by COVID-19 tolling
provisions, renders it untimely. Count 5 is, accordingly,
DISMISSED with prejudice.
Similarly, Count 6, Plaintiff's § 1986 conspiracy claim,
accrued when Plaintiff knew, or had reason to know of the
harm or injury. Young v. Lord & Taylor, LLC, 937 F. Supp. 2d
346, 354 (E.D.N.Y. 2013). Plaintiff knew of the injury by his
arrest date. Applying § 1986’s one-year statute of limitations,
any § 1986 claim Plaintiff brought after January 27, 2017,
is untimely. 10 Accordingly, Count 6 is DISMISSED with
prejudice.
2. State Claims
Counts 10 and 14 of the complaint—both state common-
law claims—are also time-barred. “Under New York law,
a plaintiff asserting tort claims against the City or its
employees,” as well as against municipal officials like district
attorneys, “must file a notice of claim within [90] days after
the incident giving rise to the claim and commence the action
within a year and [90] days from the date of the incident.”
Brown v. City of N.Y., No. 18 Civ. 3287, 2020 WL 1819880,
at *7 (S.D.N.Y. Apr. 9, 2020) (citing N.Y. Gen. Mun. Law
§§ 50-e(1)(a), 50-i(1)); see also Gonzalez v. City of N.Y., No.
94 Civ. 7377, 1996 WL 227824, *2 (S.D.N.Y. May 3, 1996).
Plaintiff asserts that he filed the requisite notice of claim with
the City on January 16, 2018—720 days after his arrest, and
91 days after the dismissal of the indictment. Compl. ¶ 16.
Plaintiff did not commence this action until March 12, 2021.
See Compl. Therefore, Plaintiff neither timely filed a notice of
claim within 90 days, nor did he commence this lawsuit within
a year and 90 days after the date the indictment was dismissed
—the last date that could possibly serve as the trigger for the
statute of limitations. Failure to comply with the mandatory
notice of claim requirements is a basis for dismissal of a
plaintiff's claims. Warner v. Vill. of Goshen Police Dep't, 256
F. Supp. 2d 171, 175 (S.D.N.Y. 2003). The Court, accordingly,
concludes that Counts 10 and 14 are also time-barred, and
therefore, these claims are DISMISSED with prejudice.
C. Personal Involvement
*10 Liability under § 1983 must be premised on a
defendant's direct, personal involvement in the alleged
violations. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020). A defendant cannot be held vicariously liable
under § 1983 for employing or supervising an employee
that violated the plaintiff's rights—rather, a plaintiff must
plead “that each Government-official defendant, through
the official's own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676.
As to Vance, Plaintiff only alleges that he served as the DA
of New York County. Compl. ¶ 11. Vance may not be held
liable for merely employing or supervising Kalra and Nasar.
See Iqbal, 556 U.S. at 676. And, Plaintiff neither pleads that
Vance was personally involved in investigating the shooting
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or prosecuting him, nor is there any evidence in the record to
support such a finding. Accordingly, Plaintiff's claims against
Vance are DISMISSED with prejudice, because given the lack
of evidence of Vance's personal involvement, the Court finds
that granting leave to amend would be futile. Hill v. Curcione,
657 F.3d 116, 123–24 (2d Cir. 2011).
Plaintiff similarly fails to specify Kalra and Nasar's personal
involvement in his claimed constitutional violations, stating
only that the “Prosecuting Attorneys” coached Jackson to
provide testimony. Compl. ¶ 50. But, given Plaintiff's position
as a pro se litigant, the Court recognizes that there may be
additional information made available to Plaintiff through
discovery that would enable Plaintiff to assert claims directly
against Kalra and Nasar, such as if, for example, either
of them prepared Jackson to testify. By April 15, 2022,
accordingly, the DA Defendants shall, through counsel,
inform Plaintiff and the Court whether Kalra or Nasar
prepared Jackson to testify before the grand jury with respect
to any potential criminal charges against Plaintiff, and/or
conducted an examination of Jackson before the grand jury.
No later than May 16, 2022, Plaintiff shall file an amended
complaint, alleging with specificity Kalra and Nasar's direct,
personal involvement in either “coaching” Jackson to testify
falsely before the grand jury, or deliberately eliciting false
testimony from Jackson during the grand jury proceedings.
In addition, because, as detailed infra at 25–26, the Court
finds that Plaintiff's malicious prosecution claim is deficient
because he failed to allege that the underlying criminal
proceedings terminated in his favor, an argument raised by
the City Defendants but not the DA Defendants, any amended
malicious prosecution claim that Plaintiff wishes to assert
against Kalra and Nasar should also address this issue. Failure
to do so shall result in dismissal with prejudice of Plaintiff's
remaining claims against Kalra and Nasar.
V. City's Motion to Dismiss
Plaintiff brings claims against the City Defendants, on the
grounds that (1) Miller failed to conduct a thorough and
complete investigation of the shooting, by not interviewing
several witnesses, including the 911 caller, Compl. ¶¶ 36–37,
39; (2) in his investigation, Miller obtained—but disregarded
—surveillance video from both the inside and outside of
Highline Ballroom, id. ¶¶ 40–43; (3) that Miller “used his own
added facts and embellished statements” in his investigative
reports to target Plaintiff as the sole suspect in the shooting, id.
¶ 44, see also ¶ 39; (4) that Corrando, as Miller's supervisor,
approved his investigative reports but failed to notice the
inconsistencies and contradictions therein, id. ¶ 95; and (5)
that Passamenti “authorized DNA tests,” which revealed that
the DNA evidence recovered at the scene “did not match
Plaintiff,” id. ¶ 96. The Court addresses each remaining 11
cause of action.
A. Time Bar
1. Section 1983 Claims
*11 Plaintiff brings claims under § 1983 for unlawful search
and seizure (Count 1); false arrest (Count 2); malicious
prosecution (Count 3); deprivation of a fair trial (Count 4);
and abuse of process (Count 8). As noted, § 1983 claims are
subject to a three-year statute of limitations in this district. See
supra at 15. And, for the reasons discussed with respect to
the DA Defendants, the Court concludes that Counts 3 and 4
were timely pleaded. See supra at 16–17.
A § 1983 unlawful search and seizure claim, however,
accrues on the date the allegedly unlawful search occurred.
McClanahan v. Kelly, No. 12 Civ. 5326, 2014 WL 1317612, at
*4 (S.D.N.Y. Mar. 31, 2014). Plaintiff alleges that his property
was searched on January 9, February 12, and February 15,
2016. Compl. ¶¶ 46–47. The applicable statute of limitations,
therefore, expired no later than February 15, 2019, nearly
two years before Plaintiff brought suit. Plaintiff's claims
are, therefore, untimely, and Count 1 is DISMISSED with
prejudice as time-barred.
Section 1983 false arrest claims and abuse-of-process claims
accrue from the date of Plaintiff's arrest. See Rivera v. City
of N.Y., No. 16 Civ. 9709, 2019 WL 252019, at *4 (S.D.N.Y.
Jan. 17, 2019) (false arrest); Anderson v. Cnty. of Putnam,
No. 14 Civ. 7162, 2016 WL 297737, at *3 (S.D.N.Y. Jan. 22,
2016) (abuse-of-process). Plaintiff was arrested on January
27, 2016, and therefore, any such claims should have been
brought no later than January 27, 2019. Counts 2 and 8 are,
accordingly, DISMISSED with prejudice as untimely.
2. Sections 1985(3) and 1986 Claims
Liberally construing the complaint, in Count 5, Plaintiff
sets forth a conspiracy cause of action under § 1985(3),
alleging that the City Defendants engaged in a conspiracy to
have Plaintiff wrongfully convicted, see Compl. ¶ 97. This
claim appears predicated on the NYPD investigation into the
January 6, 2016 shooting, and Miller's alleged embellishment
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of information, and focus on Plaintiff as the sole suspect.
Id. ¶¶ 36–37, 39, 46, 90. Plaintiff also raises a failure-to-
intervene claim under § 1986 (Count 6), seemingly arising
from Corrando's alleged failure to notice the inconsistencies
and contradictory statements allegedly included in Miller's
police reports. Id. ¶ 95.
Section 1985(3) claims accrue “at the time of the events that
caused the injury,” and are subject to a three-year statute
of limitations, Panetta, 2020 WL 2521533, at *5. Section
1986 claims based on a failure to intervene accrue when the
defendant fails to intervene, Thomas v. City of Troy, 293 F.
Supp. 3d 282, 303 (N.D.N.Y. 2018), and must be brought
within one year, see 42 U.S.C. § 1986. Plaintiff's claims
each began accruing no later than January 27, 2016, the date
of Plaintiff's arrest, because Plaintiff does not suggest that
any investigation took place after that date. The applicable
limitations period extends no later than January 27, 2019,
for Plaintiff's § 1985(3) claim, and January 27, 2017 for
Plaintiff's § 1986 claim, two and four years, respectively,
before the complaint was filed. Counts 5 and 6 are, therefore,
DISMISSED with prejudice as time-barred.
3. State Claims
To the extent Plaintiff's state common-law claims, asserting
various types of negligence, arise from the NYPD
investigation into the shooting on January 6, 2016; the
searches of Plaintiff's property on January 9, February 12,
and February 15, 2016; and Plaintiff's arrest on January 27,
2016, Plaintiff was required to file a notice of claim within
90 days of those events, see N.Y. Gen. Mun. L. § 50-e. As
noted, Plaintiff did not file a notice of claim with the City
until January 16, 2018—one year and eleven months after
the latest of those dates. Compl. ¶ 16. Accordingly, each of
Plaintiff's negligence claims (Counts 10–14) are DISMISSED
with prejudice. 12
B. Claim Against the City 13
*12 The Court reads Plaintiff's complaint as claiming, under
Monell v. Department of Social Services, 436 U.S. 658,
that the City is liable for the allegedly unlawful conduct
of the named NYPD officers. See Compl. ¶ 179. The City
Defendants argue that Plaintiff does not include sufficient
factual allegations to support a municipal liability claim. City
Defs. Mem. at 20–22, ECF No. 34. The Court agrees.
To bring a municipal liability claim under § 1983, the plaintiff
must “prove the existence of a municipal policy or custom,”
then demonstrate a causal connection between the policy
and the alleged constitutional deprivation. Vippolis v. Vill. of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). Plaintiff pleads
neither, offering only conclusory allegations that the City
Defendants “engaged in a pattern and practice to commit
the aforementioned unlawful acts,” Compl. ¶ 179, and that
a policy is “inferred” because the City Defendants “took
no steps to reprimand or discharge the officers involved,”
ECF No. 39 at 27. These allegations cannot, without more,
state a claim for municipal liability. E.g., Fleming v. City
of New York, No. 18 Civ. 4866, 2020 WL 5522871, at *6
(S.D.N.Y. July 23, 2020). Because Plaintiff offers no facts
which suggest that the deficiencies in his Monell claim may
be cured by amendment, any such claim is DISMISSED with
prejudice. Strong v. City of Syracuse, No. 16 Civ. 1054, 2020
WL 137250, at *3–4 (N.D.N.Y. Jan. 13, 2020) (dismissing
Monell claim, with prejudice, given “[p]laintiff's conclusory
allegations are insufficient to plausibly infer a custom or
policy to support municipal liability”).
C. Passamenti's Personal Involvement
Plaintiff's remaining claims are Counts 3 (malicious
prosecution) and 4 (denial of a fair trial). As to Defendant
Passamenti, Plaintiff alleges that Passamenti authorized DNA
tests, which revealed that the DNA evidence recovered at the
scene “did not match Plaintiff.” Compl. ¶ 96. Plaintiff does
not allege that Passamenti was involved in falsification of
evidence, that he attempted to hide the results of the relevant
DNA tests, or that he was otherwise responsible for, or even
aware of, the alleged “embellishment” of statements in the
NYPD's investigative reports. Plaintiff has not, therefore,
sufficiently alleged Passamenti's direct, personal involvement
in any constitutional violations under § 1983. Tangreti, 983
F.3d at 618. And, because the record does not establish
that Plaintiff could cure this pleading defect by amendment,
Plaintiff's claims against Passamenti are DISMISSED with
prejudice.
D. Malicious Prosecution
A claim for malicious prosecution under § 1983—Count
3 of the complaint—requires the plaintiff to show that the
criminal proceedings against him were terminated “in his
favor,” typically by an acquittal or another form of dismissal
of the charges on the merits. Janetka v. Dabe, 892 F.2d 187,
189–90 (1989). The City Defendants argue that Plaintiff has
not made such a showing. City Defs. Mem. at 10, 14–17. The
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Court agrees. Plaintiff asserts—citing no authority in support
—that the dismissal of the indictment was a “termination
in his favor” because dismissals that “include constitutional
privilege assertions are considered favorable terminations.”
ECF No. 39 at 7, 10 (quotation marks omitted). It is not clear
what Plaintiff means by this. And, from the Court's review
of the state court transcript, it appears that, in dismissing
the indictment, neither the prosecution, nor the court, made
any statements indicating a belief in Plaintiff's innocence. See
Lanning v. City of Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018)
(looking to the “reasons ... stated on the record for dismissing
the charges” in determining whether the termination of
the criminal case was in plaintiff's favor). Indeed, Kalra
expressly declined to concede that Plaintiff was innocent,
instead reaffirming her belief that Plaintiff “was the shooter.”
Dismissal Tr. at 15. The presiding judge similarly stated on
the record that dismissal of the indictment was warranted even
though he did not “see any prosecutorial misconduct.” Id. at
16. The dismissal of the indictment, therefore, left open the
question of Plaintiff's guilt or innocence, and Plaintiff cannot,
accordingly, assert on that basis alone, that the proceedings
were terminated in his favor.
*13 The Court notes, however, that because four years
have passed since the dismissal of the indictment, Plaintiff
may be able to plead additional facts from that time that
support this relevant element of his claim. There is no
information before the Court as to whether, for example,
Plaintiff was ever informed by the prosecutors that he had
been cleared of wrongdoing, whether Jackson or anyone
else was later prosecuted for the shooting, or whether the
state court made any further statements regarding the merits
of the charges against Plaintiff. Count 3 is, accordingly,
DISMISSED without prejudice, to provide Plaintiff with an
opportunity to plead additional facts to support this claim.
E. Denial of Fair Trial
To state a claim under § 1983 for denial of a fair trial based on
the fabrication of evidence by a police officer—Count 4 of the
complaint—a plaintiff must allege that “an (1) investigating
official (2) fabricates information (3) that is likely to influence
a jury's verdict, (4) forwards that information to prosecutors,
and (5) the plaintiff suffers a deprivation of life, liberty, or
property as a result.” Garnett v. Undercover Officer C0039,
838 F.3d 265, 277 (2d Cir. 2016) (citation omitted). The
plaintiff need not show a favorable termination indicative
of innocence to state such a claim. Smalls v. Collins, 10
F. 4th 117, 142–43 (2d Cir. 2021). The City Defendants
argue that Plaintiff has failed to show a deprivation of his
liberty interests because there was probable cause for his
prosecution, in the form of corroborative ballistics evidence.
City Defs. Mem. at 16 (citing Dismissal Tr. at 15); City Defs.
Reply at 6–7, ECF No. 46.
Probable cause is not a complete defense to a fair trial claim.
Torres v. City of N.Y., No. 16 Civ. 6719, 2017 WL 4325822, at
*5 (E.D.N.Y. Sept. 27, 2017) (noting that where “independent
probable cause exists for the prosecution,” a plaintiff must
“show that the misconduct caused some deprivation above
and beyond the fact of the prosecution itself.” (citation
omitted)). Plaintiff plausibly alleges that Miller fabricated
and “embellished” Jackson's statements in his investigative
report; that Miller provided these reports to prosecutors to
secure Plaintiff's indictment and arrest; and that Corrando,
as Miller's supervisor, reviewed and approved these reports
without identifying any “embellishments” or obvious factual
contradictions. See Compl. ¶¶ 44–49, 95. On a motion to
dismiss, the Court cannot take as true the City Defendants’
factual assertion that, regardless of any alleged fabrications
in Miller's reports, the prosecution had independent ballistics
evidence to satisfy the probable cause standard. Compare City
Defs. Reply at 6–7, with ECF No. 39 at 9–12. It cannot,
therefore, find as a matter of law, that the City Defendants had
probable cause for Plaintiff's indictment and prosecution. See
Bullard v. City of N.Y., 240 F. Supp. 2d 292, 299 (S.D.N.Y.
2003). The Court concludes, therefore, that Plaintiff has
sufficiently alleged a § 1983 denial of fair trial claim against
Miller and Corrando. The City Defendants’ motion to dismiss
Count 4 of the complaint is, accordingly, DENIED.
CONCLUSION
For the reasons stated above, the State's motion to dismiss,
ECF No. 20, is GRANTED, and Plaintiff's claims against
the State are DISMISSED. The DA Defendants’ motion
to dismiss, ECF No. 22, is GRANTED—Plaintiff's claims
against Vance are DISMISSED; and his claims against Kalra
and Nasar are DISMISSED except for Counts 3 and 4, which
are DISMISSED without prejudice to renewal in an amended
complaint. By April 15, 2022, the DA Defendants shall make
the disclosures directed in this order. The City Defendants’
motion to dismiss is DENIED as to Count 4, and GRANTED
in all other respects. Plaintiff's claims against Passamenti, the
NYPD, and the City are DISMISSED; and his claims against
Miller and Corrando are DISMISSED, except for Count 3,
which is DISMISSED without prejudice to renewal in an
amended complaint.
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*14 By May 16, 2022, Plaintiff shall file an amended
complaint as to Counts 3 and 4, with the additional factual
allegations detailed in this order. The Clerk of Court is
directed to terminate the motions pending at ECF Nos. 20,
22, and 32, and mail a copy of this order to Plaintiff pro se.
The Court shall separately provide Plaintiff with a copy of all
unpublished cases cited herein.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 992885
Footnotes
1 Unless otherwise stated, the following facts are taken from the complaint and assumed, for purposes of this
motion, to be true. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
2 The relevant state court trial transcripts were submitted by the DA Defendants in their motion to dismiss. See
Trial Tr.; Dismissal Tr., ECF No. 22-4. The Court may take judicial notice of these transcripts as a matter of
public record. See Shmueli v. City of N.Y., 424 F.3d 231, 233 (2d Cir. 2005).
3 Because the Court concludes that it lacks jurisdiction over Plaintiff's claims against the State under Rule
12(b)(1), it need not reach the State's alternative ground for dismissal, that Plaintiff's § 1983 and § 1985
claims must be dismissed because the State is not a suable “person” within the meaning of those statutes.
State Mem. at 3–4.
4 Plaintiff makes this clarification for the first time in his opposition papers. ECF No. 28 at 14. The Court notes
that because, as discussed, the Eleventh Amendment bars suits against states, see supra at 8–10, when
a defendant is sued in his official capacity, the court treats the suit as one against the “entity of which an
officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting Monell v. N.Y.C. Dep't of
Soc. Serves, 436 U.S. 658, 690 n.55 (1978)). And, where a “district attorney or an assistant district attorney
acts as a prosecutor, she is an agent of the State, and therefore immune from suit in her official capacity.”
D'Alessandro v. City of N.Y., 713 F. App'x 1, 8 (2d Cir. 2017). Accordingly, any claims Plaintiff may raise
against the DA Defendants in their “official capacity” would be precluded by immunity under the Eleventh
Amendment. See id.
5 Although Plaintiff asserts that he pleads each of his claims against “all Defendants,” even a liberal read of
the complaint makes clear that certain of Plaintiff's claims cannot implicate the DA Defendants’ conduct,
including counts 1 (unreasonable search and seizure); 2 (false arrest/imprisonment); 11 (personal injury);
12 (property damage) and 13 (negligent hiring, training, supervision, and discipline of officers). Compl. ¶¶
117–27, 168–81. As the Court has already dismissed Counts 7 and 9, see supra at 7–8, it only considers
Counts 3 (malicious prosecution); 4 (deprivation of fair trial); 5 (conspiracy); 6 (failure to intervene); 8 (abuse
of process); 10 (negligent misrepresentation); and 14 (negligent infliction of emotional distress) against the
DA Defendants.
6 Because the Court finds that the DA Defendants are entitled to absolute immunity on any claims arising from
the withholding of exculpatory evidence, the Court does not reach their alternative argument that Plaintiff fails
to state a claim for an alleged Brady violation, see DA Defs. Mem. at 12–15.
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7 As noted, the parallel state-law constitutional claims in Counts 4, 5, and 6 are dismissed with prejudice. See
supra at 8.
8 The DA Defendants’ reliance on Johnson v. Fargione is unavailing. In that case, the court found that the
plaintiff's claims, which had expired weeks before the issuance of Executive Order 202.8, could not “be said
to have been tolled” by that Executive Order, as the time for filing had already passed and the plaintiff had
offered no excuse for the delay. 20 Civ. 764, 2021 WL 1406683, at *3 (N.D.N.Y. Feb. 17, 2021), report and
recommendation adopted 2021 WL 1404554 (Apr. 14, 2021). Although Johnson is instructive with respect
to how claims that may have expired before the issuance of Executive Order 202.8 (i.e., before March 20,
2020) should be treated, it does not address the applicability of the Executive Order to federal claims that,
like Plaintiff's, had not yet expired by that date.
9 Executive Order 202.8 tolled applicable limitations periods from March 20, 2020 to November 3, 2020. The
order amounted to a “pause” in the limitations period—that is, during the duration of the toll, the clock to file
[did] not run,” but “[o]nce the toll end[ed,] the clock resume[d] from where it was when the toll began, and the
plaintiff ha[d] the rest of his limitations period to file his complaint,” Johnston v. City of Syracuse, No. 20 Civ.
1497, 2021 WL 3930703, at *6 (N.D.N.Y. Sept. 2, 2021). Because, as of March 20, 2020, when the clock
was “paused,” Plaintiff had 211 days remaining before the expiration of the limitations period on October 17,
2020, the Court calculates 211 days after November 3, 2020, as the end of the relevant limitations period
when tolled—which is June 2, 2021.
10 Even assuming, arguendo, that Plaintiff would not have had reason to know of the harm or injury that was
the basis of his Section 1986 claim until the date the indictment was dismissed (October 17, 2017), the claim
would still be time-barred, because this would only extend the limitations period to October 17, 2018—nearly
three years before the commencement of this action.
11 As noted, the Court dismissed Count 7 for relying on a statute that does not provide a private right of action,
see supra at 7; Count 9 for being duplicative of Count 4, see id. at 8, and all the state constitutional claims
Plaintiff asserts analogously to his federal constitutional claims, see id.
12 As discussed supra at 18–19, even if the Court construes Plaintiff's notice of claim as timely based on the
dismissal of Plaintiff's criminal case on October 17, 2017, Plaintiff still failed to commence this action within
one year and 90 days, as required by statute. This provides an alternative ground for dismissal.
13 Plaintiff also names the NYPD as a defendant. See Compl. But, the NYPD is a non-suable agency of the
City, and thus, to the extent any of Plaintiff's claims are brought against it, they fail as a matter of law. See
Jenkins v. City of N.Y., 478 F.3d 76, 93 n.19 (2d Cir. 2007). Any such claims are, accordingly, DISMISSED
with prejudice.
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Thorpe v. Delta Air Lines, Inc., Slip Copy (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 5007423
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Quincy THORPE, Plaintiff,
v.
DELTA AIR LINES, INC., Defendant.
24-CV-01089 (HG)
|
Signed December 6, 2024
Attorneys and Law Firms
Natraj S. Bhushan, Natraj Bhushan, Turturro Law, P.C., Staten
Island, NY, Eric Howard, The Howard Law Firm P.C., New
York, NY, for Plaintiff.
Ira Gregg Rosenstein, Carolyn Corcoran, John Paul Guyette,
Morgan Lewis & Bockius LLP, New York, NY, for Defendant.
MEMORANDUM & ORDER
HECTOR GONZALEZ, United States District Judge:
*1 In September 2019, during his time as an employee
of Defendant Delta Air Lines, Plaintiff Quincy Thorpe was
arrested by the FBI. See ECF No. 11 ¶ 16 (Am. Compl.,
“AC”). A grand jury sitting in this District indicted Plaintiff
and his then-co-defendant for conspiracy to steal cargo and
for the substantive offense of stealing cargo at John F.
Kennedy International Airport (“JFK”). See United States
v. Thorpe, No. 19-cr-00492, ECF No. 7 (E.D.N.Y. Oct. 24,
2019) (Criminal Indictment, “Indictment”). I presided over
Plaintiff's criminal trial at which a jury acquitted him of those
charges. See id., ECF No. 88 (Judgment of Acquittal). Now,
Plaintiff has filed a civil suit against his former employer,
Delta, for violation of the federal Family and Medical Leave
Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. AC ¶¶ 31–37.
Plaintiff also brings state law claims for breach of contract,
malicious prosecution, and abuse of process. Id. ¶¶ 26–
30, 38–48. Delta has moved to dismiss, see ECF No. 16-1
(Motion to Dismiss, “Mot.”); ECF No. 18 (“Reply”), which
Plaintiff opposes, see ECF No. 17 (Opposition, “Opp.”). For
the reasons explained below, Delta's motion is granted in full.
BACKGROUND
The Court draws the following facts from the AC. The
Court “recite[s] the substance of the allegations as if they
represent[ ] true facts, with the understanding that these are
not findings of the [C]ourt, as [I] have no way of knowing at
this stage what are the true facts.” In re Hain Celestial Grp.,
Inc. Sec. Litig., 20 F.4th 131, 133 (2d Cir. 2021). 1
Plaintiff started working at Delta's JFK location in 1997. AC ¶
6. As a ground services employee, his tasks included loading
and unloading bags from planes. Id. ¶ 7. On September 24,
2019, Delta was transporting bags of cash from JFK. Id. ¶¶
17–18 & n.2 2 ; see also Opp. at 6. 3 But one bag did not make
it to its Miami destination and the $258,000 in it was missing.
AC ¶ 17 & n.2. On that same day, Plaintiff injured his shoulder
after lifting a heavy electrical wheelchair at JFK. Id. ¶ 9.
*2 When Plaintiff reported to work the next day, September
25, his shoulder injury left him in such pain that he could not
complete his shift. Id. ¶ 11. He informed a Delta supervisor,
who directed Plaintiff to complete worker's compensation
forms. Id. He was then “excused, approved for medical
leave[,] and went home early ... out on disability.” Id. Later
that day, Plaintiff visited a doctor, who recommended that
Plaintiff be placed on medical leave. Id. ¶ 12. Delta authorized
that leave. Id. As of September 25, Plaintiff was already
“receiving short-term disability benefit [sic] and worker's
compensation benefits.” Id. ¶ 13. But the FBI arrested him
on the next day, September 26, on charges related to stealing
the missing bag. Id. ¶¶ 16, 17 & n.2, 39, 46; see also Opp. at
6. Plaintiff alleges that Delta provided “false and misleading
information ... to the FBI and/or U.S. Attorney's Office for
[this District] with the objective of making him the scapegoat
for [this] high-profile ‘heist.’ ” AC ¶ 17 (footnote omitted);
see also id. ¶ 21.
On October 22, 2019, Delta's agent sent Plaintiff a letter
confirming that he would not need to report for work through
December 27, 2019, and further stated “that this disability
time counted towards [twelve] weeks of time under the
[FMLA].” Id. ¶ 14 (emphasis omitted). Two days later,
on October 24, 2019, the grand jury indicted Plaintiff.
See Indictment at 1. On December 26, 2019, Delta's agent
sent Plaintiff “another letter confirming his approval to
be off work” through January 24, 2020, and providing an
“unknown” estimated return-to-work date. AC ¶ 15. The
second letter also confirmed Plaintiff's eligibility for other
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disability and related benefits from Delta. Id. However, Delta
fired Plaintiff on January 8, 2020. Id. ¶ 35.
Plaintiff initiated this action in Kings County Supreme Court
on January 10, 2024. See ECF No. 1-2 at 3–4 (Summons with
Notice). Delta removed the case to this Court on February
12, 2024, properly invoking this Court's diversity jurisdiction.
See ECF No. 1 ¶¶ 6–8 (Notice of Removal). I directed Plaintiff
to file his complaint because he had commenced this action
in state court by serving a summons with notice only, as
permitted under New York law. See Feb. 14, 2024, Text Order.
Plaintiff filed his first complaint on February 28, 2024. See
ECF No. 5. Delta then filed a pre-motion conference letter
in anticipation of filing a motion to dismiss, see ECF No.
7, which Plaintiff opposed, see ECF No. 8. In his response,
Plaintiff also sought leave to amend the complaint, see id. at
3, and the Court informed him that he could amend as of right
under Rule 15(a)(1). See Mar. 26, 2024, Text Order. On April
9, 2024, Plaintiff filed the AC. See ECF No. 11. On May 9,
2024, Delta moved to dismiss the AC, see ECF No. 16, which
Plaintiff opposed on June 10, 2024, see ECF No. 17. Delta
filed its Reply on June 24, 2024. See ECF No. 18.
LEGAL STANDARD
“To survive a motion to dismiss under Rule 12(b)(6), the
complaint must plead ‘enough facts to state a claim to relief
that is plausible on its face.’ ” Johnson v. Mount Sinai Hosp.
Grp., No. 23-466, 2024 WL 3289475, at *1 (2d Cir. July 3,
2024) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all
allegations contained in the complaint are assumed to be true,
this tenet is “inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678.
In addition to requiring sufficient factual matter to state
a plausible claim for relief, pursuant to Rule 8 of the
Federal Rules of Civil Procedure, a plaintiff must provide
a short, plain statement of claim against the defendant so
that it has adequate notice of the claims against it. Id. at
677–78 (Rule 8 “demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.”). A pleading
that only “tenders naked assertions devoid of further
factual enhancement” will not suffice. Id. To satisfy this
standard, the complaint must, at a minimum “disclose
sufficient information to permit the defendant to have a fair
understanding of what the plaintiff is complaining about and
to know whether there is a legal basis for recovery.” Kittay v.
Kornstein, 230 F.3d 531, 541 (2d Cir. 2000).
DISCUSSION
*3 The Court begins its analysis with Plaintiff's sole federal
claim under the FMLA and proceeds to the state law claims.
I. FMLA
Plaintiff alleges that Delta acted unlawfully when it fired
him while he was on FMLA leave. AC ¶ 36. Although not
articulated in the AC, Plaintiff states in his Opposition that he
is asserting both an FMLA interference and FMLA retaliation
claim. Opp. at 11–12. Delta now argues that the FMLA claim
must be dismissed because it is (1) barred by the statute of
limitations and (2) implausible. I agree with both points.
A. Statute of Limitations
Delta argues that Plaintiff's claim is time-barred. See Mot. at
12–13. Under the FMLA, “an action may be brought ... not
later than 2 years after the date of the last event constituting
the alleged violation for which the action is brought.” 29
U.S.C. § 2617(c)(1). Delta says that Plaintiff's last alleged
relevant event was his firing on January 8, 2020, meaning that
this claim, which was brought for the first time in the AC on
April 9, 2024, is untimely. See Mot. at 13.
Plaintiff does not dispute that the statute of limitations began
to run with his firing. Nor does he dispute that the relevant
date for measuring the timeliness of the FMLA claim is the
filing of the AC, as only state law claims appeared in the initial
complaint. See ECF No. 5 ¶¶ 23–38. 4 Instead, he asserts
that the statute of limitations for the FMLA claim is three
years in this case. Opp. at 12. Undoubtedly, in an FMLA
case “brought for a willful violation,” an extended three-
year statute of limitations is triggered. 29 U.S.C. § 2617(c)
(2). However, Plaintiff's argument is puzzling here because
even assuming that this lengthier bar applies, the claim would
remain untimely, as Plaintiff was fired on January 8, 2020, but
did not even initiate this case until 2024.
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*4 In any event, I need not assume as much because the
three-year bar does not apply here. As the Supreme Court
has made clear, there is a “significant distinction between
ordinary violations and willful violations,” McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 132 (1988), and as
Delta rightly observes, Plaintiff points to no facts, in
the AC or elsewhere, indicative of willfulness, see Reply
at 6. All he says is that “Delta knew and/or recklessly
disregarded whether its conduct violated the FMLA because
it terminated ... Plaintiff while on extended leave that was
afforded to [him].” Opp. at 12. The Court does not accept that
legal conclusion as true. See Offor v. Mercy Med. Ctr., 676 F.
App'x 51, 53–54 (2d Cir. 2017) (concluding that the plaintiff
failed to plausibly allege a willful FMLA violation where
“[n]either the complaint nor her briefing explain[ed] why any
alleged violation ... would have been ‘willful’ ”). The mere
fact that Delta terminated Plaintiff while he was on leave did
not in and of itself constitute willful conduct. See Geromanos
v. Columbia Univ., 322 F. Supp. 2d 420, 428 (S.D.N.Y. 2004)
(“The law is clear that an employee may be terminated while
on medical leave, as long as the taking of the FMLA leave was
not the cause for the termination.”). On the contrary, by the
time Delta fired Plaintiff, he had been arrested and indicted
by a federal grand jury for crimes directly related to his role at
Delta. On those facts, Plaintiff does not plausibly allege that
Delta either knew it was violating the FMLA or recklessly
disregarded its obligations thereunder by firing him, see
Porter v. N.Y. Univ. Sch. of L., 392 F.3d 530, 531–32 (2d Cir.
2004), especially after it had already granted him months of
leave, since the “FMLA is not a shield to protect employees
from legitimate disciplinary action by their employers if their
performance is lacking in some manner unrelated to their
FMLA leave.” See Mejia v. Roma Cleaning, Inc., 751 F. App'x
134, 137 (2d Cir. 2018) (finding no willfulness under the
FMLA where the plaintiff, who had been fired while on leave,
inter alia, “admitted it was possible she was tardy or absent on
various days” unrelated to that leave). Accordingly, the three-
year statute of limitations does not apply.
Plaintiff also argues that the FMLA claim is timely because
“per Governor Cuomo's Executive's [sic] Order, causes of
action that arose under New York law that accrued before
the tolled period—between March 2020 and November 2020
—do not count toward[ ] the statute of limitations period.”
Opp. at 12. Oddly, Plaintiff does not cite to the relevant law,
but he is referring to Executive Order 202.8, which together
with several additional executive orders, created a 228-day
tolling period from March 20, 2020, to November 3, 2020.
See generally Doe v. State Univ. of N.Y. Purchase Coll.,
617 F. Supp. 3d 195, 207 (S.D.N.Y. 2022). Unfortunately
for Plaintiff, his own description of the executive orders
—as applicable to “causes of action that arose under New
York law”—demonstrates why they are not relevant here.
As mentioned, the FMLA provides its own statute of
limitations. 5 And “courts ... have consistently held that the
[New York] Executive Orders do not purport to toll, nor could
they, the time periods established by federal law.” See Brain v.
Execu-Search Grp., LLC, No. 22-cv-8219, 2024 WL 838085,
at *6 (S.D.N.Y. Feb. 28, 2024) (collecting cases). Therefore,
no tolling is applicable. Again, it is worth noting that such
tolling would also have been inconsequential here. Even in
Plaintiff's best scenario in which the three-year period applied
and he could fully toll 228 days, the pleading of the FMLA
claim (or even the initiation of this case) would still have come
after the expiration of the limitations period, which started
to run on January 8, 2020. The Court therefore dismisses the
FMLA claim with prejudice.
B. Plausibility
Notwithstanding the expired statute of limitations, the Court
would also dismiss an FMLA interference or retaliation claim
on the merits. “[T]o prevail on a claim of interference with
h[is] FMLA rights, a plaintiff must establish: 1) that [ ]he is
an eligible employee under the FMLA; 2) that the defendant
is an employer as defined by the FMLA; 3) that [ ]he was
entitled to take leave under the FMLA; 4) that [ ]he gave
notice to the defendant of h[is] intention to take leave; and 5)
that [ ]he was denied benefits to which [ ]he was entitled under
the FMLA.” Graziadio v. Culinary Inst. of Am., 817 F.3d
415, 424 (2d Cir. 2016). Delta attacks this claim on various
bases 6 , see Mot. at 14–15, but the most relevant here is that
Plaintiff fails to plausibly plead that the leave had anything to
do with his firing, which implicates the fifth element of the
claim. See id. That argument is persuasive. Plaintiff responds
that his “FMLA-protected leave was active at the time of his
suspension and ensuing termination,” see Opp. at 12, but even
if true, that misapprehends the law. 7 Again, “[t]he FMLA is
not a shield to protect employees from legitimate disciplinary
action by their employers.” Mejia, 751 F. App'x at 137. Thus,
as already discussed, “[t]he fact that plaintiff was notified of
h[is] termination during h[is] leave,” standing alone, “does
not constitute interference.” Geromanos, 322 F. Supp. 2d at
428. Indeed, “it is well-settled that an employer is not liable
for interfering with an employee's leave when the employee
would have been terminated regardless of leave.” Marshall,
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2024 WL 665200, at *7. Accordingly, the Court must reject
Plaintiff's strict liability construction of the FMLA, and absent
any other indication 8 that Delta “attempted to discourage
or otherwise restrain [Plaintiff] from exercising h[is] rights
under the FMLA,” Passante v. Cambium Learning Grp., No.
23-cv-4060, 2024 WL 4171026, at *15 (E.D.N.Y. Sept. 12,
2024), his interference claim is dismissed.
*5 It remains unclear how Plaintiff is attempting to assert
a retaliation theory on the pled facts. See Opp. at 12
(discussing only the interference standard). However, to
the extent Plaintiff's claim can be construed as an FMLA
retaliation claim, it also fails. See Woods v. START Treatment
& Recovery Ctrs., Inc., 864 F.3d 158, 167 (2d Cir. 2017)
(explaining that “terminations for exercising FMLA rights
by, for example, taking legitimate FMLA leave” give rise
to “FMLA retaliation claims”). “To establish a prima facie
case of FMLA retaliation, Plaintiff must establish that: (1)
[ ]he exercised rights protected under the FMLA; (2) [ ]he
was qualified for h[is] position; (3) [ ]he suffered an adverse
employment action; and (4) the adverse employment action
occurred under circumstances giving rise to an inference of
retaliatory intent,” Henderson v. GEICO, No. 22-cv-03513,
2024 WL 4694011, at *6 (E.D.N.Y. Nov. 6, 2024), under
which “but-for” causation is not required, see Woods, 864 F.3d
at 169. Rather, an employee must adequately plead that the
FMLA leave was a “motivating factor” behind the retaliatory
conduct. Passante, 2024 WL 4171026, at *14.
As mentioned, despite his invocation of a retaliation theory,
Plaintiff does not address any of these elements. See Opp. at
11–12. And even though his burden in establishing a prima
facie case is “minimal,” Henderson, 2024 WL 4694011, at
*14, he has failed to adequately plead it under the unique
circumstances of this case. See Geromanos, 322 F. Supp. 2d
at 433–34 (notwithstanding counsel's framing of a wrongful
discharge claim as interference-based, analyzing it as a
retaliation claim and dismissing it on causation grounds).
As it concerns the fourth element of the claim, any theory
that his FMLA leave was a motivating factor in his firing
is implausible against the backdrop in which he had been
arrested by the FBI and indicted by a federal grand jury
for crimes directly related to his role at Delta. See Crosby
v. Stew Leonard's Yonkers LLC, 695 F. Supp. 3d 551, 575–
76 (S.D.N.Y. 2023) (granting motion to dismiss FMLA
retaliation claim due to lack of causation between taking
FMLA leave and termination). Therefore, any retaliation
claim is also dismissed.
II. Breach of Contract
Delta moves to dismiss Plaintiff's breach of contract claim,
contending that Plaintiff has failed to plead the existence
of an enforceable contract. See Mot. at 11–12. To state a
claim for a breach of contract, “a plaintiff usually must allege
that: (1) a contract exists[;] ... (2) plaintiff performed in
accordance with the contract[;] ... (3) defendant breached its
contractual obligations[;] and (4) defendant's breach resulted
in damages.” 34-06 73, LLC v. Seneca Ins. Co., 198 N.E.3d
1282, 1287 (N.Y. 2022); accord Johnson v. Nextel Commc'ns,
Inc., 660 F.3d 131, 142 (2d Cir. 2011). “Critically, a complaint
fails to sufficiently plead the existence of a contract if it
does not provide factual allegations regarding, inter alia, the
formation of the contract, the date it took place, and the
contract's major terms.” Ebomwonyi v. Sea Shipping Line, 473
F. Supp. 3d 338, 347 (S.D.N.Y. 2020), aff'd, No. 20-3344,
2022 WL 274507 (2d Cir. Jan. 31, 2022). And “[c]onclusory
allegations that a contract existed or that it was breached do
not suffice.” Id. Here, Plaintiff claims that “Delta wrongfully
suspended [him] while he was out on approved medical
leave and thereafter unlawfully terminated him in violation
of Delta's policies and New York law” and that “[i]n doing
so, upon information and belief, Delta breached the terms of
these policies and deprived [him] of his annual salary/wages
and accompanying benefits (e.g., retirement credits/ benefits
[sic]) for the years 2019-2023.” AC ¶¶ 28–29.
Delta is correct. The AC plainly fails to identify a contractual
obligation, much less a breached provision thereof. The
closest Plaintiff comes is by asserting the following: “Upon
information and belief, given Plaintiff's senior employment
status with the Delta [sic] at the, [sic] his approved
medical leave status, and, [sic] the then existing [sic] work-
related policies in effect between Delta and its ground
employees, Plaintiff's employment could not be terminated
‘at will.’ ” Id. ¶ 27. But that “vague” string of alleged
facts does not plausibly suggest the existence of a binding
employment agreement. See Ebomwonyi, 473 F. Supp. 3d at
348 (dismissing breach of contract claim where the plaintiff
alleged a “promise[ ]” to be paid but failed to plead any terms
of the alleged agreement). Plaintiff's treatment of Delta's
serious argument is cursory at best: he merely pastes the
three above-quoted paragraphs from the AC into his brief and,
relying on generalized rules of pleading, says that suffices to
plead the existence of a contract. See Opp. at 10. He errs badly
on this point. For Plaintiff's claim to survive this motion, he
must still “nudge h[is] claim across the line from conceivable
to plausible” by “rais[ing] a reasonable expectation that
discovery will reveal evidence of the wrongdoing alleged.”
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Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 323 (2d Cir.
2021). The mere assertion that an employment agreement
existed, supported only by unconnected facts about Plaintiff's
employment and conjecture, does not get him across this
threshold.
*6 Indeed, in the employment context, “New York courts
continue to hold that an employee is presumed to be hired
at-will, meaning that the employment can be terminated by
either party, at any time, for any or no reason whatsoever, so
long as the termination is not effected for a discriminatory
reason.” Hunter v. Kaufman Enters., Inc., No. 09-cv-5540,
2011 WL 3555809, at *3 (E.D.N.Y. Aug. 8, 2011) (collecting
cases). 9 That presumption may be rebutted, but only where
“the employer made its employee aware of an express written
policy limiting the right of discharge and the employee
detrimentally relied on that policy.” Id. Here, Plaintiff has not
even tried to achieve the “difficult” task of pleading such an
implied contract. Id. (quoting Sabetay v. Sterling Drug, Inc.,
506 N.E.2d 919, 922 (N.Y. 1987)); see also Stinnett v. Delta
Air Lines, Inc., No. 18-cv-2704, 2019 WL 1493224, at *11
(E.D.N.Y. Mar. 31, 2019) (dismissing with prejudice breach
of contract claim against Delta due to the plaintiff's failure to
“rebut the presumption of at-will employment”), aff'd, 803 F.
App'x 505 (2d Cir. 2020).
To the extent the disparate facts referred to by Plaintiff may
nevertheless be considered an effort to plead an implied
contract, it is unavailing. First, although he mentions his
“senior” status, he neither alleges nor argues that that took
his employment out of the presumptively at-will domain.
See Harrison v. Indosuez, 6 F. Supp. 2d 224, 231–32
(S.D.N.Y. 1998) (“While plaintiff may have believed that
her agreement entitled her to a position until age 65, there
is nothing contained in the agreement to indicate any term
of definite duration.”); cf. Gorrill v. Icelandair/Flugleidir,
761 F.2d 847, 852 (2d Cir. 1985) (implied contract where
employees “received repeated oral and written assurances
from the employer that the Operations Manual,” which
expressly linked job reductions to seniority, “contained the
terms and conditions of employment and was controlling”).
The same is true of the existence of ordinary company
policies (none of which are pled). As the New York Court of
Appeals has explained: “Routinely issued employee manuals,
handbooks and policy statements should not lightly be
converted into binding employment agreements .... It would
subject employers who have developed written policies to
liability for breach ... upon the mere allegation of reliance
on a particular provision.” Lobosco v. N.Y. Tel. Co./NYNEX,
751 N.E.2d 462, 465 (N.Y. 2001). Next, the fact that Plaintiff
was on medical leave did not guarantee him perpetual
employment, as receiving “the benefits of ... employment”
does not “constitute a limitation on [D]efendant's right to
discharge [Plaintiff] at will.” Sabatowski v. Fisher Price Toys,
763 F. Supp. 705, 712 (W.D.N.Y. 1991). Finally, even if
Delta somehow breached one of its own policies by firing
Plaintiff, “a failure by an employer to follow its internal
policies cannot form the basis of a breach of contract claim,
unless, inter alia, mutual assent to enter into an implied-in-
fact contract is shown.” Hunter, 2011 WL 3555809, at *4.
But as in Hunter, “Plaintiff has failed to identify what specific
policies were mutually assented to by the Defendant ...
[and] which were then not followed by the Defendant.” Id.
Accordingly, Plaintiff's breach of contract claim is dismissed
with prejudice.
III. Malicious Prosecution
“Under New York law, a malicious-prosecution claim
requires a plaintiff to show (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 the defendant's actions.” McCullough
v. Graves, No. 24-506, 2024 WL 4615821, at *3 (2d Cir.
Oct. 30, 2024). “Because accusers must be allowed room
for benign misjudgments, the New York Court of Appeals
has held that the law places a heavy burden on malicious
prosecution plaintiffs.” Rothstein v. Carriere, 373 F.3d 275,
282 (2d Cir. 2004). Delta argues that Plaintiff has failed to
adequately plead the first and third elements of the cause of
action. See Mot. at 15–16. I agree on both counts.
*7 As it relates to the first element, commencement, “New
York law imposes a presumption that a prosecutor exercises
his own independent judgment in deciding to prosecute a
criminal defendant.” Gilman v. Marsh & McLennan Cos., 868
F. Supp. 2d 118, 128 (S.D.N.Y. 2012). Thus, as a general
matter
a civilian defendant who merely
furnishes information to law
enforcement authorities who are then
free to exercise their own independent
judgment as to whether an arrest will
be made and criminal charges filed
will not be held liable for malicious
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prosecution. The defendant must have
affirmatively induced the officer to act,
such as taking an active part in the
arrest and procuring it to be made or
showing active, officious and undue
zeal, to the point where the officer is
not acting of his own volition.
Saunders v. Cavada, No. 19-cv-3279, 2024 WL 4284655,
at *4 (E.D.N.Y. Sept. 25, 2024); accord Shioya v. Hanah
Country Inn Mgmt. Corp., 172 N.Y.S.3d 761, 767 (N.Y. App.
Div. 2022). Delta argues that Plaintiff fails to adequately
plead the necessary affirmative inducement. See Mot. at
15–16. 10 Plaintiff's AC contains many allegations about
Delta's intent and participation in his prosecution. See, e.g.,
AC ¶ 39 (“Defendant and/or its agents deliberately and
maliciously initiated and materially assisted in the criminal
prosecution ... for the improper purpose and/or objective
of creating a scapegoat for Defendant's embarrassing and
well-publicized mishandling of the ... transport ....”); id.
¶ 40 (“Defendant failed to take reasonable steps to stop
the prosecution of ... Plaintiff and, instead, maliciously and
deliberately provided false and/or incomplete information ...
to induce prosecution ....”). However, I agree with Delta
that Plaintiff's claims are conclusory because of the absence
of factual matter suggestive of anything more than mere
assistance to law enforcement, which is insufficient to trigger
liability. See Delcine, 2011 WL 666347, at *4. And to
the extent he alleges that Delta was motivated to induce
the prosecution to shift blame away from itself, without
more, courts reject such claims as speculative. See Gilman,
868 F. Supp 2d at 128 (“Plaintiffs allege that Defendants
‘encouraged,’ ‘convinced,’ and ‘colluded with’ the Attorney
General by ‘offering up [the plaintiffs] as targets .... These
conclusory allegations are not sufficient to state a plausible
claim for relief under ...Twombly and Iqbal.”). 11 This defect
alone dooms the malicious prosecution claim.
Plaintiff also has a fundamental problem when it comes to
the absence of probable cause, the third element of his claim.
As the Second Circuit recently explained in McCullough,
“[u]nder New York law, indictment 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.” 2024 WL 4615821, at *3 (emphasis
in original). And like in that case, it is “undisputed” here
that Plaintiff was indicted by a grand jury “on the charges
underlying this claim.” Id. Because “[t]he existence of
probable cause is an absolute defense to a cause of action
for malicious prosecution,” Plaintiff's claim should fail. See
Maron v. Cnty. of Albany, 166 F. App'x 540, 541 (2d Cir.
2006).
*8 Nevertheless, in Opposition, Plaintiff makes the point
that “a party may still rebut the presumption” of probable
cause created by the Indictment. See Opp. at 14 (emphasis
omitted). That is fair enough as an abstract matter, but he
does not point to a single fact in the AC demonstrating the
application of the principle. See id. at 14–15; see also Reply
at 9. To be sure, Plaintiff says he was “an innocent man,” AC
¶ 39, but that does not help him because he does not connect
it to the probable cause inquiry, which asks whether the “facts
and circumstances ... would lead a reasonably prudent person
to believe the plaintiff guilty,” Kee v. City of New York, 12
F.4th 150, 166 (2d Cir. 2021). 12 Plaintiff also references
his ultimate acquittal, see AC ¶ 42, but that is similarly
irrelevant, see Warren v. Byrne, 699 F.2d 95, 98 (2d Cir.
1983) (“Malicious prosecution is based upon a defendant's
alleged lack of probable cause to believe the plaintiff guilty
of the crime for which he was prosecuted; and ‘[f]avorable
termination has no bearing whatever in and of itself on want
of probable cause ....’ ”) (brackets retained) (quoting Kezer
v. Dwelle-Kaiser Co., 225 N.Y.S. 722, 729 (N.Y. App. Div.
1927)).
In addition, Plaintiff is insensitive to the particular context
of this case, in which he was indicted by a grand jury.
Thus, he is “required to rebut th[e] presumption by proving
fraud, perjury, suppression of evidence or other misconduct
in the grand jury.” Rothstein, 373 F.3d at 283 (emphasis
added). But like in Rothstein, “[h]is failure even to attempt to
make that showing requires the dismissal of his claim.” Id.;
accord Alvarez v. City of New York, No. 22-cv-8689, 2024
WL 1140659, at *5 (S.D.N.Y. Mar. 15, 2024) (dismissing
malicious prosecution claim based on the presumption of
probable cause created by a grand jury indictment where
the complaint, inter alia, “d[id] not address the grand jury
proceeding at all”). In conclusion, Plaintiff fails to “rebut[ ]
the presumption of probable cause that arises from the
indictment.” McCullough, 2024 WL 4615821, at *3. And
his effort to do so by “mere conjecture and surmise that his
indictment was procured as a result of conduct undertaken
by [Delta] in bad faith” is unavailing. Id. (affirming grant
of motion to dismiss a malicious prosecution claim). His
malicious prosecution claim is therefore dismissed with
prejudice.
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IV. Abuse of Process
To state a claim for abuse of process under state law, “a
plaintiff must allege that the defendant (1) employed regularly
issued legal process to compel performance or forbearance
of some act, (2) with intent to do harm without excuse or
justification, and (3) in order to obtain a collateral objective
that is outside the legitimate ends of the process.” Zappin
v. Cooper, No. 23-165, 2024 WL 3084015, at *2 (2d Cir.
June 21, 2024). The third element, which forms the “crux”
of this claim, Richardson v. N.Y.C. Health & Hosps. Corp.,
No. 05-cv-6278, 2009 WL 804096, at *16 (S.D.N.Y. Mar. 25,
2009), requires that “the defendants had an improper purpose
in instigating the action,” as opposed to merely “a malicious
motive,” Savino v. City of New York, 331 F.3d 63, 77 (2d
Cir. 2003) (emphasis in original). 13 Delta's sole, narrowly
focused argument 14 is that Plaintiff has failed to plausibly
plead this element. See Mot. at 17. I agree.
*9 Here, Plaintiff alleges that Delta had the “the improper
objective of creating a scapegoat for [its] embarrassing and
well-publicized mishandling of the secure transport” and
“failed to take reasonable steps to stop the prosecution ...
and, instead, maliciously and deliberately provided false
and/or incomplete information ... to induce the continued
prosecution.” AC ¶¶ 46–47. But even though he uses the word
“objective,” his allegations go to Delta's motive. On this point,
Delta rightly points to Savino, in which the Second Circuit
found that the plaintiff's allegation that an investigation of
him “was solely motivated to seek vindication for the [City's]
great political embarrassment and humiliation for allowing
plaintiff to be the highest paid [city] employee” went just to
the defendants’ motive and thus fell short of creating liability.
331 F.3d at 77–78 (brackets in original). Similarly, the
Second Circuit recently held that allegations, like those here,
“suggest[ing] only that [the defendant] ‘acted maliciously’
in instigating the prosecution” were “insufficient” to state
a claim. Zappin, 2024 WL 3084015, at *2. In Opposition,
Plaintiff repeats the familiar mantra that his allegations “are
presumed to be true (not speculation),” but here, too, asserting
that does not immunize the claim from pleading requirements.
See Mot. at 15. I therefore join a long line of courts that
have found “that allegations,” like those advanced here, “that
defendants pursued a prosecution in order to ‘cover up’
their own misconduct or protect other bad actors do[ ] not
satisfy the collateral objective requirement.” See LoPorto v.
Cnty. of Rensselaer, No. 15-cv-0866, 2018 WL 4565768,
at *2, *15 (N.D.N.Y. Sept. 24, 2018) (collecting cases and
rejecting this type of claim in which the plaintiff alleged
that a defendant tried to “scapegoat” him); see also Folk v.
City of New York, 243 F. Supp. 3d 363, 375 (E.D.N.Y. 2017)
(dismissing abuse of process claim for failure to plausibly
plead a collateral objective where the plaintiff pled, inter alia,
that the defendants were “covering up the fact that they did
not want to treat her as a victim of domestic violence”).
In any event, assuming arguendo that Plaintiff's “creating
a scapegoat” motive is an actionable collateral objective,
for the reasons already explained in the dismissal of the
malicious prosecution claim, I would still agree with Delta
that Plaintiff's assertion that this was in fact Delta's objective
is too speculative to survive. Cf. Gilman, 868 F. Supp. 2d at
133 (“This speculation about what Defendants communicated
to the Attorney General behind closed doors is insufficient
to state a plausible claim for abuse of process just as it
was insufficient to state a plausible claim for malicious
prosecution.”). The abuse of process claim is therefore
dismissed with prejudice.
V. Leave to Amend
In the final sentence of his Opposition, Plaintiff seeks leave
to amend: “Plaintiff requests and should be afforded leave to
amend to the extent the [C]ourt determines any of his claims
are deficiently ple[d].” Opp. at 16. As an initial matter, that
request does not entitle Plaintiff to leave to amend. See In
re Lehman Bros. Mortg.-Backed Sec. Litig., 650 F.3d 167,
188 (2d Cir. 2011) (finding no abuse of discretion where the
“plaintiffs requested leave to amend without specifying what
additional facts, if any, they might assert in a new pleading”);
Singh v. Shikan, No. 14-cv-5450, 2015 WL 4111344, at
*1 (S.D.N.Y. June 25, 2015) (describing denial of leave to
amend based on a “one[-]sentence, boilerplate request”). And
although the Second Circuit “strongly favors liberal grant
of an opportunity to replead after dismissal of a complaint
under Rule 12(b)(6),” in this instance, the Court declines
to grant Plaintiff further opportunity to further amend the
AC. Noto v. 22nd Century Grp., Inc., 35 F.4th 95, 107 (2d
Cir. 2022) (affirming denial of leave to amend). “A court
should freely give leave when justice so requires, but it
may, in its discretion, deny leave to amend for good reason,
including futility, bad faith, undue delay, or undue prejudice
to the opposing party.” MSP Recovery Claims, Series LLC v.
Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023) (affirming
denial of leave to amend). “Futility is a determination, as a
matter of law, that proposed amendments would fail to cure
prior deficiencies or to state a claim under Rule 12(b)(6).”
In re Tribune Co. Fraudulent Conv. Litig., 10 F.4th 147, 175
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(2d Cir. 2021). Amendment is futile where the issues with the
causes of action are “substantive.” Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000).
The Court finds that repleading any of the four causes of
action would be futile. With respect to the FMLA cause of
action, “[c]laims barred by an applicable statute of limitations
are futile.” Jones v. City of New York, 571 F. Supp. 3d 118,
126 (S.D.N.Y. 2021). Further, on the merits, I see no way for
Plaintiff to try to cure the defect with the interference claim,
since the basis of Plaintiff's claim—that any disciplinary
action against him while he was on leave violated the FMLA
—is legally unsound. See Bos. Ret. Sys. v. Telefonaktiebolaget
LM Ericsson, No. 23-940, 2024 WL 4023842, at *6 (2d Cir.
Sept. 3, 2024) (leave to amend is futile where the plaintiff
cannot “cure the legal defects in the claims”). Similarly, for
his retaliation claim (assuming that is even a viable framing),
Plaintiff will be unable to plead around the Indictment,
and thus, also be unable to cure the fundamental causation
problem with such a claim. Plus, given that Plaintiff did not
even address the merits of a retaliation theory in his brief, he
similarly identified “almost no facts” to support it, leaving
me with “no reason to believe that giving Plaintiff another
opportunity to amend would be anything other than futile.”
See Williams v. Victoria's Secret, No. 15-cv-4715, 2017 WL
1162908, at *11 (S.D.N.Y. Mar. 28, 2017).
*10 In the same way, leave to amend the state law claims
for breach of contract, malicious prosecution, and abuse of
process would be futile. Here, the Court considers it important
that the bases for dismissal of these claims identified in
this Order were all previously and precisely identified by
Delta in its pre-motion letter, see ECF No. 7, after which
Plaintiff amended. Of course, the mere fact of amendment
after seeing the pre-motion letter does not mean that Plaintiff
“forfeit[ed] the opportunity to replead.” See Loreley Fin.
(Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160,
190 (2d Cir. 2015). Nevertheless, this history informs (and
ultimately helps to confirm) the Court's futility analysis given
the simplicity and yet fundamental nature of the pleading
defects that remain present in these three claims. Cf. id.
at 191 (observing that in a “case combin[ing] a complex
commercial reality with a long, multi-prong complaint[,] ....
pleading defects may not only be latent, and easily missed
or misperceived without full briefing and judicial resolution;
they may also be borderline, and hence subject to reasonable
dispute”).
For the breach of contract claim, Plaintiff has still not pled
the existence of a contract, and despite his multifront effort
to plead an implied contract, there remains no indication
that he can overcome the “heavy burden ... to take his
employment relationship out of the ‘at-will’ realm.” Hunter,
2011 WL 3555809, at *4 (denying leave to amend). He faces
a similar “heavy burden,” Rothstein, 373 F.3d at 282, with
his malicious prosecution claim, for which there are two
independently fatal flaws as to the elements of initiation/
continuation and the absence of probable cause. Particularly
with respect to the latter element, despite demonstrating a
clear understanding in Opposition of the difficult task of
rebutting the presumption of probable cause created by the
Indictment, Plaintiff neither identified nor even argued that
there exist or may exist facts to support such a claim, instead
asking the Court merely to “indulg[e] all available inferences
of the absence of probable cause.” Opp. at 15. But the
Court can indulge inferences based only on facts, not legal
assertions. And because the Indictment establishing probable
cause will not disappear if he is given the opportunity to
replead, Plaintiff appears to lack a viable path here, too. See
Lavrick v. Suffolk Cnty., No. 20-cv-609, 2021 WL 2856722, at
*7 (E.D.N.Y. July 8, 2021) (denying leave to amend malicious
prosecution claim after finding probable cause). I similarly
see no basis for Plaintiff to properly plead the collateral
objective needed for his abuse of process claim, especially
given his failure to address this issue in Opposition and the
AC's exclusive focus on Delta's motive. See Zappin, 2024 WL
3084015, at *3 (affirming denial of leave to amend abuse of
process claim on futility grounds where the plaintiff “fail[ed]
to adequately plead anything more than an improper motive”).
Thus, leave to amend is denied.
CONCLUSION
For the foregoing reasons, the AC is dismissed with prejudice
and without leave to amend.
SO ORDERED.
All Citations
Slip Copy, 2024 WL 5007423
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Footnotes
1 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases,
footnotes, and citations are omitted.
2 Footnote 2 of the AC cites to an online article. See Associated Press, Delta Baggage Handler Accused of
Stealing $250,000 in Cash at JFK International Airport, USA Today, https://perma.cc/SS7J-XAZK (Sept. 27,
2019, 12:26 P.M.). In this posture, the Court may consider this article, which is “incorporated in [the AC] by
reference.” D'Cunha v. Northwell Health Sys., No. 23-476, 2023 WL 7986441, at *2 (2d Cir. Nov. 17, 2023);
see Doe #1 v. Syracuse Univ., 468 F. Supp. 3d 489, 503 n.11 (N.D.N.Y. 2020) (on a motion to dismiss,
considering videos linked to in the complaint); Frascatore v. Blake, 344 F. Supp. 3d 481, 489 (S.D.N.Y. 2018)
(considering newspaper article quoted and cited in complaint). In addition, the Court takes judicial notice of
the Indictment, which Plaintiff also refers to, AC ¶ 1, and is a matter of public record. See, e.g., Johnson v.
City of New York, No. 23-cv-3018, 2024 WL 3520445, at *2 & nn.10–11 (S.D.N.Y. July 23, 2024) (doing the
same). In this Order, citations to footnote 2 of the AC incorporate the linked article cited therein.
3 The Court refers to the pages assigned by the Electronic Case Files system (“ECF”).
4 Although unchallenged, the Court notes that Delta's analysis on the latter point is correct. Under Rule 15(c)(1)
(B), “[a]n amendment to a pleading relates back to the date of the original pleading when ... the amendment
asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted
to be set out—in the original pleading.” “In making this [relation-back] determination, ‘the pertinent inquiry ...
is whether the original complaint gave the defendant fair notice of the newly alleged claims.’ ” Higgins v.
NYP Holdings, Inc., 836 F. Supp. 2d 182, 192 (S.D.N.Y. 2011) (quoting Fama v. Comm'r of Corr. Servs.,
235 F.3d 804, 815 (2d Cir. 2000)). Here, neither the summons with notice filed in state court (see generally
Lutzker v. Novo Nordisk Pharms., Inc., No. 07-cv-3272, 2008 WL 905040, at *4 (E.D.N.Y. Apr. 2, 2008))
nor the initial complaint gave Delta fair notice of an FMLA claim. Although the initial complaint, drafted by
counsel in federal court, contained factual allegations about Plaintiff being out on leave, it did not suggest
“discriminatory actions in response to plaintiff's absences and disability leave” or other conduct actionable
under the FMLA. Cf. Kamtaprassad v. Chase Manhattan Corp., No. 00-cv-8834, 2001 WL 1662071, at *5
(S.D.N.Y. Dec. 28, 2001). Rather, the thrust of the initial complaint, like the AC, was that Delta sought to
frame Plaintiff as the “fall guy” or “scapegoat” for the missing cash. See ECF No. 5 ¶¶ 16, 22; AC ¶¶ 18,
25. Accordingly, the FMLA claim does not relate back to the initial complaint. See Phillips v. LIRR, No. 13-
cv-7317, 2019 WL 1757176, at *8 (E.D.N.Y. Mar. 4, 2019) (finding that FMLA claim did not relate back where
“[t]he FMLA was not mentioned in Plaintiff's prior filings,” “[P]laintiff did not allege that he had taken a[n] FMLA
leave or that he was discriminated against or retaliated against for doing so,” and “the crux of Plaintiff's [prior]
claims ... was that he was discriminated against on the basis of race”), report and recommendation adopted,
2019 WL 1758079 (E.D.N.Y. Mar. 25, 2019), aff'd, 832 F. App'x 99 (2d Cir. 2021). That being said, this point
is ultimately academic. As discussed in this Section, even if the FMLA claim did relate back to the filing of
the initial complaint on February 28, 2024 (or the commencement of the state court action on January 10,
2024), it would not change the Court's timeliness analysis.
5 This case is therefore also distinct from one in which the federal statute borrows its statute of limitations from
state law. See, e.g., Doe, 617 F. Supp. 3d at 207–08 (applying the executive orders to a federal Title IX claim,
which borrows from state law).
6 Based on the AC, and drawing all inferences in Plaintiff's favor, the Court cannot resolve in this posture when
Plaintiff's FMLA leave began to run and therefore, whether he had used up all his leave benefits under the
FMLA at the point when he was fired and whether he was capable of returning to his job at the end of the
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FMLA leave. Compare AC ¶ 13 (alleging that approved “medical leave” began on September 25, 2019), with
id. ¶¶ 14, 34 (suggesting that “FMLA leave” began on October 22, 2019).
7 This type of claim appears to be cognizable as an FMLA interference (as opposed to retaliation) claim only
because, construing the allegations in the light most favorable to him, Plaintiff alleges that he was still on
FMLA leave at the time he was fired and with more leave available to him. See AC ¶¶ 15, 35–36. In that
sense, “Plaintiff pleads actual interference with h[is] FMLA entitlements” because he was granted leave but
terminated while allegedly entitled to more leave. See Marshall v. Westchester Med. Ctr. Health Network, No.
22-cv-7990, 2024 WL 665200, at *7 (S.D.N.Y. Feb. 16, 2024) (distinguishing this scenario from instances of
“a retaliation theory in disguise” where “the plaintiff failed to allege she was entitled to any other benefits prior
to her termination or that she intended to take leave after her termination”). I assume that Plaintiff was indeed
on FMLA leave at the time of his termination for the purpose of the interference analysis.
8 In another part of the AC, Plaintiff also alleges that Delta “suspended” him while he was on leave. AC ¶
28. He provides no additional factual support for that allegation, and in any case, even if I were to construe
it as forming the basis of a potential interference claim (something Plaintiff does not do), it would still not
constitute interference because, for the reasons already explained, the FMLA does not shield an employee
from legitimate discipline any more than it shields him from legitimate termination, which is to say, not at all.
9 Delta observes that Plaintiff was, in fact, an at-will employee. See Mot. at 12 n.2. In resolving this motion,
the Court disregards that argument, which goes beyond the pleadings. See Lugo v. City of Troy, 114 F.4th
80, 88 (2d Cir. 2024) (interpreting Fed. R. Civ. P. 12(d)).
10 Plaintiff barely engages with Delta's argument, merely falling back again on general pleading rules. See Opp.
at 13–15. For the reasons already explained, see supra at 12, more is required. Indeed, his own authority,
Delince v. City of New York, No. 10-cv-4323, 2011 WL 666347, at *5 (S.D.N.Y. Feb. 7, 2011), makes clear
that his allegations must still satisfy Twombly and Iqbal to survive a motion to dismiss.
11 Similarly, notwithstanding the summary judgment posture in Saunders, the court there rejected as conclusory
the plaintiff's allegation that the defendants “initiated plaintiff's prosecution in concert to avoid dealing with [a
defendant's] ‘manifest complicity’ ” in an illegal scheme. 2024 WL 4284655, at *4.
12 The same is true with respect to the following allegation tucked into a footnote in the AC: “Upon information
and belief, Delta conducted their own internal investigation which concluded that [Plaintiff] was innocent of
what he was being accused of. Yet, upon information and belief, they [Delta] withheld the findings of this
investigation to achieve their ostensible objective of having Plaintiff be the public scapegoat for their own
negligence.” AC ¶ 20 n.3. That does not render his claim plausible. The Second Circuit has made clear that
“[a] litigant cannot merely plop ‘upon information and belief’ in front of a conclusory allegation and thereby
render it non-conclusory. Those magic words will only make otherwise unsupported claims plausible when
the facts are peculiarly within the possession and control of the defendant or where the belief is based on
factual information that makes the inference of culpability plausible.” Citizens United v. Schneiderman, 882
F.3d 374, 384–85 (2d Cir. 2018). “Nevertheless, even where facts are peculiarly within the possession and
control of the defendant, the plaintiff must allege some factual basis for the allegations made upon information
and belief,” and Plaintiff has not even tried to do so here. See James v. Monroe Cnty., No. 20-cv-7094, 2022
WL 17155831, at *8 (N.D.N.Y. Nov. 22, 2022) (collecting cases).
13 “The collateral objectives typically associated with abuse of criminal process are extortion, blackmail or
retribution; and those objectives are usually characterized by personal animus.” Richardson, 2009 WL
804096, at *16.
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14 For this reason, the Court does not address other potential defects with this claim. For example, it is not clear
to the Court how Delta abused process, like the Indictment, after it was issued, a requirement of this cause of
action. See, e.g., Gilman v. Marsh & McLennan Cos., 654 F. App'x 16, 16–17 (2d Cir. 2016) (“To the extent
[the plaintiffs] allege any ‘abuse,’ it unquestionably came before the process in question (their respective
indictments), not after.” (emphasis in original)).
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Tripathy v. Schneider, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 4504461
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Sanjay TRIPATHY, Plaintiff,
v.
Andrea N. SCHNEIDER Acting Superintendent
Gowanda CF, Gowanda NY, D. Lockwood Acting
Deputy Superintendent of Security, Gowanda CF,
Gowanda NY, M.D. John Morley Deputy Commissioner
and Chief Medical Officer, DOCCS, Albany,
NY, Anthony J. Annucci Acting Commissioner,
DOCCS, Albany, NY, and Andrew M. Cuomo
Governor, New York State, Albany, NY, Defendants.
21-CV-6392-FPG
|
Signed 10/01/2021
Attorneys and Law Firms
Sanjay Tripathy, Beacon, NY, Pro Se.
ORDER
FRANK P. GERACI, JR., District Judge
INTRODUCTION
*1 Pro se Plaintiff Sanjay Tripathy, an inmate incarcerated
at the Fishkill Correctional Facility, filed this action
seeking relief under 42 U.S.C. § 1983, the Americans with
Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”)
regarding events which occurred while he was incarcerated
at the Gowanda Correctional Facility (“Gowanda”). Plaintiff
alleges that Defendants exposed him to risks related to the
COVID-19 pandemic in violation of his rights under the
Eighth and Fourteenth Amendments, as well as the ADA
and RA. In its initial screening order, the Court dismissed
the Complaint pursuant to 28 U.S.C. § 1915A(a) with
leave to amend. ECF No. 2. Plaintiff filed an Amended
Complaint, ECF No. 5, and, for the reasons discussed below,
the conditions of confinement claim will proceed to service
against Defendants Schneider, Lockwood, and Haque, and the
remaining claims are dismissed with prejudice.
DISCUSSION
Under 28 U.S.C. § 1915A(a), this Court is required to
screen the Amended Complaint. Section 1915A “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). 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 the Amended Complaint, the Court must accept
all factual allegations as true and must draw all inferences
in 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) (internal quotation
marks omitted)); 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 (2d Cir. 2004).
II. Section 1983
“To state a valid claim under 42 U.S.C. § 1983, the plaintiff
must allege that the challenged conduct (1) was attributable
to a person acting under color of state law, and (2) deprived
the plaintiff of a right, privilege, or immunity secured by
the Constitution or laws of the United States.” Whalen v.
County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing
Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).
“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
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Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S.
808, 816 (1985)).
*2 To establish liability against a prison official under
§ 1983, a plaintiff must allege that individual's personal
involvement in the alleged constitutional violation; it is not
enough to assert that the defendant is a link in the prison's
chain of command. See McKenna v. Wright, 386 F.3d 432,
437 (2d Cir. 2004). Moreover, the theory of respondeat
superior is not available in a § 1983 action. See Hernandez
v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). “[T]here is no
special rule for supervisory liability. Instead, a plaintiff must
plead and prove that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020) (internal quotation marks omitted).
III. Plaintiff's Allegations 1
The Amended Complaint is substantially similar to the
original Complaint in alleging Defendants’ failure to
implement or enforce safety protocols to control the spread
of COVID-19. Presumed true at this stage of the proceedings,
the amended pleadings state that Gowanda has failed to
implement social distancing, “especially in Plaintiff's [dorm,]
which has been stuffed with 51 inmates.” ECF No. 5 at 11. The
masking mandates are “rarely and sporadically enforced,”
and testing is “[n]on-existent and inadequate.” Id. There
are “[p]oor, non-existent cleaning, quarantine and sanitation
protocols,” and inmates are moved between housing dorms
and prison “without adequate testing.” Id. at 12. Critical care
is delayed by staff members who are untrained in handling
COVID-related emergencies. Id. The facility has “very poor
ventilation” and “high amounts of indoor[ ] smoking.” Id.
Plaintiff, “per CDC[,] has the highest risk of death from
Covid-19, due to severe underlying medical conditions.” Id.
at 11. Plaintiff suffers from a “constant fear of death,” poor
mental health, and increased stress. Id.
Plaintiff spoke about his deteriorating heath and COVID-19
exposure “on many occasions” with Defendant Haque, who
said there was “nothing” he could do and that Plaintiff
“should suffer the consequences” because “he is in jail.”
Id. at 12-13. Plaintiff “engaged with” Defendants Lockwood
and Schneider, who denied his reasonable accommodation
requests and similarly asserted that, as a prisoner, he would
have to suffer the consequences of the pandemic, or “he
should not be in jail.” Id. at 13. All three Defendants
denied relief, discriminated against Plaintiff, and deliberately
refused to take more action to mitigate the excessive risk
of COVID-19 exposure. Id. at 13-14. Many of Plaintiff's
“roommates and dorm-mates were Covid-19 positive and
were showing symptoms of Covid-19 but [were] neither
tested nor segregated.” Id. at 14.
Defendant Morley, the Chief Medical Officer for DOCCS,
ignored Plaintiff's petitions, letters, and grievances, suggested
that Plaintiff seek medical parole, which was unsuccessful,
and “pushed the problem to local medical staff.” Id. He has
also “failed to implement DOCCS[‘] own Covid-19 policies”
and “ignore[d] CDC and health guidelines.” Id. Defendant
DOCCS caused Plaintiff “irreparable harm from excessive
exposure to Covid-19.” Id. Defendant Cuomo failed to protect
Plaintiff “by not mitigating the impact of Covid-19 in prisons”
or reducing “prison overcrowding.” Id. at 14-15.
Plaintiff has severe underlying conditions that place him at
the “highest risk of death” from COVID-19, including stroke,
diabetes, obesity, high blood pressure, respiratory illness,
asthma, allergies, high cholesterol, and low vitamin D, iron,
vitamin B-12 and testosterone. Id. at 17-18. Plaintiff “suffered
increasingly since the onset” of the COVID-19 pandemic
in March 2020, and Defendants’ “lack of” action “directly
impacted his health and well-being.” Id. at 18. Further,
Plaintiff's exposure to “constant and unprecedented” second-
hand tobacco smoke during his incarceration increases his
risk of death from COVID-19. 2 Id. Plaintiff also experienced
an “[i]ncreased fear of death” and “negative impact on mental
health and overall well-being,” as well as increased stress,
high blood pressure, asthma, pulmonary disease, and “bone
density ailments.” Id.
*3 Plaintiff alleges violations of his Eighth Amendment
right to be free from cruel and unusual punishment, his
Fourteenth Amendment right to equal protection, and his
rights under the ADA and RA. Plaintiff requests an expedited
scheduling of his case, an order restraining DOCCS staff from
retaliating against him, and monetary damages. ECF No. 5 at
30-31.
IV. Constitutional Claims
A. Conditions of Confinement
The Court construes Plaintiff's allegation that Defendants
exposed him to harmful conditions of confinement by failing
to enforce pandemic safety protocols as claiming a violation
of his Eighth Amendment right to be free from cruel and
unusual punishment.
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To state a claim under the Eighth Amendment, a plaintiff
must allege: (1) the conditions were so serious that they
constituted a denial of “the minimal civilized measure of
life's necessities,” and (2) the prison officials acted with
“deliberate indifference.” Wilson v. Seiter, 501 U.S. 294,
297, 298 (1991) (internal quotation marks omitted); see also
Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir. 1996).
“To meet the objective element, the inmate must show
that the conditions, either alone or in combination, pose an
unreasonable risk of serious damage to his health.” Walker
v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). Exposure to
COVID-19 has been found to constitute such a risk, see
Fernandez-Rodriguez, 470 F. Supp. 3d 323, 349-51 (S.D.N.Y.
2020) (collecting cases), and “[c]ourts have long recognized
that prison officials have an Eighth Amendment duty to
protect inmates from exposure to communicable disease,”
Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 439 (D.
Conn. 2020) (citing Jolly v. Coughlin, 76 F.3d 468, 477
(2d Cir. 1996)) (“[C]orrectional officials have an affirmative
obligation to protect inmates from infectious disease.”).
“To meet the subjective element, the plaintiff must show that
the defendant acted with more than mere negligence[;] ... the
prison official must know of, and disregard, an excessive risk
to inmate health or safety.” Walker, 717 F.3d at 125 (internal
quotation marks, alteration, and citation omitted). “Evidence
that a risk was ‘obvious or otherwise must have been known
to a defendant’ may be sufficient for a fact finder to conclude
that the defendant was actually aware of the risk.” Id. (quoting
Brock v. Wright, 315 F.3d 158, 164 (2d Cir. 2003)).
The Amended Complaint alleges that COVID-19 safety
protocols were not enforced at Gowanda, and that in the
face of his express complaints to Defendants Schneider,
Lockwood, and Haque, they told him that he should not have
been sentenced to prison if he did not want to experience such
conditions. They also allegedly refused to take any additional
action to protect prisoners from being exposed to COVID-19.
The Court finds that these allegations adequately allege
Defendants’ personal involvement in the safety protocol
deficiencies alleged by Plaintiff. Generously construing
the pleadings, as the Court must, Plaintiff's conditions of
confinement claim is sufficient to proceed to service against
Schneider, Lockwood, and Haque.
His claim fails, however, with respect to Defendant's Morley,
Annucci, and Cuomo. To the extent that Plaintiff alleges
that they failed to respond to his complaints, the failure to
respond to letters protesting unconstitutional actions and/or
requesting an investigation is, without more, insufficient to
establish personal involvement. See Haley v. Tryon, 12 F.
Supp. 3d 573, 576 (W.D.N.Y. 2014); Shell v. Brzezniak, 365
F. Supp. 2d 362, 374 (W.D.N.Y. 2005) (finding no personal
involvement where sole complaint is that supervisory officials
ignored letter alleging unconstitutional conduct). At most,
however, Plaintiff is alleging that Morley did not respond
to his written complaints to Plaintiff's satisfaction. The
claims against Morley, Annucci, and Cuomo as to the
conditions of confinement at Gowanda are dismissed with
prejudice for lack of personal involvement. See Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (“[A] defendant in
a Section 1983 action may not be held liable for damages
for constitutional violations merely because he held a high
position of authority.”); Breton v. Lamont, No. 3:21-CV-719
(SRU), 2021 WL 3726011, at *5 (D. Conn. Aug. 23, 2021)
(finding “bare allegation” that plaintiff wrote to governor
“insufficient to establish” governor's personal involvement in
alleged Eighth Amendment violation related to COVID-19).
B. Inadequate Medical Care
*4 To the extent that Plaintiff reasserts a violation of his
Eighth Amendment right to adequate medical care, this claim
is dismissed with prejudice.
As stated in the initial screening order, for the denial of
medical care to amount to the “cruel or unusual punishment”
prohibited by the Eighth Amendment, Plaintiff must show
that Defendant's actions or omissions amounted to “deliberate
indifference to serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 106 (1976); Harrison v. Barkley, 219 F.3d
132, 136-37 (2d Cir. 2000) (“A serious medical condition
exists where ‘the failure to treat a prisoner's condition could
result in further significant injury or the unnecessary and
wanton infliction of pain.’ ”) (quoting Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998)). This standard includes
both an objective and a subjective component. Wilson, 501
U.S. at 298-99. With respect to the objective component, the
court must ask whether there has been a sufficiently serious
deprivation of the prisoner's constitutional rights. Id. With
respect to the subjective component, the court must consider
whether the deprivation was brought about by Defendant in
wanton disregard of those rights. Id.
“A [prisoner's] complaint that a physician has been negligent
in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the
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Eighth Amendment. Medical malpractice does not become
a constitutional violation merely because the victim is
a prisoner.” Estelle, 429 U.S. at 106. Likewise, “mere
disagreement over the proper treatment does not create
a constitutional claim. So long as the treatment given is
adequate, the fact that a prisoner might prefer a different
treatment does not give rise to an Eighth Amendment
violation.” Chance, 143 F.3d at 703.
In the Amended Complaint, Plaintiff again alleges in wholly
conclusory fashion that Defendants disregarded his medical
vulnerabilities as they relate to the COVID-19 pandemic.
As stated above, Morley is accused of ignoring Plaintiff's
petitions, letters, and grievances, “push[ing] the problem
to local medical staff,” and suggesting that Plaintiff seek
medical parole, which was unsuccessful. It is yet unclear what
COVID-19 policies Morley and Haque, as Gowanda's health
services director, failed to implement at the facility level,
what specific medical relief was refused by them or any other
provider, and how these Defendants were personally involved
in Plaintiff's medical treatment, if at all. Thus, even assuming
that Plaintiff's claim meets the objective component, he does
not inadequate treatment, personal involvement, or deliberate
indifference on the part of any named Defendant. This claim
is dismissed with prejudice.
C. Equal Protection
Plaintiff again alleges that Defendants violated his Fourteenth
Amendment right to equal protection by “discriminating
against him ... based on his severe health conditions, while
DOCCS actions (or lack-of) puts him at severe risk of death
by giving him no choice, no recourse and forcing him to be
housed in such extremely dire and risky prison conditions.”
ECF No. 5 at 28.
As set forth in the initial screening order, a state may not
“deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. Amend. XIV. At its core, equal
protection prohibits the government from treating similarly
situated persons differently. See City of Cleburne v. Cleburne
Living Center, 473 U.S. 432, 439 (1985); Sound Aircraft
Services, Inc. v. Town of East Hampton, 192 F.3d 329, 335 (2d
Cir. 1999). Generalized allegations are insufficient to make
out an equal protection claim. See Crawford-El v. Britton,
523 U.S. 574, 592 (1998) (“When intent is an element of a
constitutional violation, ... the primary focus is not on any
possible animus directed at the plaintiff; rather, it is more
specific, such as an intent to disadvantage all members of a
class that includes the plaintiff.”).
*5 In order to claim that Defendants’ conduct violates his
equal protection rights, Plaintiff must allege that:
(1) ... compared with others similarly
situated, [he] was selectively treated,
and (2) the selective treatment
was motivated by an intention
to discriminate on the basis of
impermissible considerations, such as
race or religion, to punish or inhibit the
exercise of constitutional rights, or by
a malicious or bad faith intent to injure
the person.
FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992)
(citing Wayte v. United States, 470 U.S. 598, 608-09 (1985)).
The amended pleadings fail to correct the deficiencies of the
original Complaint. Again, there is no indication of selective
treatment based on Plaintiff's medical vulnerabilities, the
exercise of constitutional rights, or a bad faith intent to
injure. “[A] plaintiff's mere subjective belief that he was
discriminated against does not sustain a discrimination
claim.” Sethi v. Narod, 12 F. Supp. 3d 505, 536 (E.D.N.Y.
2014) (internal quotation marks and alterations omitted).
Plaintiff's equal protection claim is dismissed with prejudice.
D. ADA and RA Claims
Title II of the ADA “proscribes discrimination against the
disabled in access to public services.” Harris v. Mills,
572 F.3d 66, 73 (2d Cir. 2009) (internal quotation marks
omitted). The statute provides that “no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.” Id.
(quoting 42 U.S.C. § 12132). To meet this requirement,
“ ‘reasonable accommodation’ may have to be provided
to the qualified individual.” Id. at 73 (internal quotation
marks omitted). Similarly, Section 504 of the RA provides
that “[n]o otherwise qualified individual with a disability in
the United States ... shall, solely by reason of her or his
disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.”
29 U.S.C. § 794(a). “[A]lthough there are subtle differences
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between these disability acts, the standards adopted by Title
II of the ADA for State and local government services are
generally the same as those required under section 504 of
federally assisted programs and activities.” See Henrietta D.
v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (internal
quotation marks omitted). Individuals can be sued only in
their official capacities under these statutes. Keitt v. New York
City, 882 F. Supp. 2d 412, 425-26 (S.D.N.Y. 2011).
To establish a prima facie violation of either statute, a plaintiff
must show that: (1) he “is a qualified individual with a
disability”; (2) “defendants are subject to one of the Acts”;
and (3) he was “denied the opportunity to participate in or
benefit from defendants’ services, programs, or activities,
or was otherwise discriminated against by defendants, by
reason of [his] disability.” D.K. v. Teams, 260 F. Supp. 3d
334, 368 (S.D.N.Y. 2017) (quoting Powell v. Nat. Bd. of Med.
Examiners, 364 F.3d 79, 85 (2d Cir. 2004) (internal quotation
marks omitted)). Here, Plaintiff alleges that while he received
certain medical accommodations, including a sneaker pass,
a lower floor pass to avoid stairs, and a pass to engage in
desk jobs with limited or no physical work, he was denied “an
accommodation from Covid-19.” ECF No. 5 at 27. Plaintiff
requested to be “placed in a single man room or a Covid-19
free dorm for high risk individuals or temporary home
confinement.” Id. He was “denied relief” and “ridiculed” by
Haque and Lockwood, “who said they are either not interested
or not able to provide the accommodations as they have bigger
problems to deal with” and that “if it bothers [Plaintiff,] he
should not have come to jail.” Id. Plaintiff further alleges that
he “was denied the opportunity to participate in programs,
spend his time in library and law library and yard and
participate in normal activities enjoyed by other inmates”
because “he was not given an accommodation which would
have allowed him to participate in these programs.” Id. at 27.
*6 First, Plaintiff does not allege what “accommodation”
he was denied with respect to such “programs” or “normal
activities,” including the library and the recreation yard.
Plaintiff states only that he was denied a single room,
COVID-free housing, and release, none of which relate to the
listed facility programs. Second, there is no allegation that
Defendants discriminated against Plaintiff on the basis of his
medical conditions. See, e.g., Fowler v. Dep't of Correction,
No. 3:18-CV-01635 (JAM), 2019 WL 2176304, at *4 (D.
Conn. May 20, 2019) (“Because [plaintiff] does not allege
that DOC discriminated against him because of his [medical
conditions], he has not alleged plausible grounds for relief
as to his alleged mistreatment relating to” those conditions.).
Plaintiff's ADA and RA claims are dismissed with prejudice.
CONCLUSION
For the reasons set forth above, Plaintiff's Eighth Amendment
conditions of confinement claim will proceed to service
against Defendants Schneider, Lockwood, and Haque. His
remaining claims are dismissed with prejudice pursuant to 28
U.S.C. § 1915A, and Defendants Morley, Annucci, Cuomo,
and DOCCS are terminated as parties to this action.
ORDER
IT HEREBY IS ORDERED that the Clerk of Court is directed
to add Haque as a Defendant and cause the United States
Marshals Service to serve copies of the Summons, Amended
Complaint and this Order upon Defendants Schneider,
Lockwood, and Haque without Plaintiff's payment therefor,
unpaid fees to be recoverable if this action terminates by
monetary award in Plaintiff's favor;
FURTHER, that the Clerk of Court is directed to forward
a copy of this Order by email to Ted O'Brien, Assistant
Attorney General in Charge, Rochester Regional Office
<Ted.O'Brien@ag.ny.gov>; and
FURTHER, that the Clerk of Court utilize the mailing
address for non-inmate mail provided by the New York State
Department of Corrections and Community Supervision's
website as needed;
FURTHER, that pursuant to 42 U.S.C. § 1997e(g),
Defendants are directed to respond to the Amended
Complaint.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 4504461
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Footnotes
1 The recitation of facts is drawn from the Amended Complaint, the contents of which must be accepted as
true for purposes of initial review under 28 U.S.C. § 1915A(b). See Erickson, 551 U.S. at 93-94.
2 Plaintiff has another action pending in this Court that relates to his second-hand smoke allegations. See
Tripathy v. Schneider, 6:21-cv-06339-FPG.
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Wright v. City of Syracuse, 611 Fed.Appx. 8 (2015)
2015 Fair Empl.Prac.Cas. (BNA) 181,250
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
611 Fed.Appx. 8
This case was not selected for
publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE
PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY
1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1
AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.
Guynell WRIGHT, Plaintiff–Appellant,
v.
CITY OF SYRACUSE, Jeffrey T. Wright, Andrew
Nolan, Donald Thompson, Robert Calkin, John M.
O'Connor, III, Thomas Scimone, Defendants–Appellees.
No. 14–1635–cv
|
April 16, 2015.
Synopsis
Background: Terminated African American city employee
brought action against employer for racial discrimination,
retaliation, hostile work environment, and due process
violations. The United States District Court for the Northern
District of New York, Glenn T. Suddaby, J., 2014 WL
1293527, granted employer's motion for summary judgment
and dismissed the complaint. Employee appealed.
Holdings: The Court of Appeals held that:
[1] termination of employee did not give rise to an inference
of racial discrimination, so as to create prima facie case under
Title VII;
[2] absence of causal connection between any protected
activity and termination precluded Title VII retaliation claim;
[3] incidents cited by employee were insufficient to establish
hostile work environment claim;
[4] termination did not violate employee's due process rights;
and
[5] city was not liable for alleged discrimination as a matter
of law.
Affirmed.
Procedural Posture(s): On Appeal; Motion for Summary
Judgment.
West Headnotes (7)
[1] Federal Courts Failure to mention or
inadequacy of treatment of error in appellate
briefs
Terminated employee's claims against employer
for breach of contract, violation of the New York
State Constitution, and punitive damages, which
were not addressed in his appellate briefs, were
waived.
1 Case that cites this headnote
[2] Civil Rights Discharge or layoff
Termination of African American city employee
did not give rise to an inference of racial
discrimination, so as to create prima facie case
under Title VII, and, furthermore, employer
provided a legitimate, nondiscriminatory reason
for any adverse action, where employee was
given several opportunities to keep his job
despite his continued and serious misconduct.
Civil Rights Act of 1964, § 701 et seq., 42
U.S.C.A. § 2000e et seq.
6 Cases that cite this headnote
[3] Civil Rights Motive or intent; pretext
Circumstances behind termination of African
American city employee did not give rise to an
inference of racial discrimination even under a
“cat's paw” theory, given absence of evidence of
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any act by his supervisors that was motivated by
discriminatory animus with the specific intent to
cause his termination. Civil Rights Act of 1964,
§ 701 et seq., 42 U.S.C.A. § 2000e et seq.
5 Cases that cite this headnote
[4] Civil Rights Causal connection; temporal
proximity
Municipal, County, and Local
Government Other particular offices or
positions
Public Employment Causal connection;
temporal proximity
Even if African American city employee
engaged in protected activities known to his
employer, absence of any causal connection
between those activities and his termination
precluded Title VII retaliation claim. Civil Rights
Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e
et seq.
5 Cases that cite this headnote
[5] Civil Rights Hostile environment;
severity, pervasiveness, and frequency
Incidents cited by African American city
employee did not rise to the level of severity
or pervasiveness to establish a hostile work
environment on the basis of his race. Civil Rights
Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e
et seq.
1 Case that cites this headnote
[6] Constitutional Law Termination or
discharge
Municipal, County, and Local
Government Requisites and sufficiency of
hearing
Public Employment Requisites and
sufficiency of hearing
Article 78 proceeding provided to African
American city employee after his termination, by
New York state law, was an adequate adversarial
hearing for purposes of due process. U.S.C.A.
Const.Amend. 14; N.Y.McKinney's CPLR 7801
et seq.
3 Cases that cite this headnote
[7] Civil Rights Employment practices
Where terminated African American city
employee failed to establish individual liability
on his claims of discrimination, retaliation,
hostile work environment, and deprivation of due
process, his § 1983 claim of liability against the
city for those purported violations failed as a
matter of law. Civil Rights Act of 1964, § 701 et
seq., 42 U.S.C.A. § 2000e et seq.
9 Cases that cite this headnote
*9 Appeal from a judgment of the United States District
Court for the Northern District of New York (Glenn T.
Suddaby, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the District Court is AFFIRMED.
Attorneys and Law Firms
A.J. Bosman, Bosman Law Office, Rome, NY, for Plaintiff–
Appellant.
Ann Magnarelli Alexander, Assistant Corporation Counsel,
for Robert Stamey, Corporation Counsel, Syracuse, NY, for
Defendants–Appellees.
PRESENT: JOSÉ A. CABRANES, ROBERT D. SACK,
GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Plaintiff-appellant Guynell Wright appeals from the District
Court's March 31, 2014 judgment granting defendants'
motion for summary judgment and dismissing the complaint
in its entirety.
BACKGROUND
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Wright's racial discrimination, retaliation, hostile work
environment, and due process claims principally stem from
the termination of his employment by the City of Syracuse
(the “City”) on February 24, 2010. Wright—an African–
American man—had been employed by the City since 1988
as a laborer in the Street Cleaning Bureau of the City's
Department of *10 Public Works (“DPW”). He was a
member of the AFSCME Local 400 bargaining unit (“Local
400”) and his employment was covered by a collective
bargaining agreement between Local 400 and the City.
During the course of Wright's employment, the City subjected
him to official discipline on several occasions. For instance,
between 1993 and 2007, Wright was suspended eight times
for a variety of infractions, including reporting late and
failing to report for work, fighting with and threatening
co-workers, insubordination, and theft of City property. In
January 2009, Wright was terminated for another incident of
insubordination, in which he was accused of acting belligerent
and threatening to a supervisor. The City, however, entered
into a settlement agreement with Local 400 to permit Wright
to continue working. Finally, in February 2010, Wright was
detained by the police after attempting to turn in scrap metal
belonging to the City to a commercial recycling facility. For
this offense, Wright's employment was terminated.
DISCUSSION
Wright's operative complaint asserts 21 causes of action
under multiple statutes, including 42 U.S.C. §§ 2000e et
seq. (“Title VII”); 42 U.S.C. § 1983 (“Section 1983”); id.
§ 1981 (“Section 1981”); and the New York State Human
Rights Law, N.Y. Exec. Law § 296 (“NYSHRL”). The District
Court granted defendants' motion for summary judgment and
dismissed the complaint in its entirety.
We review the District Court's grant of summary judgment
de novo, viewing the facts “in the light most favorable to
the non-moving party and draw[ing] all reasonable inferences
in that party's favor.” Cox v. Warwick Valley Cent. Sch.
Dist., 654 F.3d 267, 271 (2d Cir.2011). Summary judgment
is appropriate where “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). “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-
moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks
omitted).
[1] Upon de novo review, we agree with the District Court
that defendants are entitled to summary judgment. First,
Wright waived several of his claims on appeal by failing
to address them in his briefs. See Norton v. Sam's Club,
145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently
argued in the briefs are considered waived and normally will
not be addressed on appeal.”). Specifically, he waived his
claims for breach of contract, violation of the New York State
Constitution, and punitive damages, as well as his claims
against John and Jane Doe.
As to his remaining claims, Wright's briefs fail to differentiate
them by the statutory cause of action or the defendant
sued. Rather, Wright has simply grouped his claims into
four categories—discrimination, retaliation, hostile work
environment, and deprivation of due process. We address each
of these categories of claims in turn. 1
*11 [2] [3] First, Wright's discrimination claims under
Title VII are analyzed under the burden-shifting analysis
set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish
a prima facie case of intentional discrimination, a plaintiff
must show: (1) that he is a member of a protected class;
(2) that he was qualified for the position he held; (3) that
he suffered an adverse employment action; and (4) that the
adverse action took place under circumstances giving rise
to an inference of discrimination. Reynolds v. Barrett, 685
F.3d 193, 202 (2d Cir.2012). We agree with the District Court
that Wright has failed to establish that any of the adverse
employment actions he suffered—including his termination
—took place under circumstances giving rise to an inference
of racial discrimination. 2 Even if Wright did make out a
prima facie case of discrimination, however, defendants here
provided legitimate, non-discriminatory reasons for these
adverse actions, and Wright failed to provide any evidence
that these reasons were pretext for racial discrimination.
Rather, the record shows that Wright was given several
opportunities to keep his job, despite his continued and
serious misconduct. We therefore affirm the dismissal of
Wright's discrimination claims.
[4] Second, Wright's retaliation claims under Title VII are
also analyzed under the McDonnell Douglas burden shifting
framework. To establish a prima facie case of retaliation, a
plaintiff must show: “(1) participation in a protected activity;
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(2) that the defendant knew of the protected activity; (3)
an adverse employment action; and (4) a causal connection
between the protected activity and the adverse employment
action.” See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir.2010)
(internal quotation marks omitted). Even assuming that
Wright engaged in protected activities known to defendants,
there is no evidence—either direct or circumstantial—to
support a causal connection between these activities and
any of the adverse employment actions suffered by Wright.
Again, the record reflects that the disciplinary actions taken
against Wright—including his termination—were due to his
persistent and serious misconduct, not due to his engaging
in protected activities. We therefore affirm the dismissal of
Wright's retaliation claims.
[5] Third, to establish a hostile work environment claim
under Title VII, a plaintiff is required to provide evidence
that his workplace was “permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe
or pervasive to alter the conditions of [his] employment and
create an abusive working environment.” Redd v. New York
Div. of Parole, 678 F.3d 166, 175 (2d Cir.2012) (internal
quotation marks and ellipses omitted). We agree with the
District Court that none of the incidents cited by Wright
to *12 support this claim rose to the level of severity or
pervasiveness to establish a hostile work environment claim
on the basis of his race. We therefore affirm the dismissal of
Wright's hostile work environment claims.
[6] Fourth, Wright asserts that his termination violated his
rights under Due Process Clause of the Constitution. It is
well settled that procedural due process is satisfied “if the
government provides notice and a limited opportunity to be
heard prior to termination, so long as a full adversarial hearing
is provided afterwards.” Locurto v. Safir, 264 F.3d 154, 171
(2d Cir.2001). In this case, before he was terminated, Wright
was: (1) informed of the disciplinary charges against him; (2)
afforded a disciplinary hearing; and (3) permitted to grieve his
termination. Wright now argues that the Article 78 proceeding
provided after his termination by New York state law was
not an adequate adversarial hearing. We have previously held,
however, that “[a]n Article 78 proceeding ... constitutes a
wholly adequate post-deprivation hearing for due process
purposes.” Id. at 175. We therefore affirm the dismissal of
Wright's due process claim.
[7] Finally, we affirm the District Court's dismissal of
Wright's Section 1983 claims brought against the City,
pursuant to Monell v. Department of Social Services., 436
U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because
Wright failed to establish individual liability on his claims
of discrimination, retaliation, hostile work environment, and
deprivation of due process, his claim of liability against the
City for these purported violations fails as a matter of law. See
City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct.
1571, 89 L.Ed.2d 806 (1986).
CONCLUSION
We have considered all of the arguments raised by Wright
on appeal and find them to be without merit. For the reasons
stated above, the March 31, 2014 judgment of the District
Court is AFFIRMED.
All Citations
611 Fed.Appx. 8, 2015 Fair Empl.Prac.Cas. (BNA) 181,250
Footnotes
1 New York courts “require the same standard of proof for claims brought under the NYSHRL as for those
brought under Title VII.” Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d Cir.1999), and, for present
purposes, those brought under sections 1981 and 1983, see Patterson v. Cnty. Of Oneida, N.Y., 375 F.3d 206,
225 (2004) (“Most of the core substantive standards that apply to claims of discriminatory conduct in violation
of Title VII are also applicable to claims of discrimination in employment in violation of § 1981 or the Equal
Protection Clause.”). Accordingly, our holdings with respect to Wright's Title VII claims for discrimination,
retaliation, and hostile work environment apply with equal force to any analogous Section 1981, Section
1983, or NYSHRL claims.
Case 6:25-cv-00719-DNH-ML Document 11 Filed 02/20/26 Page 416 of 417

Wright v. City of Syracuse, 611 Fed.Appx. 8 (2015)
2015 Fair Empl.Prac.Cas. (BNA) 181,250
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
2 To the extent that Wright argues that the district court erred in failing to apply a “cat's paw” theory of liability
to his discrimination claim, that argument is unavailing. Even assuming that such a theory applies, see Nagle
v. Marron, 663 F.3d 100, 117–18 (2d Cir.2011), Wright fails to adduce evidence of any act by his supervisors
that was motivated by discriminatory animus, with the specific intent to cause his termination, and was the
proximate cause of his termination. Cf. Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 1194, 179
L.Ed.2d 144 (2011). Accordingly, even under a “cat's paw” theory, the circumstances of Wright's termination
do not give rise to an inference of racial discrimination.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:25-cv-00719-DNH-ML Document 11 Filed 02/20/26 Page 417 of 417