Richardson v. Enforcement Agency (DEA) et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
MAURICE RICHARDSON,
Plaintiff,
v.
ENFORCEMENT AGENCY (DEA); SPECIAL
RESPONSE TEAM (SRT); OFFICERS JOHN 	1:25-CV-0774
DOES 1-8, Members of Special Response Team, 	(AJB/ML)
in their individual and official capacities;
KENNETH SANDERS, Member of Special
Response Team; COHOES POLICE DEP’T;
OFFICER JOHN DOE 9, Cohoes Police Dep’t,
their individual and official capacities; and
OFFICER JANE DOE 10, Cohoes Police
Dep’t, in their individual and official capacities,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
MAURICE RICHARDSON
Plaintiff, Pro Se
Allenwood Low Federal Correctional Institution
Post Office Box 1000
White Deer, Pennsylvania 17887
MIROSLAV LOVRIC, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
The Clerk has sent a complaint in the above captioned action together with an amended
application to proceed in forma pauperis and inmate authorization form, filed by Maurice
Richardson (“Plaintiff”) to the Court for review. (Dkt. Nos. 4, 7, 15.) For the reasons discussed
below, I (1) grant Plaintiff’s amended in forma pauperis application (Dkt. No. 15), and (2)
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recommend that Plaintiff’s Complaint (Dkt. No. 7) be dismissed in part without prejudice and
with leave to amend, and in part without leave to amend.
I. 	INTRODUCTION
Construed as liberally1 as possible, Plaintiff’s Complaint alleges that his constitutional
rights were violated by defendants Drug Enforcement Agency (“DEA”), Special Response Team
(“SRT”), Cohoes Police Department, Kenneth Sanders, John Does 1-8, John Doe 9, and Jane
Doe 10 (collectively “Defendants”). (See generally Dkt. No. 7.)
More specifically, the Complaint alleges that on November 16, 2023, at approximately
6:20 a.m., Defendants DEA, SRT, and the Cohoes Police Department executed a search warrant
at Plaintiff’s residence. (Dkt. No. 7 at 2.) Plaintiff alleges that while assisting his mother,
officers aggressively seized him, punched him in the face, and continued to assault him. (Id.)
Plaintiff alleges that he was subjected to multiple punches to his head and body, slammed into a
wall, kicked in the stomach, and forcibly restrained with zip ties while officers hit and pushed
him. (Id.) The Complaint alleges that Plaintiff suffered multiple bruises, scratches, pain, and
was not offered any medical attention despite his clear injuries. (Id.)
Based on these factual allegations, Plaintiff asserts the following two claims: (1) a claim
of excessive force pursuant to the Fourth Amendment and 42 U.S.C. § 1983; and (2) a claim of
failure to intervene pursuant to the Fourth Amendment and 42 U.S.C. § 1983. (Dkt. No. 7 at 2.)
As relief, Plaintiff seeks compensatory damages of $5,000,000 and punitive damages of
$2,000,000. (Id. at 3.)
Plaintiff also seeks leave to proceed in forma pauperis. (Dkt. No. 15.)
1 	The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
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II. 	PLAINTIFF’S AMENDED APPLICATION TO PROCEED IN FORMA
PAUPERIS
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court
without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, 09-
CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).2 “Although an indigent,
incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently
pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate
accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New
York, 607 F.3d 18, 21 (2d Cir. 2010)).
Upon review, the Court finds that Plaintiff has submitted a completed IFP application
which has been certified by an appropriate official at his facility (Dkt. No. 15 at 2), and which
demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate
authorization required in the Northern District. (Dkt. No. 4.)
Accordingly, Plaintiff’s amended application to proceed with this action IFP is granted.
(Dkt. No. 15.)
2 	Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a
showing of “imminent danger of serious physical injury,” a prisoner has filed three or more
actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon
which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's
litigation history on the Federal Judiciary’s Public Access to Court Electronic Records
(“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review
that Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date
this action was commenced.
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III. 	LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
“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);
see also 28 U.S.C. § 1915A(a) (“The court shall review . . . as soon as practicable . . . a
complaint in a civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.”).
Likewise, under 28 U.S.C. § 1915A, a court must review any “complaint in a civil action
in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity” and must “identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune
from such relief.” 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999)
(per curiam) (Section 1915A applies to all actions brought by prisoners against government
officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.
2007) (stating that both sections 1915 and 1915A are available to evaluate prisoner pro se
complaints).
“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
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conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint
sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua
sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .
. . have had an opportunity to respond.” 	Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
IV. 	ANALYSIS
In addressing the sufficiency of a plaintiff’s complaint, the court must construe his
pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that it be
dismissed in part (1) without prejudice and with leave to amend, and (2) without leave to amend.
A. 	Claims Against Defendants DEA and SRT3
The Fourth Amendment and 42 U.S.C. § 1983 are inapplicable to the federal government,
therefore Plaintiff’s causes of action against Defendants DEA and SRT must be dismissed on this
ground. Ricca v. United States, 488 F. Supp. 1317, 1325 (E.D.N.Y. 1980) (citing District of
Columbia v. Carter, 409 U.S. 418, 93 S. Ct. 602, 34 L.Ed.2d 613 (1973)). Suits against the
United States and federal agencies require “a cause of action, subject matter jurisdiction, and a
3 	It is unclear whether Defendant Special Response Team is a federal agency or part of a
federal agency. However, Plaintiff alleges that Defendant Special Response Team has the same
address as Defendant DEA and thus, it appears to be a part of Defendant DEA. (Dkt. No. 7 at 1.)
Moreover, state and local officers who have been deputized to a federal task force act “under the
color of federal, not state, law for the purposes of the activities carried out by the task force.”
Escobar v. Correa, 22-CV-08434, 2024 WL 4042122, at *7 (S.D.N.Y. Sept. 4, 2024).
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waiver of sovereign immunity,” which Plaintiff has not asserted here. Presidential Gardens
Assoc. v. Sec'y of Hous. and Urban Dev., 175 F.3d 132, 139 (2d Cir. 1999) (citing United States
v. Mitchell, 463 U.S. 206, 212 (1983)); see also Adeleke v. United States, 355 F.3d 144, 150 (2d
Cir. 2004). Unless Congress has specifically authorized an agency of the federal government to
be sued in its own name, an action may not be maintained against that agency. Blackmar v.
Guerre, 342 U.S. 512, 515 (1952). Since Congress has not chosen to authorize suits against the
DEA, except in limited circumstances, which Plaintiff does not assert here, I recommend that the
claims against Defendants DEA and SRT be dismissed. Ricca, 488 F. Supp. at 1325.
B. 	Claims Against Defendants Kenneth Sanders and John Does 1-84
While there is no statutory basis for a remedy for damages against federal officials who
violate certain constitutional rights, “Bivens permits suits against federal officials for certain
constitutional violations in their individual capacities for money damages.” Silva v. Canarozzi,
18-CV-1771, 2019 WL 1596346, at *2 (D. Conn. Apr. 15, 2019) (citing FDIC v. Meyer, 510
U.S. 471, 485-86 (1994)).
1. 	Official Capacity Claims
A Bivens action does not permit suits against federal officials in their official capacity or
for injunctive or declaratory relief. See Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007)
(“The only remedy available in a Bivens action is an award for monetary damages from
defendants in their individual capacities.”); Yorinski v. Imbert, 39 F. Supp. 3d 218, 229 (D.
Conn. 2014) (citing Polanco v. US DEA, 158 F.3d 647, 652 (2d Cir. 1998)).
4 	It appears that Defendants Sanders and John Does 1-8 are employed by Defendant SRT,
which, as set forth above in note 3, appears to be a part of Defendant DEA.
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As a result, I recommend that Plaintiff’s claims against Defendants Sanders and John
Does 1-8 in their official capacities be dismissed.
2. 	Individual Capacity Claims
42 U.S.C. § 1983 provides for an action to redress “the deprivation of any rights,
privileges or immunities secured by the Constitution and laws” committed by a person acting
under color of state law. “The traditional definition of acting under color of state law requires
that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law.’” West v.
Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
“An action brought pursuant to 42 U.S.C. § 1983 cannot lie against federal officers.”
Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n. 4 (2d Cir. 1991); accord United States v.
Acosta, 502 F.3d 54, 60 (2d Cir. 2007) (“Section 1983, of course, does not apply to allegedly
unlawful acts of federal officers . . . . ”). “A federal actor may be subject to section 1983 liability
where there is evidence that the federal actor was engaged in a ‘conspiracy’ with state
defendants.” Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 154 (2d Cir. 2006).
However, “even specific allegations of conspiracy, if conclusory, would not be sufficient to state
a claim for conspiratorial violation of [a plaintiff's] rights.” Morales v. City of New York, 752
F.3d 234, 237 (2d Cir. 2014).
The Complaint does not allege facts plausibly suggesting that Defendants Sanders and
John Does 1-8 acted pursuant to a conspiracy. See Madera v. United States, 24-CV-2903, 2025
WL 1019139, at *3-4 (S.D.N.Y. Apr. 4, 2025) (citing Escobar v. Correa, 22-CV-8434, 2024 WL
4042122, at *6 (S.D.N.Y. Sept. 4, 2024) (“[c]ooperation between state and federal bureaucracies
is insufficient; federal actors must have acted with an improper motive rather than just in a spirit
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of cooperation with the state defendants.”)) (“mere cooperation between state and federal
officers is insufficient, and a plaintiff must identify an improper motive of the federal actors.”).
As a result, I recommend that any claims pursuant to 42 U.S.C. § 1983 be dismissed.
In the alternative, to the extent that Plaintiff’s claims are construed as pursuant to Bivens,
I recommend that they be dismissed.
To state a valid Bivens claim against a federal official in his or her individual capacity, a
plaintiff must allege that he or she “has been deprived of a constitutional right by a federal agent
acting under color of federal authority.” Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006).
Not all such wrongs, however, give rise to a Bivens action. The Supreme Court historically
recognized three categories of Bivens claims and since emphasized that “expanding the . . .
remedy is now a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)
(quoting Iqbal, 556 U.S. at 675). The approved claims arose in: (i) Bivens itself, a Fourth
Amendment search-and-seizure suit against federal narcotics officers; (ii) Davis v. Passman, 442
U.S. 228 (1979), a Fifth Amendment due process suit against a congressman-employer on the
grounds of gender discrimination; and (iii) Carlson v. Green, 446 U.S. 14 (1980), an Eighth
Amendment cruel and unusual punishment suit against federal prison authorities for failure to
provide adequate medical treatment. See Ziglar, 582 U.S. at 130-31. “After those decisions,
however, the Court changed course,” and has “consistently rebuffed requests to add to the claims
allowed under Bivens.” Hernandez v. Mesa, 589 U.S. 93, 99, 102 (2020). This is because
“creating a cause of action is a legislative endeavor . . . [a]nd the Judiciary’s authority to do so at
all is, at best, uncertain.” Egbert v. Boule, 596 U.S. 482, 491, 142 S. Ct. 1793 (2022).
In analyzing a proposed claim under Bivens, courts generally consider (1) “whether the
case presents ‘a new Bivens context’—i.e., is it ‘meaningfully’ different from the three cases in
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which the [Supreme] Court has implied a damages action,” Egbert, 596 U.S. at 492, 142 S. Ct.
1793 (alteration adopted) (quoting Abbasi, 582 U.S. at 139, 137 S. Ct. 1843), and (2) “if a claim
arises in a new context,” the court then considers whether there are “ ‘special factors’ indicating
that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and
benefits of allowing a damages action to proceed.’” Id. (quoting Abbasi, 582 U.S. at 136, 137
S.Ct. 1843). “[T]h[e]se steps often”—but not necessarily always—“resolve to a single question:
whether there is any reason to think that Congress might be better equipped to create a damages
remedy.” Id.
“Courts in this Circuit . . . are split as to whether excessive force claims [pursuant to the
Fourth Amendment] present a new context under Bivens, and the Second Circuit has yet to weigh
in on the question.”5 Carattini v. Behun, 21-CV-9373, 2024 WL 3274663, at *3 (S.D.N.Y. July
2, 2024).
Notwithstanding the lack of clear guidance, the undersigned is guided by other recent,
non-precedential Second Circuit decisions “affirming the district courts’ findings that the
plaintiffs’ Fourth Amendment Bivens claims presented a ‘new context.’” Carattini v. Behun, 21-
CV-9373, 2024 WL 3274663, at *3 n.3 (S.D.N.Y. July 2, 2024) (citing Cohen v. Trump, No. 23-
35, 2024 WL 20558, at *2-3 (2d Cir. Jan. 2, 2024) (summary order) (affirming dismissal of
Bivens claims alleging unlawful seizure, based on “new context” presented by lawsuit against
federal officials); Lewis v. Bartosh, No. 22-3060, 2023 WL 8613873, at *2 (2d Cir. Dec. 13,
5 	In Edwards v. Gizzi, the Second Circuit affirmed the district court’s dismissal of a Bivens
claim “seeking damages from court-security officers and deputy U.S. Marshals for using
excessive force while restraining [the plaintiff] in a courtroom.” 107 F.4th 81, 82 (2d Cir. 2024).
However, the action in Edwards concerned an excessive force claim pursuant to the Eighth
Amendment and thus, did not resolve the question of whether a Fourth Amendment excessive
force claim “is different in a meaningful way from the three Bivens claims the Supreme Court
has recognized.” Edwards, 107 F.4th at 82 (Park, J., concurring).
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2023) (summary order) (affirming dismissal of Bivens claim alleging excessive force, based on
“new context” presented by suit against Deputy U.S. Marshals)). “While not explaining their
application of the two-part test from Egbert with precision, the panels in Cohen and Lewis both
relied on the different agencies and federal officers involved, as well as the existence of an
alternative remedy, in declining to infer a Bivens cause of action in those cases.” Gray v. Gomez,
728 F. Supp. 3d 264, 271-72 (E.D.N.Y. 2024) (footnote omitted) (citing Cohen, 2024 WL 20558
at *2-3; Lewis, 2023 WL 8613873 at *1).
Moreover, recent district court decisions within the Second Circuit addressing Fourth
Amendment Bivens claims are in accord with the Second Circuit’s decisions in Cohen and Lewis.
See, e.g., Escobar v. Correa, 22-CV-8434, 2024 WL 4042122, at **4-5 (S.D.N.Y. Sept. 4, 2024)
(dismissing Bivens claim against U.S. Marshals who allegedly “used ‘brutal, retaliatory
excessive force’ against Plaintiff” when arresting him in a home because claim involved new
category of defendant and plaintiff could bring claim under the FTCA); Shaw v. United States
Marshall, 24-CV-5644, 2024 WL 4574146, at *2 (E.D.N.Y. Oct. 24, 2024) (dismissing Bivens
claim against U.S. Marshal who allegedly breached the door of plaintiff’s home and destroyed
her property while searching home, because claim involved new category of defendant and
plaintiff could bring claim under the FTCA); German-Andujar v. U.S. Customs & Border Prot.,
24-CV-6190, 2025 WL 1101514, at *3 (W.D.N.Y. Apr. 14, 2025) (dismissing Bivens claim
against border patrol agent who allegedly tackled and beat plaintiff fleeing from an
“unwarranted” search because claim involved new category of defendant and plaintiff could
bring claim under the FTCA).
This case is partially distinguishable from Cohen, Lewis, and the other district court cases
cited above because this case does not “involve[ ] a ‘new category of defendants.’” Egbert, 596
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U.S. at 492. Indeed, like the plaintiff in Bivens, Plaintiff sues federal narcotics officers. See
Bueno Diaz v. Mercurio, 442 F. Supp. 3d 701, 708 (S.D.N.Y. 2020) (holding that the plaintiff’s
case against the defendant DEA agents “concern[ed] the same type of federal officers: narcotics
officers” as those in Bivens, which were FBI agents). “Nevertheless, even if a claim does not
involve a ‘new category of defendants,’ a Bivens remedy may still be ‘unavailable’ if there is an
‘alternative remedial structure.’”” Salaman v. Carney, 25-CV-0482, 2025 WL 2432674, at *5
(D. Conn. Aug. 22, 2025) (citing Lewis, 2023 WL 8613873, at *1 (noting that “‘if a claim arises
in a new context’—such as if it involves ‘a new category of defendants’—or if there is an
‘alternative remedial structure,’ a Bivens remedy is generally ‘unavailable.’” (alteration omitted;
emphasis added)); Escobar, 2024 WL 4042122 at *4 (quoting Egbert, 596 U.S. at 493) (noting
that “a Bivens remedy is unavailable ‘if Congress already has provided, or has authorized the
Executive to provide, an alternative remedial structure,’ even if existing or alternative remedies
do not provide complete relief.”)). Such an “alternative remedial structure” is available here.
“Indeed, as with the plaintiffs in Escobar, Shaw, and German-Andujar, [Plaintiff] could
bring a claim under the Federal Torts Claims Act (“FTCA”) related to the . . . alleged use of
excessive force” by Defendants Sanders and John Does 1-8. Salaman, 2025 WL 2432674, at *5
(citing Oliveras v. Basile, 440 F. Supp. 3d 365, 374-76 (S.D.N.Y. 2020) (concluding that the
FTCA provided alternative remedial structure precluding Bivens remedy for false arrest and
excessive force claims in connection with injurious detonation of explosive devices during
raid)).6
6 	Neither the Supreme Court nor the Second Circuit has explicitly “decided whether, in the
wake of Abbasi, the availability of an FTCA action precludes the Bivens remedy.” Scott v. Quay,
19-CV-1075, 2020 WL 8611292, at *8 (E.D.N.Y. Nov. 16, 2020). Thus, “absent clear
guidance,” some courts have been “unwilling to determine that the FTCA alone is a sufficient
alternate remedy.” See Mirvis v. Quay, 19-CV-2573, 2023 WL 5671935, at *10 (E.D.N.Y. Sept.
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Hence, the undersigned concludes that the availability of this “alternative remedial
structure” forecloses a Bivens action against DEA agents for excessive force under the Fourth
Amendment. See Egbert, 596 U.S. at 497 (that “Congress has provided alternative remedies for
aggrieved parties in [plaintiff's] position . . . independently foreclose a Bivens action here.”). As
a result, I recommend that Plaintiff’s Fourth Amendment excessive force claims be dismissed.
See 28 U.S.C. § 1915A(b)(1).
Moreover, to the extent that Plaintiff asserts claims of failure to intervene pursuant to
Bivens and the Fourth Amendment, I recommend that those claims be dismissed.
A failure to intervene claim pursuant to the Fourth Amendment is a new context for
purposes of Bivens. See, e.g., Johnson v. Santiago, 624 F. Supp. 3d 295, 300 (E.D.N.Y. 2022)
(“[A] claim for failure to protect based on the allegation that [Defendant] was present during the
attack on Plaintiff but did not help Plaintiff or intervene presents a new Bivens context.”);
Cannenier v. Skipper-Scott, 18-CV-2383, 2019 WL 764795, at *5 (S.D.N.Y. Feb. 20, 2019)
(“The Supreme Court has recognized only three Bivens contexts, none of which include failure to
protect . . . .”); Martinez v. D'Agata, 16-CV-0044, 2019 WL 6895436, at *7 (S.D.N.Y. Dec. 18,
2019) (declining to find Bivens remedy for claim against federal defendants for “failure to
intervene”).
1, 2023). But while the Supreme Court and Second Circuit may not have explicitly stated that
the FTCA in particular precludes a Bivens remedy, it need not do so because “‘any alternative,
existing process for protecting the [injured party’s] interest’ . . . itself may ‘amoun[t] to a
convincing reason for the Judicial Branch to refrain from providing a new and freestanding
remedy in damages.’” Abbasi, 582 U.S. at 137 (emphasis added; alteration in original) (quoting
Wilkie v. Robbins, 551 U.S. 537, 550 (2007)); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73-74
(2001) (recognizing that state tort law provided alternative means for relief); Minneci v. Pollard,
565 U.S. 118, 127-130 (2012) (same); but see Arias v. Herzon, 150 F.4th 27 (1st Cir. 2025).
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In addition, special factors counsel against extending Bivens to Plaintiff’s failure to
intervene claim. More specifically, the alternative remedial structure, as set forth above, result in
the same conclusion as Plaintiff’s excessive force claims. Arias v. Herzon, 680 F. Supp. 3d 61,
70 (D.N.H. 2023) (dismissing the plaintiff’s Bivens failure to intervene claims because they are a
new context and an alternative remedial structure exists), reversed on other grounds, 150 F.4th
27 (1st Cir. 2025).
Moreover, a failure to intervene claim “does not constitute a cognizable Bivens claim.”
Smith v. Arrowood, 21-CV-6318, 2023 WL 6065027, at *5 (W.D.N.Y. Sept. 18, 2023) (citing,
inter alia, Arias v. Herzon, 680 F. Supp. 3d at 70 (“Regardless of whether a failure-to-intervene
claim is an alternative theory of liability or separate constitutional violation, Bivens did not
involve any theory that the defendant officers’ failure to intervene should subject them to
bystander liability under Bivens.”)).
As a result, I recommend that Plaintiff’s failure to intervene claims asserted against
Defendants Sanders and John Does 1-8 in their individual capacities be dismissed. See Oehler v.
Nietzel, 23-CV-0956, 2024 WL 4989300, at *10 (W.D.N.Y. Aug. 6, 2024) (citing Sigalovskaya
v. Braden, 15-CV-0034, 2023 WL 6385761, at *4 (E.D.N.Y. Sept. 29, 2023) (“[p]laintiff’s
malicious prosecution and failure to intervene claims are new contexts because Bivens did not
involve a malicious prosecution or failure to intervene claim.”) (holding that the plaintiff’s
“failure to intervene claims . . . which were [not] at issue in Bivens, . . . present[s a] new
context[].”)
C. 	Claims Against Defendants John Doe 9 and Jane Doe 10
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of
action for “the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws of the United States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990).
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“Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)
(citation omitted).
To state a viable claim under Section 1983, a plaintiff must allege that the defendant,
while acting under color of state law, deprived him of a right, privilege or immunity secured by
the Constitution or by the laws of the United States. See 42 U.S.C. § 1983. “It is well settled
that, in order to establish a defendant’s individual liability in a suit brought under § 1983, a
plaintiff must show, inter alia, the defendant’s personal involvement in the alleged constitutional
deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). Thus, “a Section
1983 plaintiff must ‘allege a tangible connection between the acts of the defendant and the
injuries suffered.’” Austin v. Pappas, 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31,
2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)) (other citation omitted).
Separate from the substantive personal involvement requirement, is a pleading
requirement that, to adequately state a claim, a plaintiff's complaint must “differentiate which
defendant[s] w[ere] involved in [what] unlawful conduct.” Ying Li v. City of New York, 15-CV-
1599, 2017 WL 1208422, at *6 (E.D.N.Y. Mar. 31, 2017); see also Wright v. Orleans Cnty., 14-
CV-0622, 2015 WL 5316410, at *13 (W.D.N.Y. Sept. 10, 2015) (noting in a § 1983 case that
“[g]roup pleading is insufficient for purposes of Rule 8(a)(2), which requires a short and plain
statement of the claim showing that the pleader is entitled to relief” (citation and quotation marks
omitted)); Holmes v. Allstate Corp., 11-CV-1543, 2012 WL 627238, at *7, *22 (S.D.N.Y. Jan.
27, 2012) (“Rule 8(a) is violated where a plaintiff, by engaging in ‘group pleading,’ fails to give
each defendant fair notice of the claims against it.”).
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To satisfy the personal involvement requirement and the rule against group pleading, it is
not necessary for a plaintiff to know the name of the defendant. Where a plaintiff does not know
the name of a defendant, the plaintiff may identify the defendant in the pleading as John or Jane
Doe. However, the pleading must still satisfy the rules governing personal involvement and
group pleading as to the John or Jane Doe defendant. See Little v. Mun. Corp., 51 F. Supp. 3d
473, 493-94 (S.D.N.Y. 2014) (dismissing without prejudice excessive force claim asserted
against “members of the ‘Special Search Team’ and ‘ESU Officers’ ” and noting that, “[t]o the
extent that [plaintiff] does not know the names of the members of the Special Search Team or
ESU Officers involved, he may name ‘John Doe’ defendants and include as much identifying
information as he has knowledge of, for the purpose of filing an amended complaint, should [he]
chose to do so”); Williams v. 120 PCT Undercover, 11-CV-4690, 2011 WL 13128209, at *1
(E.D.N.Y. Oct. 18, 2011) (dismissing complaint without prejudice where plaintiff’s claims
provided information about the alleged constitutional deprivations, but were brought against “the
120 Precinct and District 9, a police precinct and district of the New York City Police
Department”).
Here, Plaintiff simply lists different groups of unidentified law enforcement officers—
“members of the DEA, Special Response Team, and Cohoes Police Department” (Dkt. No. 7 at
2)—and generally alleges that on November 16, 2023, “officers aggressively seized him,
punched him in the face, and continued to assault him.” (Id.) “The use of the terms ‘they,’ or
‘the police’ or ‘officer’ as a name for alleged defendants is not adequate to state a claim against a
‘person’ as required in § 1983 actions.” LaPietra v. City of Albany Police Dep't, 19-CV-1527,
2020 WL 5891888, at *8-9 (N.D.N.Y. Oct. 5, 2020) (Dancks, M.J.) (citing Williams, 2011 WL
13128209, at *1 (dismissing complaint with leave to amend where the “[p]laintiff alleges that
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unnamed undercover police officers used excessive force against him and caused him to sustain
injuries on August 26, 2008 but does not identify any particular defendants.”)), report and
recommendation adopted, 2020 WL 7021589 (N.D.N.Y. Nov. 30, 2020) (McAvoy, J.).7
Hence, the undersigned finds that Plaintiff failed to adequately plead that any individual
defendant was personally involved in any alleged wrongdoing on November 16, 2023, and has
contravened the rule against group pleading. As a result, I recommend dismissing Plaintiff’s
claims against these Defendants John Doe 9 and Jane Doe 10 without prejudice and with leave to
amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted. See LaPietra, 2020 WL 5891888, at *8-9 (N.D.N.Y.
Oct. 5, 2020) (recommending dismissal of the plaintiffs’ claims where they “simply list[ed]
different groups of unidentified defendants in the caption of the Complaint and generally
allege[d] that on December 16, 2014, their Fourth Amendment constitutional rights were
violated.”).
D. 	Claims Against Defendant Cohoes Police Department
“Although a municipality is subject to suit pursuant to section 1983, see Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 690 (1978), a municipal . . . department does not have the capacity
to be sued as an entity separate from the municipality in which it is located.” White v. Syracuse
Police Dep't, 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (Peebles, M.J.)
(citing Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.);
Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y.
7 	See Williams, 2011 WL 13128209, at *1 (giving the plaintiff leave to file an amended
complaint to name the individuals responsible for the alleged deprivation of his rights and noting
“if plaintiff cannot identify the individual defendant(s) within the time allowed in this order or
because they were undercover, he may designate the individual as John (or Jane) Doe #1, and so
on.”).
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Nov. 26, 2014) (Sharpe, J.); Hoisington v. Cnty. of Sullivan, 55 F. Supp. 2d 212, 214 (S.D.N.Y.
1999) (“Under New York law, a department of a municipal entity is merely a subdivision of the
municipality and has no separate legal existence. Therefore, municipal departments like the
Department of Social Services are not amenable to suit and no claims lie directly against the
Department.”)), report and recommendation adopted by 2019 WL 974824 (N.D.N.Y. Feb. 28,
2019) (Suddaby, C.J.).
As a result, I recommend that Plaintiff’s claims against Defendant Cohoes Police
Department be dismissed because it is not an entity that is amenable to suit. To the extent that
the Complaint is liberally construed as asserting claims against the City of Cohoes, I recommend
that they be dismissed for two reasons.
First, because I recommend that the Court dismiss Plaintiff’s claims against the
individual defendants, “Plaintiff[] may not prevail on [his] municipal-liability claims under
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978).” Stollman v. Williams, 23-
7610, 2025 WL 2784215, at *5 n.2 (2d Cir. Sept. 30, 2025).
Second, Plaintiff fails to state a claim upon which relief may be granted for municipal
liability. “[T]o hold a municipality liable under § 1983 for the unconstitutional actions of its
employees, a plaintiff is required to plead and prove three elements: (1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.”
Adams v. City of Syracuse, 21-CV-0650, 2025 WL 2772081, at *28 (N.D.N.Y. Sept. 29, 2025)
(Nardacci, J.) (internal brackets omitted) (quoting Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297
(2d Cir. 2020)). A plaintiff can establish the existence of an official policy or custom through
“(1) a formal policy endorsed by the municipality; (2) actions directed by the government’s
authorized decisionmakers or those who establish governmental policy; (3) a persistent and
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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).
Here, Plaintiff essentially complains of one discrete incident during which Defendants—
some of whom are employed by the City of Cohoes as police officers—did not act properly.
(Dkt. No. 1 at 1-3.) 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, Plaintiff’s conclusory allegation that “[t]he Cohoes Police Department
failed to properly train and supervise officers, contributing to the violations of Plaintiff’s rights”
is insufficient to plausibly suggest a failure to train or “deliberate indifference” to the rights of
persons who would come into contact with employees of City of Cohoes.
As a result, I recommend that Plaintiff’s claims against the City of Cohoes be dismissed.
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
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(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.).8
The issues identified in Plaintiff’s Complaint asserting claims against Defendants DEA,
SRT, Sanders, John Does 1-8, and Cohoes Police Department are substantive, such that a better
pleading could not cure them. As a result, I recommend that Plaintiff’s claims against
Defendants DEA, SRT, Sanders, John Does 1-8, and Cohoes Police Department be dismissed
without leave to replead.
However, out of deference to Plaintiff’s pro se status, and because a more detailed
pleading could potentially cure the defects identified against Defendants John Doe 9 and Jane
8 	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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Doe 10,9 the undersigned recommends dismissing Plaintiff’s claims without prejudice and with
leave to amend.
If Plaintiff chooses to file an amended complaint, he should note that in any amended
complaint, Plaintiff must clearly set forth facts that give rise to the claims, including the dates,
times, and places of the alleged underlying acts, and each individual who committed each alleged
wrongful act. In addition, the revised pleading should allege facts demonstrating the specific
involvement of any of the named defendants in the constitutional deprivations alleged in
sufficient detail to establish that they were tangibly connected to those deprivations. Bass v.
Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any such amended
complaint will replace the existing Complaint, and must be a wholly integrated and complete
pleading that does not rely upon or incorporate by reference any pleading or document
previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d
Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original
and renders it of no legal effect.”).
ACCORDINGLY, it is
ORDERED that Plaintiff’s amended application to proceed in forma pauperis (Dkt. No.
15) is GRANTED; and it is further
ORDERED that the Clerk of the Court (1) provide the Superintendent of the facility that
Plaintiff has designated as his current location with a copy of Plaintiff’s inmate authorization
form (Dkt. No. 4) and notify that official that Plaintiff has filed this action and is required to pay
the Northern District of New York the entire statutory filing fee of $350.00 in installments, over
9 	In addition, if Plaintiff desires, claims against the City of Cohoes would be ripe for re-
pleading.
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time, pursuant to 28 U.S.C. § 1915; and (2) provide a copy of Plaintiff’s inmate authorization
form (Dkt. No. 4) to the Financial Deputy of the Clerk’s office; and it is further respectfully
RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 7) be DISMISSED (1) without
prejudice and with leave to amend with respect to Plaintiff’s claims against Defendants John
Doe 9 and Jane Doe 10, and (2) without leave to amend with respect to Plaintiff’s claims
against Defendant DEA, SRT, Sanders, John Does 1-8, and Cohoes Police Department, pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b); and it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and
recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.10
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.11 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
Dated: December ___, 2025
Binghamton, New York
10 	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).
11 	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).
30
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Adams v. City of Syracuse, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
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 (1986); Richardson v. Selsky, 5 F.3d 616, 621
(2d Cir. 1993). A court first determines “whether the evidence
presents a sufficient disagreement to require submission to a
[factfinder] or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986). “When analyzing a summary
judgment motion, the court ‘cannot try issues of fact; it can
only determine whether there are issues to be tried.’ ” Galeotti
v. Cianbro Corp., No. 12-cv-00900, 2013 WL 3207312, at *4
(N.D.N.Y. June 24, 2013) (quoting Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 36-37 (2d Cir. 1994)).
Defendant, in seeking summary judgment, “bears the burden
of establishing that no genuine issue of material fact exists
and that the undisputed facts establish [its] right to judgment
as a matter of law.” Rodriguez v. City of New York, 72 F.3d
1051, 1060-61 (2d Cir. 1995) (citation omitted). To determine
whether a genuine issue of material fact exists, a court must
resolve all ambiguities and draw all reasonable inferences
against the moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); accord Gibbs-
Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). A “material”
fact is one that would “affect the outcome of the suit under
the governing law,” and a dispute about a genuine issue of
material fact occurs if the evidence is such that “a reasonable
[factfinder] could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord R.B. Ventures, Ltd. v.
Shane, 112 F.3d 54, 57 (2d Cir. 1997). The Court should
“grant summary judgment where the nonmovant's evidence is
merely colorable, conclusory, speculative or not significantly
probative.” Schwimmer v. Kaladjian, 988 F. Supp. 631, 638
(S.D.N.Y. 1997) (citing, inter alia, Anderson, 477 U.S. at
249-50).
IV. DISCUSSION
The Court addresses the parties’ specific arguments with
respect to the remaining claims below. Given the disputed
factual record as to many aspects of Plaintiff's claims, the
Court finds it appropriate to reiterate the Second Circuit's
guidance in another case involving Section 1983 claims for
false arrest, malicious prosecution, fabricated evidence, and
related Monell liability:
We write because the district
court improperly granted summary
judgment to defendants. The record
before us reveals evidence from
which a jury could find that certain
of the individual police officers
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prepared a false report and initiated a
prosecution of plaintiff[ ] predicated
on this manufactured evidence. We
also write to emphasize a larger
issue raised by this case. Plaintiff[ ]
allege[s] that the defendant police
officers lied and fabricated evidence.
While we do not know whether the
accusations can be sustained, we do
know that such accusations must be
carefully reviewed. Lying is wrong,
and if the police lie while acting
in their official capacity, they also
violate the public trust. Courts must
ensure that such serious accusations
receive appropriate scrutiny lest our
Court appears to endorse such
official misconduct, which would
weaken the public's respect for the
administration of justice. In making
these remarks, we emphasize that we
have reached no conclusions about
whether the plaintiff[’s] accusations
can be substantiated. It will be for
a jury to determine at trial whether
plaintiff[ ] ha[s] proved [his] very
serious charges.
*16 Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 125 (2d
Cir. 1997). While the Court addresses the parties’ significant
factual disputes in detail below, it similarly reaches no
conclusions at this stage regarding whether Plaintiff will
ultimately be able to prove his surviving claims.
A. False Arrest under Section 1983 and New York law
“A § 1983 claim for false arrest, resting on the Fourth
Amendment right of an individual to be free from
unreasonable seizures[,] is substantially the same as a claim
for false arrest under New York law.” Alexander v. City of
Syracuse, 132 F.4th 129, 156 (2d Cir. 2025) (alteration in
original) (quoting Kee v. City of New York, 12 F.4th 150, 158
(2d Cir. 2021)). And “[u]nder New York law, to prevail on
a claim for false arrest, a plaintiff must show that (1) the
defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not
consent to the confinement, and (4) the confinement was not
otherwise privileged.” Id. (quoting Ashley v. City of New York,
992 F.3d 128, 136 (2d Cir. 2021)). “Under both federal and
New York state law, probable cause is a complete defense
to a false arrest claim.” Carruthers v. Colton, ––– F.4th
––––, 2025 WL 2405451, at *6 (2d Cir. Aug. 20, 2025)
(quoting Triolo v. Nassau Cnty., 24 F.4th 98, 106 (2d Cir.
2022)); see also Grice v. McVeigh, 873 F.3d 162, 166 (2d
Cir. 2017) (“[Plaintiff]’s unlawful arrest claim fails because
his handcuffing was an ‘investigatory detention’ (otherwise
known as a ‘Terry stop’) that never ripened into an arrest and
was supported by reasonable suspicion.”). “Probable cause
to arrest a person exists if the law enforcement official, on
the basis of the totality of the circumstances, has sufficient
knowledge or reasonably trustworthy information to justify
a person of reasonable caution in believing that an offense
has been or is being committed by the person to be arrested.”
United States v. Hawkins, 37 F.4th 854, 858 (2d Cir. 2022)
(quoting United States v. Patrick, 899 F.2d 169, 171 (2d Cir.
1990)).
As detailed earlier, after several minutes of questioning by
numerous officers, Plaintiff was handcuffed and put into the
back of a police vehicle in front of 941 James Street at
approximately 7:34 p.m. on May 6, 2019. See supra Section
II.B.2. Plaintiff was eventually transported to CID shortly
after 8:00 p.m., where he remained detained until his custodial
interrogation began at approximately 10:30 p.m. See supra
Section II.B.3. Plaintiff was held in the interrogation room
until approximately 1:00 a.m. on May 7, 2019, when he was
placed back in handcuffs and his booking process began. Id.
Plaintiff was then detained for more than nine months, until
his eventual release on February 12, 2020. See supra Section
II.B.5.
Plaintiff's opposition to the Motion does not challenge
his detention and questioning by officers prior to being
handcuffed at approximately 7:34 p.m. 13 See, e.g., Dkt.
No. 85 at 10; see also Dkt. No. 77-56 at 12-13. And
Defendants only seek summary judgment on the portions of
Plaintiff's false arrest claims that relate to his “pre-confession
detainment” and “post-confession arrest,” not his subsequent
months-long detention. Compare Dkt. No. 77-56 at 12, with
Dkt. No. 1 at ¶¶ 43, 92-93; see also Dkt. No. 7-2 at 13-14;
Dkt. No. 19 at 9-10. The Court thus focuses its analysis on
Plaintiff's detention at 941 James Street on May 6, 2019, his
formal arrest at CID on May 7, 2019, and the five or so hours
that he remained detained in between.
1. Plaintiff's Detention at 941 James Street
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*17 Defendants first contend that Plaintiff's false
arrest claims should fail because—although Plaintiff was
handcuffed, placed in the back of a police vehicle, transported
from his home to a police station approximately 30 minutes
later, and detained for hours—he was not actually under
arrest during this time. Instead, Defendants argue, the
approximately five-hour seizure of Plaintiff prior to his
formal arrest merely constituted an investigative stop and
only required reasonable suspicion. Dkt. No. 77-56 at 13,
16 (stating that “only reasonable suspicion was required” to
detain Plaintiff at 941 Adams Street and Defendants “had
ample reasonable suspicion to detain Plaintiff”); id. at 17,
18 (stating that “Plaintiff's pre-confession detainment at CID
was merely a continuation of his on-scene detainment” and
“the detainment was supported by reasonable suspicion”);
Dkt. No. 90 at 6 (stating that, as to Plaintiff's interrogation,
“Defendants maintain that Plaintiff was being detained
requiring only reasonable suspicion”).
This is a particularly weak argument given applicable law and
the facts of this case. 14 See, e.g., United States v. Lefebvre,
117 F.4th 471, 475 (2d Cir. 2024) (“There were several factors
present during th[is] seizure that, in many situations, this
Court would consider to be evidence that a seizure had indeed
become a de facto arrest. [Plaintiff]’s ‘freedom of movement
was restrained’ and ‘handcuffs were used.’ ... [T]he encounter
lasted roughly 20 minutes.... [Plaintiff]’s transportation to
a police station, instead of some of other reasonable third
location, would in many situations clearly establish that the
seizure had ripened into a de facto arrest.”) (citations omitted)
(collecting cases). The Court agrees with Plaintiff, Dkt. No.
85 at 8-9, that Defendants’ maximalist position regarding
their multi-hour detention of Plaintiff is unsupported by
Fourth Amendment jurisprudence, see, e.g., United States
v. Candelario, 486 F. App'x 907, 908 (2d Cir. 2012) (“It
is well established that ‘a police officer may briefly detain
an individual for questioning if the officer has a reasonable
suspicion that the individual is, has been, or is about to be
engaged in criminal activity.’ ”) (emphasis added) (quoting
United States v. Padilla, 548 F.3d 179, 186 (2d Cir. 2008)).
See also Grice, 873 F.3d at 167 (“In general, to determine
whether a Terry stop is so intrusive as to become an arrest, we
look to: [‘]the amount of force used by police, the need for
such force, and the extent to which the individual's freedom
of movement was restrained, and in particular such factors as
the number of agents involved, whether the target of the stop
was suspected of being armed, the duration of the stop, and
the physical treatment of the suspect, including whether or
not handcuffs were used.[’]”) (quoting United States v. Perea,
986 F.2d 633, 645 (2d Cir. 1993)).
By approximately 7:34 p.m., Plaintiff had already been
questioned for several minutes by multiple officers at the
scene. See supra Section II.B.2.a.ii. Plaintiff had informed
officers that he did not assault Mr. Jones (which Ms. Bailey
had also said); that the person who assaulted Mr. Jones had
run down James Street (which Ms. Bailey had said as well);
that the assailant was a black man named “Pete” (which
Ms. Goldych had also said); and that Plaintiff lived in
one of the apartments at 941 James Street. Id. Defendants
acknowledge that “the entire interaction was peaceful” prior
to Plaintiff's handcuffing, Dkt. No. 77-56 at 15, and Officer
Tolone testified that he did not feel his safety was at issue,
Dkt. No. 90-1 at ¶ 510. Throughout this time, Plaintiff did
not interfere with the investigation, continued answering
questions from officers, and made no effort to leave the scene.
See supra Section II.B.2.a.ii. Indeed, BWC footage shows
Plaintiff sitting down and speaking with Officer Russell
seconds before Officer Tolone directed him to stand up and
turn around. Dkt. No. 77-17 at 4:34. Officer Tolone then
handcuffed Plaintiff and informed Plaintiff that he was being
detained. Id. Officer Tolone proceeded to place Plaintiff into
the back of one of the multiple police vehicles parked in front
of Plaintiff's home. Id. at 5:08.
*18 Given this factual record, a reasonable juror could
conclude that Plaintiff was arrested at this time. Grice, 873
F.3d at 167. As the authority upon which Defendants rely,
Dkt. No. 77-56 at 15, makes clear, “[h]andcuffing is ordinarily
not incident to a Terry stop, and tends to show that a stop
has ripened into an arrest,” Grice, 873 F.3d at 167. See
also United States v. Newton, 369 F.3d 659, 676 (2d Cir.
2004) (“Handcuffs are generally recognized as a hallmark of
a formal arrest.”) (collecting cases). Moreover, Defendants
have failed to demonstrate the applicability of any of the
“certain unusual circumstances” when “handcuffing a suspect
to investigate a reasonable suspicion does not transform a
Terry stop into an arrest.” Grice, 873 F.3d at 168 (collecting
cases); see also Dkt. No. 77-56 at 15-16. As just discussed,
nothing in the record indicates concern about officer safety.
The balance of Defendants’ cursory arguments about why
Plaintiff purportedly needed to be handcuffed and placed in
the back of a police vehicle are unpersuasive. United States
v. Fiseku, 915 F.3d 863, 870 (2d Cir. 2018) (“[T]o satisfy
the reasonableness standard, officers conducting stops on less
than probable cause must employ the least intrusive means
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reasonably available to effect their legitimate investigative
purposes.”) (quoting Newton, 369 F.3d at 674).
2. Probable Cause
Defendants next argue that, regardless of when Plaintiff was
arrested, they had probable cause to arrest him for assault 15
within moments of arriving at 941 James Street. Dkt. No.
77-56 at 12-18.
This argument is also unconvincing, again given applicable
law and the facts of this case. “To assess probable cause,
a court considers only the facts ‘available to the officer at
the time of the arrest and immediately before it.’ ” Ashley,
992 F.3d at 136 (quoting Stansbury v. Wertman, 721 F.3d 84,
89 (2d Cir. 2013)). The parties largely agree on the basic
information known to the Responding Officers at the time
Plaintiff was handcuffed: 16 the 911 call notes, Plaintiff's
presence at the scene, and some blood on Plaintiff's lip. Dkt.
No. 77-56 at 13-14; Dkt. No. 85 at 14-15. The parties dispute
the factual contours of much of that information, however, as
well as its legal significance.
Defendants’ arguments regarding probable cause miss the
forest for the trees. When evaluating probable cause, the
Second Circuit has “consistently held, as relevant here, that
‘an officer may not disregard plainly exculpatory evidence.’
” Washington v. Napolitano, 29 F.4th 93, 107 (2d Cir. 2022)
(quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.
2006)). Defendants were repeatedly informed that the black
man who assaulted Mr. Jones was no longer present at the
scene. See supra Section II.B.2.a. Ms. Bailey told the 911
dispatcher that this third man had assaulted the victim and
had run off, but that the victim and his uncle were still there.
Id. The 911 call notes indicated that the suspect was “last
seen wearing” a green sweatsuit. Dkt. No. 90-1 at ¶ 18.
Ms. Bailey again told Officer Russell—as Officer Russell
stood next to Plaintiff, possibly within earshot of Officer
Cecile as he approached—that the assailant who hit Mr.
Jones was someone other than Plaintiff and had run off. See
supra Section II.B.2.a. Plaintiff separately told Responding
Officers that the assailant had run off, that his name was
Pete, and that he was a black man. Id. Ms. Goldych also
indicated that the man's name was Pete. Id. Defendants simply
ignore the existence of this third man, identified by multiple
eyewitnesses at the scene (and subsequently confirmed by
forensic evidence). See Dkt. No. 77-56 at 12-18; see also Dkt.
No. 77-50 at 123:24-124:9; Dkt. No. 85-11 at 28.
*19 Instead, Defendants argue that Plaintiff “was the only
individual on scene that matched Ms. Bailey's description.”
Dkt. No. 77-56 at 14. But a reasonable juror could readily
conclude that Plaintiff did not match Ms. Bailey's description.
As the parties agree, the 911 call notes described the assailant
as 25 to 35 years old, 6’3” tall, with a “med[ium] build,”
and “black male.” Dkt. No. 90-1 at ¶ 18; Dkt. No. 77-4
at 3. At the time, Plaintiff was 55 years old, 5’7” tall, and
weighed approximately 160 pounds. See, e.g., Dkt. No. 90-1
at ¶ 515. Defendants’ own observations and descriptions of
Plaintiff are consistent with these attributes. See, e.g., Dkt.
No. 77-6 at 2 (Officer Cecile's police report listing Plaintiff's
age as 55, height as 5’7,” and weight as 160); Dkt. No. 77-23
(Detective Brimmer's arrest report listing the same); Dkt. No.
77-8 at 4 (Officer Tolone's police report listing Plaintiff's
age as 55); Dkt. No. 77-16 at 4:11 (Officer Russell's BWC
footage showing her asking Plaintiff for his birthdate, prior
to his arrest, and being told the date in 1964), 18:26 (Officer
Russell's BWC footage showing her providing Plaintiff's
birthdate to another officer); Dkt. No. 77-25 at 7:5-11 (Officer
Cecile testifying that he thought Plaintiff was in his “[l]ate
50s or early 60s” “just going by looking at [him]”).
The only portion of Plaintiff's physical attributes that
“matched” Ms. Bailey's description of the suspect is that
Plaintiff was also “a black male.” Dkt. No. 90-1 at ¶ 18.
A reasonable juror could conclude that this fails to provide
reasonable suspicion to briefly detain Plaintiff, let alone
probable cause to arrest him. See, e.g., United States v. Walker,
965 F.3d 180, 186 (2d Cir. 2020) (“As we have repeatedly
said, ‘race, when considered by itself and sometimes even
in tandem with other factors, does not generate reasonable
suspicion for a stop.’ ”) (quoting United States v. Swindle,
407 F.3d 562, 569-70 (2d Cir. 2005)); Zuniga-Perez v.
Sessions, 897 F.3d 114, 124 (2d Cir. 2018) (“As the Supreme
Court has made abundantly clear, stopping and interrogating
people based solely on race or ethnicity violates the Fourth
Amendment.”) (citing United States v. Brignoni-Ponce, 422
U.S. 873, 885-86 (1975)); Dancy v. McGinley, 843 F.3d 93,
109 (2d Cir. 2016) (“[A] description of race and gender alone
will rarely provide reasonable suspicion justifying a police
search or seizure.”) (quoting Brown v. City of Oneonta, 221
F.3d 329, 334 (2d Cir. 2000)); Jenkins, 478 F.3d at 90 (“It
has long been established, however, that when that description
could have applied to any number of persons and does not
single out the person arrested, probable cause does not exist.”)
(collecting cases); see also supra n.13.
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Defendants also claim that Plaintiff's clothing “matched” the
description Ms. Bailey had provided, in that “his hat, shirt,
and pants all appeared to be different shades of green.” Dkt.
No. 77-56 at 13-14. This characterization is unsupported by
the BWC footage from the Responding Officers, which a
reasonable juror could conclude shows Plaintiff wearing a
grey hat, a white striped shirt, grey pants, and a puffy black
patterned jacket, none matching. See generally Dkt. Nos.
77-15, 77-16, 77-17. Defendants’ claim is also contradicted
by the assessment from the non-party officer who cataloged
Plaintiff's clothing as consisting of a “Baseball Hat (Grey,
green Bird Game logo)[,]” “Blue/green/white striped shirt[,]”
“Grey pants with belt[,]” and a “Black winter coat[.]” Dkt.
No. 77-10 at 3. In any event, the varied articles of clothing
Plaintiff wore on May 6, 2019 are not indisputably a “green
sweatsuit,” like Ms. Bailey had described. Dkt. No. 90-1 at ¶
18. And Ms. Bailey never described the suspect wearing any
hat at all, Dkt. No. 77-5, let alone a hat with prominent neon
lettering, like the one Plaintiff had on his head when Officer
Russell arrived, walked over to Plaintiff and Ms. Bailey, and
began speaking with them, Dkt. No. 77-16 at 0:00. Given this
factual record, Defendants have not established that Plaintiff's
clothing “matched” the description of the suspect such that
they are entitled to judgment as a matter of law.
*20 At best, Defendants’ argument is that they had probable
cause to arrest Plaintiff because some of his clothing may have
had some green. The Court finds this argument unpersuasive
given the Second Circuit's analysis in Dancy v. McGinley. In
that Section 1983 case, police officers received a description
of a robbery suspect as simply “[t]hin black male, brown
jacket.” 843 F.3d at 99. Minutes later, officers stopped, and
ultimately arrested, two teenagers near the crime scene, one
of whom was wearing a “camouflage-patterned coat, with
green, light green, and brown patches.” Id. at 100, 101. As
relevant here, the panel reasoned that there was not even
reasonable suspicion to stop this teenager, who “was indeed
thin, black, and male. But, unlike the description, he was
wearing a camouflage-patterned coat.” Id. at 109. The Circuit
went on to explain that “[w]hile such a discrepancy does not
necessarily defeat a finding of reasonable suspicion ... the
remaining description—thin, black, and male—is too vague
in the circumstances here to justify a stop of anyone meeting
it[.]” Id. (citations omitted) (collecting cases).
A reasonable juror could reach a similar conclusion here.
Plaintiff's age, height, and build were nothing like the physical
description Defendants received for the suspect. Further,
Plaintiff's clothes, in color and type, did not constitute a
“green sweatsuit,” and thus did not provide Defendants
reasonable suspicion to detain him, let alone probable cause
to arrest him. See Dufort v. City of New York, 874 F.3d 338,
350 (2d Cir. 2017) (“Viewing the evidence in the light most
favorable to the plaintiff, a reasonable jury could find that
the police arrested [plaintiff] based on little more than a
witness's statement that he wore a similar shirt to that of one of
[the victims’] attackers. Although a jury could also interpret
the evidence differently, the record presents genuine issues
of material fact that preclude the conclusion that there was
probable cause as a matter of law and that, instead, require a
trial on the merits.”); see also supra n.13.
Defendants’ argument regarding Plaintiff's presence at the
scene fares no better. See, e.g., United States v. Delossantos,
536 F.3d 155, 160 n.4 (2d Cir. 2008) (“[A] person's presence
at a crime scene or association with criminal suspects do
not, without more, amount to probable cause to arrest.”);
Dufort, 874 F.3d at 350 (“Police do not have particularized
probable cause to make an arrest simply because a suspect
has suspicious acquaintances, or happens to be at the scene
of a crime[.]”) (citation omitted); Curry v. City of Syracuse,
316 F.3d 324, 335 (2d Cir. 2003) (“[A]n individual's presence
in an area of expected criminal activity, standing alone, is
not enough to support a reasonable, particularized suspicion
that the person is committing a crime.”) (quoting Illinois v.
Wardlow, 528 U.S. 119, 124 (2000)). Plaintiff was present
in front of the apartment building where he lived and, as
detailed earlier, Defendants were repeatedly informed that the
assailant was another man who had already left the scene.
Mitchell v. City of New York, 841 F.3d 72, 78 (2d Cir. 2016)
(“[T]he failure to make a further inquiry when a reasonable
person would have done so may be evidence of lack of
probable cause.”) (quoting Colon v. City of New York, 455
N.E.2d 1248, 1250 (1983)).
As to the blood on Plaintiff's lip, in response to Officer
Russell's question, Ms. Bailey can be heard explaining that
“he was hit too in the whole altercation, you see that stick he
was hit with that.” Dkt. No. 77-55 at ¶ 12; see also Dkt. No.
77-16 at 0:05.
In sum, the totality of the circumstances proffered by
Defendants fails to establish an undisputed factual record on
which to grant summary judgment. Delossantos, 536 F.3d at
161. A reasonable juror could find that Defendants lacked
probable cause to arrest Plaintiff at approximately 7:34 p.m.
on May 6, 2019.
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3. Subsequent Information
Defendants go on to argue that, between handcuffing Plaintiff
and formally arresting him approximately five hours later,
they obtained additional information that provided them
probable cause to arrest Plaintiff. Dkt. No. 77-56 at 15-21.
Because a reasonable juror could conclude that Plaintiff
had been arrested at approximately 7:34 p.m., however,
this subsequent information is not relevant to analyzing
probable cause. See, e.g., Carruthers, ––– F.4th ––––, 2025
WL 2405451, at *6 (“To assess probable cause, a court
considers only the facts ‘available to the officer at the time
of the arrest and immediately before it.’ ”) (quoting Ashley,
992 F.3d at 136); Gonzalez v. City of Schenectady, 728
F.3d 149, 155 (2d Cir. 2013) (“The inquiry is limited to
‘whether the facts known by the arresting officer at the time
of the arrest objectively provided probable cause to arrest.’
”) (quoting Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir.
2006)). Nonetheless, for the avoidance of doubt, a reasonable
juror could conclude that none of the subsequent information
identified by Defendants, in combination with the earlier
information discussed above, provided probable cause to
formally arrest Plaintiff at approximately 1:00 a.m. on May
7, 2019.
a. Plaintiff's Continued Detention Prior to His
Interrogation
*21 Defendants first argue that the Responding Officers
“performed many investigative tasks” after handcuffing
Plaintiff at approximately 7:34 p.m., and that Detective
Brimmer “performed several investigative tasks” prior to
interrogating Plaintiff at approximately 10:30 p.m. Dkt. No.
77-56 at 15, 17.
With respect to the Responding Officers, however, the only
additional information Defendants identify is Officer Cecile's
subsequent call with Ms. Bailey. Id. at 15-16. During that
call, Ms. Bailey appears to have again stated that the man
who hit Mr. Jones was “wearing a green jump suit,” Dkt. No.
77-55 at ¶ 100, and was “like 35 to 40” years old, Dkt. No.
77-15 at 16:43, not the “[l]ate 50s or early 60s” that Officer
Cecile perceived Plaintiff to be, Dkt. No. 77-25 at 7:5-11.
Such information is largely consistent with—and duplicative
of—the information Responding Officers already had. See
supra Section IV.A.2. Thus, a reasonable juror could conclude
that Plaintiff still did not match the description that Ms. Bailey
provided.
Defendants further contend that the Responding Officers
undertook various investigative efforts at 941 James Street
after handcuffing Plaintiff. Dkt. No. 77-56 at 15-16. But
Defendants identify no relevant additional information from
these efforts. Id. Instead, Defendants take the position that
the Responding Officers had “ample” probable cause to arrest
Plaintiff because “[a]t the conclusion of th[eir] investigation,
nothing excluded Plaintiff as the assailant. In other words,
no eye-witness exonerated Plaintiff ... and there was no
available surveillance evidence.” Id. at 16. Defendants cite
no legal authority for the proposition that unless a person
is “exonerated” by an eyewitness or video evidence at the
scene of a crime, there is probable cause to arrest them. Cf.
Ricciuti, 124 F.3d at 130 (“This argument—an ill-conceived
attempt to erect a legal barricade to shield police officials
from liability—is built on the most fragile of foundations; it is
based on an incorrect analysis of the law and at the same time
betrays a grave misunderstanding of those responsibilities
which the police must have toward the citizenry in an open
and free society.”). Defendants identify nothing from these
investigative efforts that even suggested that Plaintiff had
committed a crime. Hawkins, 37 F.4th at 858.
With respect to Detective Brimmer's investigation prior to
Plaintiff's interrogation, Defendants similarly contend that
Detective “Brimmer did not discover any evidence that
suggested Plaintiff was not the assailant.” Dkt. No. 77-56
at 17. More importantly, Defendants again fail to identify
any additional information developed by Detective Brimmer
that indicated Plaintiff was the assailant. Id. Moreover, a
reasonable juror could conclude that the factual record belies
Defendants’ claim. The results of the canvas conducted by
Detective Brimmer and his colleague further indicated that
there had been three men drinking at the scene of the assault,
not just Plaintiff and Mr. Jones, and thus further supported the
possibility that Plaintiff was not the assailant. Dkt. No. 77-13
at 2; see also Dkt. No. 77-56 at 12.
b. Plaintiff's Interrogation
Defendants next argue that Plaintiff's statements during his
interrogation by the Detectives provided probable cause for
his arrest, and that “Plaintiff voluntarily waived his rights
and was not coerced into a confession.” Dkt. No. 77-56 at
18-21. 17
*22 “Challenges to the voluntariness of a confession are
based on two overlapping constitutional provisions: (1)
due process protections under the Fifth (or Fourteenth)
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Amendment, and (2) the Fifth Amendment privilege
against self-incrimination.” United States v. Mendonca,
88 F.4th 144, 163 (2d Cir. 2023) (citing Dickerson
v. United States, 530 U.S. 428, 433 (2000)). “As a
general matter, courts’ descriptions of statements as
‘compelled’ (invoking the text of the Self-Incrimination
Clause) and/or ‘involuntary’ (invoking, arguably, the Due
Process Clause) are often used interchangeably and the words
often treated synonymously.” United States v. Allen, 864
F.3d 63, 82 n.84 (2d Cir. 2017) (collecting cases). As a
practical matter, courts “look at the totality of circumstances
surrounding a Miranda waiver and any subsequent statements
to determine knowledge and voluntariness.” United States v.
Taylor, 745 F.3d 15, 23 (2d Cir. 2014) (citation omitted). “To
be effective, a waiver of a defendant's Miranda rights must be
both knowing and voluntary.” United States v. LaPorte, 779
F. App'x 63, 65 (2d Cir. 2019) (citing United States v. Plugh,
648 F.3d 118, 127 (2d Cir. 2011)). In the Miranda context,
“ ‘knowing’ means with full awareness of the nature of the
right being abandoned and the consequences of abandoning
it, and ‘voluntary’ means by deliberate choice free from
intimidation, coercion, or deception.” Taylor, 745 F.3d at
23 (quoting Plugh, 648 F.3d at 127). Even if a waiver is
knowing and voluntary, courts “must nonetheless determine
whether the [subsequent] inculpatory statements themselves
were voluntary.” Id. (citing Dickerson, 530 U.S. at 444).
Defendants make various factual arguments as to why “there
is no evidence that Plaintiff was not of sound mind or so
intoxicated as to render his confession involuntary.” Dkt. No.
77-56 at 19-20. Given the present factual record, however,
Defendants are not entitled to summary judgment on this
issue.
As an initial matter, Defendants’ own expert contradicts
Defendants’ position. Id. at 20. Dr. Weisman has repeatedly
opined that, over the course of the interrogation, “Mr. Adams
being under the combination of duress, fatigue, limitations of
his legal knowledge, and some level of alcohol intoxication,
became emotionally and cognitively distressed, resigned, and
compelled to offer the narrative of the crime being demanded
of him.” Dkt. No. 77-52 at 11-13.
Further, the parties agree that Plaintiff consumed in excess
of one hundred ounces of malt liquor in the hours before
his interrogation. Dkt. No. 77-55 at ¶¶ 410-11, 414, 420.
Plaintiff stated “I'm drunk” shortly after the interrogation
began, Dkt. No. 77-22 at 6:22, and repeatedly referenced
his drunkenness thereafter, Dkt. No. 90-1 at ¶ 522. Nearly
three hours after the interrogation began, Plaintiff's BAC,
as measured by Defendants, was still almost twice the legal
limit. Dkt. No. 77-24; see also supra n.4. Dr. Weisman opined
that, even at this lower BAC, “[m]otor function, speech, and
judgment are all severely affected” and that “[s]taggering,
and slurred speech, may be observed.” Dkt. No. 77-52 at
10. A reasonable juror could conclude that Plaintiff's body
movements, speech, and demeanor during the videotaped
interrogation demonstrate a significant level of intoxication,
and also that they are consistent with Dr. Weisman's opinion.
See generally Dkt. No. 77-21.
Defendants’ suggestion that Plaintiff's mental health during
the interrogation was not at issue because he did not
share any hallucinations with the Detectives proves too
much. Dkt. No. 77-56 at 20 (“[A]t no point during the
interview did Plaintiff indicate that he was hearing voices....
Similarly, at no point during the interview did Plaintiff
indicate that he could see things that the Defendant Detectives
could not see.”). Plaintiff's medical diagnoses at the time
included schizophrenia, depression, and alcoholism. Dkt.
No. 77-42 at 2-3; Dkt. No. 77-55 at ¶ 454. During the
interrogation, Plaintiff explained that he was not currently
working because he had a dual diagnosis and that his primary
care doctor, psychiatrist, and counselor were at the same local
healthcare provider. Dkt. No. 77-22 at 102:16-103:16. As for
Defendants’ argument that Plaintiff was determined not to be
incapacitated more than a year after the interrogation, that
does little to establish the voluntariness of Plaintiff's waiver
on May 6, 2019. Dkt. No. 77-55 at ¶¶ 390-98.
*23 Given this record, a reasonable juror could determine
that Plaintiff's Miranda waiver was not voluntary.
Even if Defendants had established that Plaintiff's waiver
was voluntary, they have not demonstrated that it was
also knowing. LaPorte, 779 F. App'x at 65. Defendants
do not appear to make any express arguments on this
second requirement for waiver. See, e.g., Dkt. No. 77-56
at 18 (“[A]s discussed below, Plaintiff voluntarily waived
his rights and was not coerced into a confession.”); id. at
25 (“[F]or the reasons stated above, Plaintiff voluntarily
waived his Miranda rights and his confession was freely
given.”). In any event, Dr. Weisman's opinions also
include his assessment that—when sober—Plaintiff's “basic
understanding of Miranda” ranks in the eighteenth percentile
of pretrial defendants and that Plaintiff “has deficits in
his Miranda understanding, particularly regarding legally
acceptable deceptive police practices as well as other specific
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aspects of remaining silent versus talking to the police.” Dkt.
No. 77-52 at 7, 8-9. Because “knowing” for purposes of
Miranda means “made with a full awareness of both the
nature of the right being abandoned and the consequences
of the decision to abandon it,” a reasonable juror could find
that Plaintiff's waiver was not knowing. United States v.
O'Brien, 926 F.3d 57, 73 (2d Cir. 2019) (quoting Berghuis v.
Thompkins, 560 U.S. 370, 382-83 (2010)).
A reasonable juror could also find Plaintiff's subsequent
confession, after extensive interrogation by the Detectives,
involuntary for similar reasons. See, e.g., Taylor, 745 F.3d at
24 (“An individual's mental state should be considered in the
voluntariness inquiry to the extent it allowed law enforcement
to coerce the individual.... It is clear, however, that when ‘a
person is unconscious or drugged or otherwise lacks capacity
for conscious choice,’ a confession cannot be voluntary.”)
(first citing Colorado v. Connelly, 479 U.S. 157, 164-65
(1986); then citing United States v. Salameh, 152 F.3d 88, 117
(2d Cir. 1998) (per curiam); and then quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 224 (1973)). Again, Defendants’
expert has repeatedly opined that, during the interrogation,
“Mr. Adams being under the combination of duress, fatigue,
limitations of his legal knowledge, and some level of alcohol
intoxication, became emotionally and cognitively distressed,
resigned, and compelled to offer the narrative of the crime
being demanded of him.” Dkt. No. 77-52 at 11-13. The Court
also notes that, prior to Plaintiff's confession, the Detectives
removed Plaintiff's phone from his person and then from the
room. Dkt. No. 77-22 at 27:6-20, 60:24-61:3. During the
subsequent break, and prior to Plaintiff's confession, Plaintiff
is visible in the video talking to himself and trying to open
the locked door keeping him in the interrogation room. Dkt.
No. 77-21b at 14:00-17:00; cf. Poventud v. City of New York,
750 F.3d 121, 145 & n.6 (2d Cir. 2014) (Lynch. J., concurring)
(“[W]e know that false confessions have been obtained by
pressures much less imposing than those to which [plaintiff]
was subjected.”) (collecting authorities).
*24 Because a reasonable juror could determine that
Plaintiff's confession was involuntary, based in part on his
intoxication, capacity, and the length and nature of his
detention and interrogation, the Court finds Defendants’
argument that the Detectives permissibly used “falsehoods”
during the interrogation to be somewhat beside the point. Dkt.
No. 90 at 7 (citing Frazier v. Cupp, 394 U.S. 731, 739 (1969)
(“The fact that the police misrepresented statements that [a
witness] had made is, while relevant, insufficient in our view
to make this otherwise voluntary confession inadmissible.”));
see also United States v. Caraballo, 282 F. App'x 910, 914
(2d Cir. 2008) (“We have held that ‘[w]hether a confession is
a product of coercion may only be determined after a careful
evaluation of the totality of all the surrounding circumstances,
including the accused's characteristics, the conditions of the
interrogation, and the conduct of law enforcement officials.’
”) (alteration in original) (quoting United States v. Anderson,
929 F.2d 96, 99 (2d Cir. 1991)).
For all of these reasons, 18 the Motion is denied as to
Plaintiff's federal and state claims for false arrest following
his handcuffing at approximately 7:34 p.m. on May 6, 2019.
B. Malicious Prosecution under Section 1983
“To prevail on a malicious prosecution claim under New
York law, a plaintiff must show ‘(1) the commencement
or continuation of a criminal proceeding by the defendant
against the plaintiff, (2) the termination of the proceeding in
favor of the accused, (3) the absence of probable cause for the
criminal proceeding[,] and (4) actual malice.’ ” Alexander,
132 F.4th at 158 (alteration in original) (quoting Kee, 12 F.4th
at 161-62). Section 1983 requires these same four elements,
“but it also imposes an additional one: ‘(5) a sufficient post-
arraignment liberty restraint to implicate the plaintiff's Fourth
Amendment rights.’ ” Id. (first quoting Rohman v. N.Y.C.
Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000); and then
citing Chiaverini v. City of Napoleon, 602 U.S. 556, 562
(2024)).
Defendants challenge only the probable cause element of
Plaintiff's Section 1983 claim for malicious prosecution.
Defendants argue that this claim fails because (i)
“the probable cause supporting Plaintiff's arrest was
overwhelming;” (ii) “[t]hat probable cause only increased in
the day following Plaintiff's arrest;” and (iii) the DA's Office
sought and obtained Plaintiff's indictment. Dkt. No. 77-56 at
21-24.
Defendants’ first argument is unpersuasive for the reasons
detailed previously. See supra Section IV.A. Given the current
record, a reasonable juror could find that Defendants did not
have probable cause to either arrest or prosecute Plaintiff
based on the events that transpired between approximately
7:30 p.m. on May 6, 2019, and 1:00 a.m. on May 7, 2019.
See, e.g., Walsh v. City of New York, 742 F. App'x 557,
562 (2d Cir. 2018) (“ ‘Probable cause, in the context of a
malicious prosecution, has ... been described as such facts
and circumstances as would lead a reasonably prudent person
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to believe the plaintiff guilty.’ ... Because a reasonable juror
could believe that probable cause did not exist for [plaintiff]’s
arrest, as noted above, we conclude that it follows that
a reasonable juror could also believe that probable cause
did not exist for [plaintiff]’s prosecution.”) (first alteration
in original) (citing Stansbury, 721 F.3d at 95). Summary
judgment is thus not appropriate on this ground.
*25 Defendants’ second argument relies on disputed facts
that are also not appropriately resolved at summary judgment.
Defendants contend that, later on May 7, 2019, Detective
Brimmer received additional information from Ms. Bailey
and Ms. Goldych. Dkt. No. 77-56 at 22-23. But, as detailed
earlier, the parties dispute what Ms. Bailey actually said to
Detective Brimmer. See supra Section II.B.4.a. Moreover,
Ms. Bailey's sworn statement suggests that she provided
significant exculpatory information to Detective Brimmer.
See, e.g., Dkt. No. 85-10 at ¶¶ 7-8, 10; Napolitano, 29 F.4th at
107 (“[W]e have also consistently held, as relevant here, that
‘an officer may not disregard plainly exculpatory evidence.’
”) (quoting Panetta, 460 F.3d at 395). Because there is a
genuine dispute of material fact as to what information Ms.
Bailey provided Detective Brimmer—including whether it
was exculpatory—such information is not an appropriate
basis on which to find the existence of probable cause as
a matter of law. Nor is the information that Ms. Goldych
apparently provided Detective Brimmer on May 7, 2019,
during his third attempt to speak with her. Dkt. No. 77-19
at 2-3. Given Ms. Goldych's intoxication, memory, and the
absence of a written statement from her, the information
attributed to her does not establish probable cause entitling
Defendants to judgment as a matter of law. See supra n.7.
Defendants’ third argument rests on the presumption of
probable cause created by a grand jury indictment. See, e.g.,
Werkheiser v. Cnty. of Broome, 655 F. Supp. 3d 88, 103
(N.D.N.Y. 2023) (“[I]ndictment by a grand jury creates a
presumption of probable cause that may only be rebutted
by evidence that the indictment was procured by ‘fraud,
perjury, the suppression of evidence or other police conduct
undertaken in bad faith.”) (quoting Savino v. City of New York,
331 F.3d 63, 72 (2d Cir. 2003)). The parties agree that such
a presumption applies in this case, but dispute whether the
factual record rebuts it. Dkt. No. 77-56 at 23; Dkt. No. 85 at
28-29.
A reasonable juror could conclude that the current factual
record rebuts such a presumption. Not only was the
prosecution against Plaintiff dismissed, senior prosecutors
in the DA's Office have indicated that the basis for the
prosecution was deeply flawed. Dkt. No. 85-7 at 1; Dkt.
No. 85-11 at 9. A reasonable juror could find, for example,
that Plaintiff's prosecution was initiated by (i) the arrest
report charging Plaintiff that Detective Brimmer prepared;
(ii) the allegedly false confession obtained by Detectives
Brimmer and Beauchine, see, e.g., Ekukpe v. Santiago, 823
F. App'x 25, 32 (2d Cir. 2020) (“A jury ‘may permissibly
find that a defendant initiated a prosecution where he filed
the charges or prepared an alleged false confession and
forwarded it to prosecutors.’ ”) (quoting Manganiello v.
City of New York, 612 F.3d 149, 163 (2d Cir. 2010));
Dufort, 874 F.3d at 353 (“The ‘initiation’ requirement is
met when the plaintiff can establish that police officers
forwarded statements to a prosecutor without sharing that
the statements were suspect.”) (citing Manganiello, 612 F.3d
at 163); and/or (iii) the purportedly false statements in the
police reports prepared by Detective Brimmer, Officer Cecile,
Officer Tolone, and Officer Russell, 19 see, e.g., Cameron v.
City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (“[G]enerally
in malicious prosecution actions alleging that a police officer
provided false information to a prosecutor, what prosecutors
do subsequently has no effect whatsoever on the police
officer's initial, potentially tortious behavior.”) (collecting
cases); Werkheiser, 655 F. Supp. 3d at 103 (“A defendant
could have initiated a prosecution ‘by creating material, false
information and forwarding that information to a prosecutor
or by withholding material information from a prosecutor.’ ”)
(first quoting Ying Li v. City of New York, 246 F. Supp. 3d 578,
605 (E.D.N.Y. 2017); additional citations omitted).
Moreover, Plaintiff is correct that a “jury examining Detective
Brimmer's police report alongside Ms. Bailey's statements
could conclude that Det. Brimmer fabricated what [Ms.]
Bailey told him to support, rather than contradict, Mr. Adams’
false confession.” Dkt. No. 85 at 27; see also Manganiello,
612 F.3d at 162 (“Like a prosecutor's knowing use of false
evidence to obtain a tainted conviction, a police officer's
fabrication and forwarding to prosecutors of known false
evidence works an unacceptable ‘corruption of the truth-
seeking function of the trial process.”) (quoting Ricciuti, 124
F.3d at 130); N.Y. Crim. Proc. Law § 60.50 (“A person may
not be convicted of any offense solely upon evidence of
a confession or admission made by him without additional
proof that the offense charged has been committed.”); N.Y.
Crim. Proc. Law § 70.10(1) (“[E]vidence is not legally
sufficient when corroboration required by law is absent.”).
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*26 The Court also agrees with Plaintiff that a
reasonable juror could conclude that the police reports from
the Responding Officers contained “false or misleading
information that wrongfully inculpated Mr. Adams and failed
to include key exculpatory information.” Dkt. No. 85 at 28;
see also Manganiello, 612 F.3d at 162 (“Where there is some
indication in the police records that, as to a fact crucial to
the existence of probable cause, the arresting officers may
have ‘lied in order to secure an indictment’ and ‘a jury could
reasonably find that the indictment was secured through bad
faith or perjury,’ the presumption of probable cause created
by the indictment may be overcome.”) (quoting Boyd v. City
of New York, 336 F.3d 72, 77 (2d Cir. 2003)); Werkhesier,
655 F. Supp. 3d at 104 (“Alternatively, the presumption ‘can
be overcome by a showing by claimant that the conduct of
the police deviated so egregiously from acceptable police
activity as to demonstrate an intentional or reckless disregard
for proper procedures.’ ”) (quoting Hill v. Melvin, No. 05-
cv-6645, 2006 WL 1749520, at *13 (S.D.N.Y. June 27,
2006)).
For instance, Officer Cecile's report states that Ms. “Bailey
stated that the suspect was an old black man.” Dkt. No. 77-6 at
5. But this assertion is contrary to the actual description of the
suspect contained in the 911 call notes, Dkt. No. 90-1 at ¶ 18
(indicating that Ms. Bailey stated the suspect was only 25 to
35 years old) and the similar description Ms. Bailey appears
to have provided to Officer Cecile during their subsequent
phone conversation, Dkt. No. 77-15 at 16:43 (Officer Cecile
clarifying “the guy who got knocked out was, like, in his mid
to late 20s, and it was, like, an older guy, like 35 to 40, that hit
him?”). Officer Cecile also noted in his report that the suspect
had been described as wearing “a green sweat suit,” while
Plaintiff was wearing “a grayish/teal puffy jacket and green
pants[.]” Dkt. No. 77-6 at 5. As detailed earlier, while there
is presently a factual dispute as to whether Plaintiff's pants
were green, Defendants do not contend that Plaintiff's jacket
was green. See supra Section IV.A.2 (Defendants arguing that
Plaintiff's “hat, shirt and pants all appeared to be different
shades of green”) (quoting Dkt. No. 77-56 at 14); see also
Dkt. No. 77-10 at 3 (report from non-party officer stating
that Plaintiff had a “Black winter coat”). Similarly, Officer
Tolone's report states that the suspect was wearing “a green
jump suit,” while Plaintiff “was wearing green pants and a
grey / green vest.” Dkt. No. 77-8 at 2. As also detailed earlier,
Defendants do not contend that Plaintiff was wearing a vest at
all. See supra Section IV.A.2; see also Dkt. No. 77-10 (report
from non-party officer listing Plaintiff's items of clothing,
none of which are a vest). Given all this, a reasonable juror
could find that Officers Cecile and Tolone fabricated portions
of their reports to align their descriptions of Plaintiff with that
of the suspect.
Additionally, Officers Cecile and Russell omitted any
mention of the exculpatory facts that Ms. Bailey, 20 Ms.
Goldych, and Plaintiff all indicated that a third man had
assaulted Mr. Jones and left the scene. Dkt. Nos. 77-6, 77-7;
see also Werkheiser, 655 F. Supp. 3d at 103; Napolitano, 29
F.4th at 107. For his part, Officer Tolone's report states only
that “when we initially arrived on scene Adams stated there
was another male that started a fight with Jones.” Dkt. No.
77-8 at 2.
*27 With respect to each Individual Defendant, then, a
reasonable juror could find that the indictment “was procured
by ‘fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith,’ ” or “that the conduct of
the police deviated so egregiously from acceptable police
activity as to demonstrate an intentional or reckless disregard
for proper procedures,” Werkheiser, 655 F. Supp. 3d at 104
(first quoting Savino, 331 F.3d at 72; and then quoting Hill,
2006 WL 1749520, at *13). Given the current factual record,
a reasonable juror could find that the presumption of probable
cause is rebutted. Hicks v. Marchman, 719 F. App'x 61, 65 (2d
Cir. 2018) (“[T]he presumption can be rebutted by showing
‘that the police witnesses have not made a complete and full
statement of facts either to the Grand Jury or the District
Attorney, that they have misrepresented or falsified evidence,
that they have withheld evidence or otherwise acted in bad
faith[.]’ ”) (second alteration in original) (quoting Colon, 455
N.E.2d at 1250-51). Accordingly, the Court denies the Motion
as to Plaintiff's Section 1983 claim for malicious prosecution
against the Individual Defendants. 21
C. Fabricated Evidence under Section 1983
In order to prevail on “a Section 1983 fabrication of evidence
claim, a plaintiff must demonstrate that ‘(1) [an] investigating
official (2) fabricat[ed] information (3) that is likely to
influence a jury's verdict, (4) forward[ed] that information to
prosecutors, and (5) the plaintiff suffer[ed] a deprivation of
life, liberty, or property as a result.” Ortiz v. Stambach, 137
F.4th 48, 67 (2d Cir. 2025) (alterations in original) (quoting
Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d
Cir. 2016)).
Defendants first argue that Plaintiff's fabricated evidence
claim is limited to his allegedly false confession and should
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thus be dismissed against the Responding Officers, “who
were not present for Plaintiff's interview and were not
involved in his confession.” Dkt. No. 77-56 at 25, Dkt. No. 90
at 8. The Court agrees with Plaintiff that this claim is not so
limited, and that “there are disputed issues of fact from which
a reasonable juror could find that” each of the Responding
Officers “fabricated inculpatory evidence [or] suppressed
exculpatory evidence to implicate [Plaintiff] wrongly.” Dkt.
No. 85 at 30; see also supra Section IV.B.
As to the confession, Defendants’ renewed argument
that Plaintiff voluntarily waived his Miranda rights and
voluntarily confessed remains unpersuasive for the reasons
previously set forth. Dkt. No. 77-56 at 25; see also supra
Section IV.A.3.b.
Defendants’ final argument that the Detectives did not know
Plaintiff's confession was false is similarly insufficient to
grant summary judgment on this claim. Dkt. No. 77-56
at 25-26. A reasonable juror could view the videotaped
interrogation of Plaintiff and conclude that the Detectives
knew Plaintiff's eventual confession was false because, for
example, Plaintiff was visibly intoxicated; Plaintiff denied
assaulting Mr. Jones nearly 200 times, Dkt. No. 85-2 at ¶ 570;
Plaintiff “became emotionally and cognitively distressed,
resigned, and compelled to offer the narrative of the crime
being demanded of him,” as Defendants’ expert opined after
viewing the videotaped interrogation, Dkt. No. 77-52 at
11-13; or, as Detective Brimmer noted in his police report,
because Plaintiff “provided several different versions about
what occurred,” Dkt. No. 77-19 at 2, some of which were
implausible, see, e.g., Dkt. No. 77-22 at 86:22-87:22 (Plaintiff
stating that he was able to hit Mr. Jones in the head three
of four times with a stick before Mr. Jones fell down);
id. at 100:8-21 (Plaintiff stating that Mr. Jones punched
him twice over the course of the day, both times on the
“same place” on his lip and Detective Brimmer responding
“[y]eah, he knows where to get you, man. He's got aim on
that thing, huh”). See also Ortiz, 137 F.4th at 62, 67-68
(“[T]he law does not require a plaintiff to prove that police
officers fabricated evidence or engaged in bad faith through
any particular type of evidence and, thus, a plaintiff may
do so entirely through circumstantial evidence.... ‘The jury,
of course, was not required to believe [the defendant's]
testimony denying knowledge. Issues relating to state of
mind, such as knowledge and intent, may be influenced
by assessments of credibility and often must be established
by circumstantial evidence.’ ”) (last alteration in original)
(quoting United States v. Ocampo-Guarin, 968 F.2d 1406,
1410 (1st Cir. 1992)). Moreover, if a jury were to believe Ms.
Bailey that Detective Brimmer fabricated various statements
he attributed to her in his police report, they could also
conclude that he did so knowingly.
*28 Accordingly, the Court denies the Motion as to
Plaintiff's Section 1983 claim for fabricated evidence against
the Individual Defendants. 22
D. Monell Claim
Section 1983 “does not impose vicarious liability on a
municipality for the actions of its employees.” Alexander, 132
F.4th at 160 (citing Friend v. Gasparino, 61 F.4th 77, 93 (2d
Cir. 2023)). Instead, “[t]o hold a [municipality] liable under
§ 1983 for the unconstitutional actions of its employees, a
plaintiff is required to plead and prove three elements: (1) an
official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” Lucente
v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (second
alteration in original) (first quoting Wray v. City of New York,
490 F.3d 189, 195 (2d Cir. 2007); and then citing Monell
v. Dep't. of Soc. Servs. of the City of New York, 436 U.S.
658, 690-91 (1978)). As to the first element, a plaintiff can
establish the existence of an official policy or custom in four
ways:
(1) a formal policy endorsed by the
municipality, ...; (2) actions directed
by the government's “authorized
decisionmakers” or “those who
establish governmental policy,” ...;
(3) a persistent and widespread
practice that amounts to a custom
of which policymakers must have
been aware, ...; or (4) a
“constitutional violation[ ] resulting
from [policymakers’] failure to train
municipal employees[.]”
Deferio v. City of Syracuse, 770 F. App'x 587, 589-90 (2d Cir.
2019) (final alteration added) (first citing Turpin v. Mailet,
619 F.2d 196, 199 (2d Cir. 1980); then quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 481 (1986); then citing
Turpin, 619 F.2d at 199; and then quoting City of Canton v.
Harris, 489 U.S. 378, 380 (1989)).
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Defendants first argue that Plaintiff's Monell claim should
be dismissed because there is no underlying constitutional
violation. Dkt. No. 77-56 at 26. Given that Plaintiff's
constitutional claims survive summary judgment, this
argument is unavailing. See supra Section IV.A-C.
Defendants next argue that the purportedly similar arrests
referenced in one paragraph of the Complaint do not establish
a Monell claim. Dkt. No. 77-56 at 27-28. Those alleged
instances appear to relate to excessive force and racial
profiling claims against non-party officers in the Syracuse
Police Department over a span of some years. Dkt. No.
1 at ¶ 61. In part because Plaintiff has not brought an
excessive force claim, the Court agrees with Defendants
that these alleged instances are insufficiently similar to the
constitutional deprivations Plaintiff allegedly suffered. See
Campo v. City of New York, No. 19-cv-04364, 2022 WL
970730, at *12 (E.D.N.Y. Mar. 31, 2022) (“A plaintiff may
also plead the existence of de facto customs or policies
‘by citing to complaints in other cases that contain similar
allegations.’ ”) (quoting Gaston v. Ruiz, No. 17-cv-1252, 2018
WL 3336448, at *6 (E.D.N.Y. July 6, 2018)). As Defendants
correctly point out in reply, Plaintiff also has not opposed the
Motion on this narrow issue. Dkt. No. 90 at 8-9; see also
Jackson, 766 F.3d at 195. Accordingly, any Monell claim
based on these dissimilar cases or racial profiling is dismissed.
*29 For whatever reason, Defendants do not squarely
address the core of Plaintiff's Monell claim. Compare
Dkt. Nos. 77-56, 90, with Dkt. No. 1 at ¶¶ 52-60
(alleging, inter alia, that Defendant City “has a policy,
custom, practice and pattern of conduct in place that
enables its agents and employee[ ] police officers to act
with deliberate indifference to the constitutional rights
of individuals[,]” including “inadequate guidelines for
conducting interrogations, obtaining false confessions and
corroborating false confessions with eye witness accounts”).
Plaintiff's opposition to the Motion argues that Defendant
City was deliberately indifferent to his constitutional
rights by failing “to supervise and/or train its officers to
undertake constitutionally lawful detentions, interrogations,
and practices to forego the fabrication of evidence.” Dkt. No.
85 at 31-33 (citing Dkt. No. 1 ¶¶ 53, 54, 58).
“A municipality's culpability for a deprivation of rights
is at its most tenuous where a claim turns on a failure
to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011)
(citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (1985)
(plurality opinion)). The Second Circuit has set forth the
following requirements before a municipality's failure to train
or supervise constitutes deliberate indifference:
“First, the plaintiff must show that a policymaker knows
‘to a moral certainty’ that her employees will confront a
given situation.” ... “Second, the plaintiff must show that
the situation either presents the employee with a difficult
choice of the sort that training or supervision will make less
difficult or that there is a history of employees mishandling
the situation.” ... “Finally, the plaintiff must show that
the wrong choice by the city employee will frequently
cause the deprivation of a citizen's constitutional rights.” ...
“In addition, at the summary judgment stage, plaintiffs
must ‘identify a specific deficiency in the city's training
program and establish that that deficiency is closely related
to the ultimate injury, such that it actually caused the
constitutional deprivation.’ ”
Jenkins, 478 F.3d at 94 (first quoting Walker v. City of New
York, 974 F.2d 293, 297, 298 (2d Cir. 1992); and then quoting
Green v. City of New York, 465 F.3d 65, 81 (2d Cir. 2006)).
Regardless of whether Plaintiff has satisfied the first three
of these requirements, his assertions with respect to the
Responding Officers’ training lack the necessary factual
detail and are too conclusory. Dkt. No. 85 at 31. He fails to
identify any “specific deficiency in the city's training program
and establish that that deficiency is closely related to the
ultimate injury[,]” Green, 465 F.3d at 81. Accordingly, any
Monell claim based on the training of the Responding Officers
is dismissed. For similar reasons, any Monell claim based
on training related to fabricated evidence generally is also
dismissed.
Plaintiff's arguments as to the training the Detectives received
warrant a different outcome however. Plaintiff contends that
the Detectives received inadequate “training on how to avoid
false confessions” and “improperly interrogated” Plaintiff,
leading to his allegedly false confession. Dkt. No. 85 at 33.
Unlike with the Responding Officers and fabricated evidence
more generally, Plaintiff also sets forth various facts regarding
the Detectives’ interrogation training, facts which Defendants
largely do not deny. Dkt. No. 90-1 at ¶¶ 523-28, 531-33,
587-88.
Additionally, the Report that Plaintiff includes in his
opposition to the Motion states that a deputy police chief at
the Syracuse Police Department “was able to explain there
is case law which supports interviewing a person who is
intoxicated. The only limitation to this is if the person being
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interviewed is intoxicated to the point of being in a manic
state.” Dkt. No. 85-11 at 9. The Report further states that “it
is a matter of training that detectives are trained on the fact
that interviewing an intoxicated person is lawful, unless in this
manic state.” Id. The Report indicates that neither Detective
thought Plaintiff was “excessively intoxicated” during the
interview on May 6, 2019. Id. at 11, 12. Seemingly because
of such training, the Report determined that “[t]herefore, the
actions by [the D]etectives during that interview were lawful
and proper.” Id. 9.
*30 The Report went on to conclude that Plaintiff's “claim
that he was arrested and charge[d] for a crime he did not
commit is true[,]” and that while Plaintiff was charged “due
to his own admission[,]” “[t]he interview conducted by Det.
Beauchine and then Det. Brimmer was lawful and proper.
There was no violation of any rules and regulations by
Det. Beauchine or Det. Sgt. Brimmer, or any officer.” Id.
at 12. 23 Following that conclusion are signatures for the
chief of police, the first deputy chief, a bureau chief, a
supervisor, and the investigating sergeant. Id. at 13. Jones
v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012)
(“To establish deliberate indifference a plaintiff must show
that a policymaking official was aware of constitutional
injury, or the risk of constitutional injury, but failed to
take appropriate action to prevent or sanction violations of
constitutional rights.”); Donovan v. Norwich City Sch. Dist.,
No. 19-cv-1638, 2022 WL 623904, at *11 (N.D.N.Y. Mar.
3, 2022) (“An official's title, though not dispositive of his
authority to make policy, is relevant for the interferences
fairly to be drawn therefrom.”) (quoting Rookard v. Health &
Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)).
Drawing all reasonable inferences in Plaintiff's favor for
purposes of summary judgment, a reasonable juror could
find the requirements for deliberate indifference satisfied
with respect to the Detectives’ training for interrogating
intoxicated individuals. First, the apparent existence of this
very training reflects “a moral certainty” that detectives
will need to interview such individuals. Jenkins, 478 F.3d
at 94 (citation omitted). Second, Detective Brimmer's own
testimony suggests that interviewing intoxicated individuals
presents a “difficult choice.” Id. (citation omitted); Dkt.
No. 77-49 at 25:16-24 (Detective Brimmer testifying with
respect to intoxication and mental capacity during custodial
interviews that “I can't think of any exact incident where
that has occurred but I do understand how, you know,
severe intoxication or, you know, severe mental health where
someone's having a schizophrenic outbreak, or something to
that effect, is certainly going to affect what they're telling
us. And it would be a judgment call and we likely would not
interview that person if they're under extreme intoxication or
having an emotional and/or mental health crisis.”) (emphasis
added). Third, Defendants’ own expert indicates that the
“wrong choice” can result in a false confession, and thus a
deprivation of constitutional rights. Jenkins, 478 F.3d at 94
(citation omitted); Dkt. No. 77-52 at 11-13; see also Dkt. No.
85-7 at 1 (“The district attorney said the case shows police and
prosecutors need better training in identifying the dynamics
of false confessions. ‘While it seems counterintuitive that
someone would confess to something they did not do, it
happens,’ [DA] Fitzpatrick said. ‘And in this case, I hope
all involved analyze the root causes of why this happened.
[’]”). Finally, the Report identifies a “specific deficiency
in the city's training program,” Jenkins, 478 F.3d at 94
(citation omitted), in that the only limitation on interrogating
intoxicated individuals appears to be when they are “in a
manic state,” 24 Dkt. No. 85-11 at 9.
*31 At bottom, Plaintiff contends that the Detectives’
training caused them to violate his constitutional rights, by
interrogating him while he was intoxicated and coercing
him into providing a false confession. Plaintiff may well
ultimately fail to prove such a claim. See, e.g., Outlaw v. City
of Hartford, 884 F.3d 351, 373 (2d Cir. 2018) (“[D]eliberate
indifference is a stringent standard of fault.”) (alteration in
original) (quoting Connick, 563 U.S. at 61). But he has
done enough to survive summary judgment—particularly
in the absence of more specific argument from Defendants
regarding deliberate indifference. According, the Motion is
denied as to Plaintiff's Monell claim based on the Detectives’
interrogation training.
E. Negligent Supervision and Retention under New
York law
In general, “[t]o state a claim for negligent supervision or
retention under New York law, in addition to the standard
elements of negligence, a plaintiff must show[, inter alia,] (1)
that the tort-feasor and the defendant were in an employee-
employer relationship ...; [and] (2) that the employer ‘knew
or should have known of the employee's propensity for
the conduct which caused the injury’ prior to the injury's
occurrence[.]” Ehrens v. Lutheran Church, 385 F.3d 232,
235 (2d Cir. 2004) (first citing D'Amico v. Christie, 518
N.E.2d 896, 901-02 (1987); and then quoting Kenneth
R. v. Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d
791, 793 (N.Y. App. Div. 1997)). Additionally, “[w]hen a
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negligence claim is asserted against a municipality or its
employees, the threshold inquiry is ‘whether the municipal
entity was engaged in a proprietary function or acted in a
governmental capacity at the time the claim arose.’ ” Velez
v. City of New York, 730 F.3d 128, 134 (2d Cir. 2013)
(quoting Applewhite v. Accuhealth, Inc., 995 N.E.2d 131,
134 (2013)). “Providing police protection has long been
recognized as a quintessential governmental function” and
when “a municipality undoubtedly acts in a governmental
capacity, a plaintiff may not recover without proving that the
municipality owed a ‘special duty’ to the injured party.” Id. at
135 (citing Valdez v. City of New York, 960 N.E.2d 356, 592
(2011)).
Defendants argue, inter alia, that this negligence claim
should be dismissed (i) against the Individual Defendants
because they were all employees and cannot be held liable
as an employer; and (ii) against Defendant City because its
employees were acting in the scope of their employment as
police officers. Dkt. No. 77-56 at 28-30. Plaintiff provides
no persuasive response. Dkt. No. 85 at 33-34. The Court
also notes that Plaintiff offers no evidence regarding any
of the Individual Defendants’ “propensity for the conduct
which caused the injury,” Ehrens, 385 F.3d at 235 (citation
omitted), nor any evidence that Defendant City owed him “a
special relationship beyond the duty that is owed to the public
generally,” Velez, 730 F.3d at 135. Accordingly, the Court
grants the Motion as to Plaintiff's tenth claim.
F. Qualified Immunity for the Individual Defendants
Defendants argue that (i) the Individual Defendants are
entitled to qualified immunity on Plaintiff's false arrest
and malicious prosecution claims because of the collective
knowledge doctrine and because of “plausible instructions
from a superior officer;” (ii) the Individuals Defendants are
entitled to qualified immunity on Plaintiff's pre-interrogation
detention because the multi-hour detention was “objectively
reasonable;” (iii) the Individual Defendants are entitled to
qualified immunity because they had arguable probable cause
to arrest Plaintiff; and (iv) the Detectives are entitled to
qualified immunity with respect to Plaintiff's confession
because “there is no evidence that Plaintiff was not of
sound mind or so intoxicated as to render his confession
involuntary[.]” Dkt. No. 77-56 at 30-38. Defendants do not
appear to contend that they are entitled to qualified immunity
as to the balance of Plaintiff's fabricated evidence claim. See
id.
*32 “Qualified immunity attaches when an official's
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” White v. Pauly, 580 U.S. 73, 78-79 (2017)
(per curiam) (citation modified). The application of qualified
immunity requires the Court to undertake a two-pronged
inquiry: whether “(1) ... the official violated a statutory
or constitutional right, and (2) ... the right was ‘clearly
established’ at the time of the challenged conduct.” Jones
v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020) (alterations in
original) (quoting Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d
Cir. 2016)). Under the “clearly established” prong, the law
does not require “a case directly on point,” but “existing
precedent must have placed the statutory or constitutional
question beyond debate.” Id. (citing Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011)); see, e.g., Golino v. City of New
Haven, 950 F.2d 864, 870 (2d Cir. 1991) (“The right not
to be arrested or prosecuted without probable cause has, of
course, long been a clearly established constitutional right.”);
Ricciuti, 124 F.3d at 128, (“The right to be free from arrest
or prosecution in the absence of probable cause is a long
established constitutional right.”); Weaver v. Brenner, 40 F.3d
527, 533-34 (2d Cir. 1994) (“It is clear that [in 1989] ...
a criminal suspect could not lawfully be compelled to be
a witness against himself.... It was also clearly established
in 1989 that police could not lawfully coerce incriminating
statements from an in-custody criminal suspect.”); Zahrey
v. Coffey, 221 F.3d 342, 345 (2d Cir. 2000) (“We hold that
there is a constitutional right not to be deprived of liberty
as a result of the fabrication of evidence by a government
officer acting in an investigatory capacity .... [and] that this
right was clearly established in 1996[.]”); Morse v. Fusto,
804 F.3d 538, 541 (2d Cir. 2015) (“[T]he actions of the
defendants upon which [plaintiff] bases his claims were
the knowing creation of false or misleading evidence by a
government officer acting in an investigative capacity. We
have held that such activity by a government official qualifies
as an unconstitutional deprivation of the victim's rights.
This right was, moreover, clearly established at the time of
the defendants’ conduct.”); Horn v. Adger, Nos. 24-1034,
24-1038, 2025 WL 1618761, at *3 (2d Cir. June 9, 2025)
(summary order) (“On appeal, the Detectives do not contest
our clearly established caselaw holding that police officers are
liable under § 1983 for ‘creat[ing] false information likely to
influence a jury's decision and forward[ing] that information
to prosecutors.’ ”) (alterations in original) (citation omitted).
“Courts have discretion to decide the order in which to engage
these two prongs.” Tolan v. Cotton, 572 U.S. 650, 656 (2014)
(citation omitted).
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At this stage, the Court need only address the “constitutional
violation” prong. As detailed above, whether any Defendant
violated Plaintiff's constitutional rights depends on numerous
disputed issues of material fact. The parties dispute, for
example, when Plaintiff's detention ripened into an arrest, see
supra Section IV.A.1; whether the Individual Defendants had
probable cause to arrest Plaintiff prior to his interrogation, see
supra Section IV.A.2-3.a; the extent of Plaintiff's intoxication
during the interrogation, as well as the voluntariness and
veracity of his statements, see supra Section IV.A.3.b;
and whether the Individual Defendants improperly initiated
Plaintiff's prosecution, see supra Section IV.B. Such factual
disputes preclude a finding of qualified immunity at this stage.
See, e.g., Dufort, 874 F.3d at 343 (“We conclude that the
district court's grant of summary judgment as to [plaintiff]’s
false arrest and malicious prosecution claims was premature,
because disputed questions of material fact remain regarding
key aspects of the criminal investigation and subsequent
prosecution. We further conclude that those same questions
of material fact preclude a grant of qualified immunity at the
summary judgment stage.”).
The Court reaches the same conclusion with respect to
Defendants’ arguments regarding reliance on “plausible
instructions” from a superior officer and arguable probable
cause. As to the former, the limited record evidence cited by
Defendants is insufficient to establish, as a matter of law, that
such instructions were given. Dkt. No. 77-55 at 34-35. In
any event, as the authority on which Defendants rely makes
clear, id. at 35, even if such instructions were given, that does
not end the inquiry. See Anthony v. City of New York, 339
F.3d 129, 138 (2d Cir. 2003) (“Plausible instructions from a
superior or fellow officer support qualified immunity where,
viewed objectively in light of the surrounding circumstances,
they could lead a reasonable officer to conclude that the
necessary legal justification for his actions exists (e.g.[,]
a warrant, probable cause, exigent circumstances).”) (first
quoting Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir.
2000); additional citations omitted). And the disputed factual
record precludes reaching a determination with respect to this
inquiry.
As to arguable probable cause, the current factual record also
precludes summary judgment. See, e.g., Napolitano, 29 F.4th
at 105 (“A police officer has arguable probable cause ‘if either
(a) it was objectively reasonable for the officer to believe
that probable cause existed, or (b) officers of reasonable
competence could disagree on whether the probable cause test
was met.’ ”) (quoting Figueroa v. Mazza, 825 F.3d 89, 100 (2d
Cir. 2016)); Jenkins, 478 F.3d at 88 (“[U]nder both New York
and federal law, summary judgment dismissing a plaintiff's
false arrest claim is appropriate if the undisputed facts indicate
that the arresting officer's probable cause determination was
objectively reasonable.... If, however, on the undisputed
facts the officer would be unreasonable in concluding that
probable cause existed, or if the officer's reasonableness
depends on material issues of fact, then summary judgment
is inappropriate for both New York and federal false arrest
claims.”) (first citing Cerrone v. Brown, 246 F.3d 194, 199
(2d Cir. 2001); and then citing Dillard v. City of Syracuse, 381
N.Y.S.2d 913, 915 (N.Y. App. Div. 1976)).
*33 In sum, the disputed factual record precludes summary
judgment based on qualified immunity. See, e.g., Eaton
v. Estabrook, 144 F.4th 80, 89 (2d Cir. 2025) (“In the
qualified immunity context, ‘[p]re-trial resolution of the
defense [of qualified immunity] ... may be thwarted by a
factual dispute.’ ... ‘Any disputed questions of material fact
—such as the acts of the defendant and their effects on the
plaintiff—are to be determined by the factfinder.’ ”) (final
alteration added) (first quoting Warren v. Dwyer, 906 F.2d 70,
74 (2d Cir. 1990); and then quoting Walker v. Schult, 45 F.4th
598, 617 (2d Cir. 2022)). Given the current factual record,
Defendants have not carried their burden to demonstrate that
no rational juror could conclude that they violated Plaintiff's
constitutional rights. Coollick v. Hughes, 699 F.3d 211, 219
(2d Cir. 2012) (“Thus, a decision dismissing a claim based on
qualified immunity at the summary judgment stage may only
be granted when a court finds that an official has met his or
her burden demonstrating that no rational jury could conclude
‘(1) that the official violated a statutory or constitutional right,
and (2) that the right was clearly established at the time of the
challenged conduct.’ ”) (quoting al-Kidd, 563 U.S. at 735). 25
G. John Does 1-100
Defendants also argue that because Plaintiff has not amended
his Complaint, the Doe Defendants should be dismissed
without prejudice. Dkt. No. 77-56 at 30. Plaintiff responds
with a single sentence “reassert[ing] his request to amend the
complaint to include additional defendants” and no authority
in support of such a request. Dkt. No. 85 at 34.
Almost two years ago, Magistrate Judge Katz considered
and denied Plaintiff's request to amend the Complaint to
include two additional defendants. Dkt. No. 64. Since that
time, Plaintiff has not sought a review of that decision and has
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not undertaken any further efforts to amend the Complaint.
Plaintiff now offers no authority and no new arguments in
support of his cursory request. Plaintiff's renewed request is
denied for the reasons set forth by Magistrate Judge Katz,
Dkt. No. 64, and all claims against the Doe Defendants are
dismissed, see, e.g., Kaczmarek v. City of Schenectady, No.
10-cv-1193, 2013 WL 5506276, at *2 (N.D.N.Y. Oct. 4, 2013)
(“Because plaintiffs have failed to timely identify and serve
the John Doe defendants, plaintiffs’ claims against both John
Doe defendants are dismissed.”).
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that Defendants’ motion for summary judgment,
Dkt. No. 77, is GRANTED in part and DENIED in part,
as set forth in Section IV of this Memorandum-Decision and
Order; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-
Decision and Order on the parties in accordance with the
Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2772081
Footnotes
1 The Complaint incorrectly spells Officer Tolone's last name as “Toltone.” Dkt. No. 77-55 at 1 n.1. Citations
to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system, and not
the document's internal pagination.
2 This case was reassigned to the undersigned on January 19, 2023. Dkt. No. 34.
3 Unless otherwise indicated, the following facts have been asserted by the parties in their statements of
material facts with accurate record citations, and expressly admitted or not denied with a supporting record
citation in response. See N.D.N.Y. L.R. 56.1. The Court has also considered the parties’ other submissions
and attached exhibits. See generally Dkt. Nos. 77, 85-86, 90.
4 A person with a BAC of 0.08 percent is considered intoxicated per se under New York's Vehicle and Traffic
Law (“VTL”). See N.Y. Veh. & Traf. Law § 1192(2); see also Dalmasi v. City of Mount Vernon, No. 13-cv-8672,
2014 WL 6645827, at *1 n.3 (S.D.N.Y. Nov. 24, 2014) (noting that a court may “take judicial notice of the
VTL in deciding” summary judgment) (citations omitted).
5 During his deposition, Office Cecile characterized this statement as “police banter.” Dkt. No. 77-47 at 74:13-17
(“Q. So, it's definitely him doesn't mean -- it doesn't mean that you were sure it was him? A. Right. That's
police banter. I wasn't sure.”).
6 Officer Russell testified during her deposition that she already knew Plaintiff from “[p]rior incidents,” none
involving violence. Dkt. No. 77-46 at 104:16-25.
7 Seemingly in the early morning of May 7, 2019, Detective Brimmer again tried to speak with Ms. Goldych, who
“still seemed too intoxicated” and “could speak a little but was talking about outlandish things not related to
this incident.” Dkt. No. 77-19 at 3. When Detective Brimmer spoke with Ms. Goldych a third time, at some point
later on May 7, 2019, she “seemed much less intoxicated.” Id. While in that state, Ms. Goldych apparently
told Detective Brimmer, inter alia, that she was “drunk[ ] at the time of the incident and does not remember all
of the details” and that “she was unaware that Jones had been injured.” Id. Detective Brimmer did not take a
written statement from Ms. Goldych. Id.; see also Dkt. No. 77-30 at 2 (non-party detective's report stating that
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when he subsequently spoke with Ms. Goldych “[i]t should be noted throughout our conversation V. Goldych
referred to ‘spiritual incidents’ as well as being visited by ‘higher powers’ on several different occasions. She
often had a difficult time organizing her thoughts and at times did not directly answer questions. Based upon
her actions and statements her mental health status is unknown to me at this time.”).
8 Dr. Weisman further opined that “[t]o help determine typical reductions in human BAC, clinical services often
utilize a declination rate of 0.015% per hour.” Dkt. No. 77-52 at 11. This suggests that Plaintiff had a higher
BAC several hours prior, when Detective Brimmer read Plaintiff his Miranda rights. Dkt. No. 77-55 at ¶ 154.
Presumably, the corresponding physiological effects identified by Dr. Weisman would have been more severe
at that time and during the interrogation.
9 The transcript Defendants provided inaccurately characterizes Plaintiff's statement as “[m]umbles
incoherently.” Dkt. No. 77-22 at 105:7.
10 Members of the Onondaga County District Attorney's Office (“DA's Office”) have since identified deficiencies
with the process that led to this result. Dkt. No. 85-7 at 1 (“ ‘While it seems counterintuitive that someone
would confess to something they did not do, it happens,’ [Onondaga County District Attorney (“DA”) William]
Fitzpatrick said. ‘And in this case, I hope all involved analyze the root causes of why this happened. We have
done that in my office.’ .... ‘I have discussed the case with the prosecutor initially assigned and pointed out
mistakes that were made,’ Fitzpatrick said. ‘The prosecutor who presented it to the grand jury and missed
several red flags is no longer with the office.’ ”); Dkt. No. 85-11 at 9 (Syracuse Police Department report stating
that, according to Onondaga County Assistant District Attorney (“ADA”) Joe Coolican, “when the grand jury
proceeding occurred, there was no identification process done by the Assistant District Attorney overseeing
the case. Therefore, the witness [Ms. Bailey] was unaware Mr. Adams was the one who was in custody and
accused of these crimes.”).
11 From the record before the Court, it is not clear whether these charges were ever increased. Compare Dkt.
No. 77-33, with Dkt. No. 77-38.
12 The Complaint also contains various requests for relief. See, e.g., Dkt. No. 1 at ¶¶ 105-114; Dkt. No. 77-56
at 9 n.2.
13 To the extent that the Complaint states a claim for false arrest prior to this time, any such claim is dismissed
as abandoned, as is any claim for declaratory judgment. See Jackson v. Fed. Exp., 766 F.3d 189, 195 (2d
Cir. 2014) (“[A] partial response arguing that summary judgment should be denied as to some claims while
not mentioning others may be deemed an abandonment of the unmentioned claims.”); see also Dkt. No. 1
at ¶¶ 101-04; Dkt. No. 77-56 at 9 n.2.
14 It also contradicts a position that Defendants took in support of their prior dispositive motion, wherein they
argued that Plaintiff's “alleged drunken confession – insofar as it could possibly be construed as ‘false’ – did
not result in Plaintiff's loss of liberty as he had already been arrested and confined.” Dkt. No. 7-2 at 16.
15 Defendants do not contend that they had probable cause to arrest Plaintiff for any other offense. Dkt. No.
77-56 at 14.
16 The parties further agree that the “collective or imputed knowledge doctrine” applies. See, e.g., Dkt. No.
77-56 at 12 (“[T]he relevant inquiry is whether the collective knowledge of the Syracuse Police Department
(‘SPD’) constituted probable cause, not whether a specific arresting officer had probable cause.”); Dkt. No.
85 at 14. Under that doctrine, an arrest “is permissible where the actual arresting ... officer lacks the specific
information to form the basis for probable cause ... but sufficient information to justify the arrest ... was known
by other law enforcement officials initiating ... the investigation” and “the other officers ‘have communicated
the information they possess individually, thereby pooling their collective knowledge to meet the probable
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cause threshold.’ ” Brown v. City of New York, 798 F.3d 94, 99 (2d Cir. 2015) (alterations in original) (first
quoting Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007); and then quoting United States v. Chavez,
534 F.3d 1338, 1345 (10th Cir. 2008)).
17 Defendants do not dispute that Miranda warnings were necessary. See id.; Jackson v. Conway, 763 F.3d
115, 136 (2d Cir. 2014) (“The Miranda safeguards apply only to ‘custodial interrogations.’ ”).
18 Defendants’ argument that no Individual Defendants was personally involved in all of the events resulting in
Plaintiff's arrest and monthslong detention is unpersuasive. Dkt. No. 77-56 at 13, 21 n.6. As detailed above,
Plaintiff has sufficiently established the personal involvement of every Individual Defendant in the events
giving rise to his false arrest claims. See, e.g., Legree v. City of Waterbury, No. 22-cv-00659, 2024 WL
3964944, at *7 (D. Conn. Aug. 28, 2024) (“However, ‘personal involvement’ in an arrest is not limited to
officers who were physically involved in taking someone into custody. Courts in this Circuit have upheld false
arrest liability for non-arresting officers.”) (collecting cases).
19 Each report was affirmed under penalty of perjury. See, e.g., Dkt. No. 77-19 at 2-3; Dkt. No. 77-6 at 5; Dkt.
No. 77-8 at 2; Dkt. No. 77-7 at 2.
20 Defendants contend that Officer Russell was “unaware of the fact” that Ms. Bailey was still on the scene
when Officer Russell arrived. Dkt. No. 77-56 at 14. This assertion is contradicted by Officer Russell's BWC
footage. See Dkt. No. 77-16 at 0:01 (Officer Russell responding to Ms. Bailey's statement that “he got into a
fight with somebody, the other dude ran off, but he got knocked out” with “the other dude knocked out?”); id.
at 11:27 (Officer Russell stating “I wish we would have got those people that were ...” and gesturing towards
the sidewalk in the direction Ms. Bailey and her siblings had walked); id. at 17:21 (Officer Russell stating “did
anyone contact those people back,” presumably again in reference to Ms. Bailey and her siblings).
21 To the extent that the Complaint states a distinct claim for malicious prosecution against Defendant City
individually, or pursuant to New York law, any such clam is dismissed as abandoned. Compare Dkt. No.
77-56 at 22 & n.7, 24, with Dkt. No. 85 at 23-30; see also Jackson, 766 F.3d at 195. Plaintiff's separate Monell
claim against Defendant City is addressed further below. See infra Section IV.D.
22 To the extent that the Complaint states a distinct claim for fabricated evidence against Defendant City
individually, any such clam is dismissed as abandoned. Compare Dkt. No. 77-56 at 26, with Dkt. No. 85 at
30; see also Jackson, 766 F.3d at 195. Plaintiff's separate Monell claim against Defendant City is addressed
next. See infra Section IV.D.
23 This portion of the Report makes clear that Detective Brimmer was subsequently promoted to Detective
Sergeant, a position in which he supervises other detectives. See also Dkt. No. 77-49 at 12:20-13:1.
24 It is unclear from the current record how this limitation operates in practice, given that alcohol is a depressant
while “[m]ania is a condition in which you have a period of abnormally elevated, extreme changes in your
mood or emotions, energy level or activity level. This highly energized level of physical and mental activity and
behavior must be a change from your usual self and be noticeable by others.” Mania, CLEVELAND CLINIC,
https://my.clevelandclinic.org/health/diseases/21603-mania (last visited September 29, 2025). Neither the
Report nor the Motion identify the referenced caselaw. See generally Dkt. Nos. 77, 85-11, 90.
25 Because factual disputes preclude summary judgment on the first prong of the qualified immunity inquiry, the
Court makes no determination as to the second prong, as noted earlier. Id. at 219-220; see also Linton v.
Zorn, 135 F.4th 19, 32 (2d Cir. 2025) (“But under either prong, courts may not resolve genuine disputes of
fact in favor of the party seeking summary judgment.”) (quoting Tolan, 572 U.S. at 656). For similar reasons,
the Court also does not address the parties’ competing expert reports. Dkt. Nos. 77-53, 77-54, 85-14.
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Austin v. Pappas, Not Reported in F.Supp.2d (2008)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2008 WL 857528
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Richard AUSTIN, Plaintiff,
v.
Brian PAPPAS, John Does, Yonkers
Police Commissioner Charles C. Coles,
Westchester County, Defendants.
No. 04-CV-7263 (KMK)(LMS).
|
March 31, 2008.
Attorneys and Law Firms
Mr. Richard Austin, Stormville, NY, pro se.
Rory Carleton McCormick, Esq., Corporation Counsel, City
of Yonkers, Yonkers, NY, for Defendants.
ORDER ADOPTING REPORT & RECOMMENDATION
KENNETH M. KARAS, District Judge.
*1 Richard Austin (“Plaintiff”) filed this suit pursuant to
42 U.S .C. § 1983 (“Section 1983”) against Yonkers Police
Officer Brian Pappas (“Defendant Pappas”), several John Doe
Yonkers Police Officers (“John Doe Defendants”), former
Yonkers Police Commissioner Charles C. Cola (“Defendant
Cola”) (whose name is misspelled in Plaintiff's Complaint
as Charles C. Coles), and Westchester County (collectively,
“Defendants”), alleging violations of Plaintiff's civil rights
under the First, Fourth, Fifth, Eighth, and Fourteenth
Amendments of the United States Constitution, along with
various supplemental state law claims. 1 (Compl.¶¶ 17,
19.) Plaintiff alleged that these violations occurred when
Defendants failed to protect Plaintiff from Franklyn Kelley, a
private individual who physically attacked Plaintiff during the
course of Plaintiff's May 16, 2003 arrest. (Id. ¶ 10.) Plaintiff
alleged that Defendant Pappas and the John Doe Defendants
handcuffed him and pinned him to the ground while Franklyn
Kelley repeatedly kicked and punched Plaintiff in the face.
(Id. (“The officers did nothing to protect the plaintiff from this
vicious assault, even though plaintiff was helpless and in their
custody [.]”).) Defendants moved for summary judgment,
and this Motion was referred by Judge McMahon to Chief
Magistrate Judge Lisa M. Smith for review pursuant to 28
U.S.C. § 636(b)(1). On August 2, 2007, Magistrate Judge
Smith issued a thorough Report and Recommendation (“R
& R”), concluding that this Court should grant Defendants'
Motion for Summary Judgment on the ground that Plaintiff
has failed to demonstrate that there exists a genuine issue
of material fact as to whether his constitutional rights were
violated. Plaintiff was advised of his right to file objections to
the R & R, but he did not do so.
A district court reviewing a report and recommendation “
‘may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.’
“ Donahue v. Global Home Loans & Fin., Inc., No. 05-
CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007)
(quoting 28 U.S.C. § 636(b)(1)(C)). Under 28 U.S.C. § 636(b)
(1) and Rule 72(b) of the Federal Rules of Civil Procedure,
parties may submit objections to a magistrate judge's report
and recommendation. The objections must be “specific”
and “written,” and must be made “within 10 days after
being served with a copy of the recommended disposition.”
Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. § 636(b)(1).
Where a party does not submit an objection, “ ‘a district court
need only satisfy itself that there is no clear error on the face
of the record.’ “ Donahue, 2007 WL 831816, at *1 (quoting
Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985)). In
addition, a party's failure to object waives that party's right
to challenge the report and recommendation on appeal. See
Fed. Deposit Ins. Corp. v. Hillcrest Assocs., 66 F.3d 566, 569
(2d Cir.1995) (“Our rule is that ‘failure to object timely to a
magistrate's report operates as a waiver of any further judicial
review of the magistrate's decision.’ “ (quoting Small v. Sec'y
of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989))).
*2 Here, Plaintiff has not filed objections to the R & R.
Accordingly, the Court has reviewed the R & R for clear error
only. In so doing, the Court adopts the conclusion reached in
the R & R that Defendants' Motion for Summary Judgment
should be granted, but the Court does so in part on different
grounds than those relied on in the R & R.
First, the Court agrees with Magistrate Judge Smith that
Defendants' noncompliance with Local Civil Rule 56.2
should be overlooked because any prejudice resulting from
noncompliance was cured by the following: (i) Magistrate
Judge Smith advised Plaintiff of the nature of summary
judgment during a March 23, 2007 conference; and (ii)
Magistrate Judge Smith annexed a Rule 56.2 notice to the
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R & R, a document to which Plaintiff was free to file
objections. See Narumanchi v. Foster, No. 02-CV-6553, 2006
WL 2844184, at *2 (E.D.N.Y. Sept. 29, 2006) (refusing to
deny defendant's motion for summary judgment based on
failure of defendant to comply with Local Civil Rule 56.2
because “[a]ny prejudice to pro se plaintiffs [was] cured” by
court's actions).
As expressed in the R & R, though Plaintiff did not file any
opposition to Defendants' Motion for Summary Judgment,
Defendants were still required to meet their burden of
demonstrating to the Court that “no material issue of fact
remains for trial.” See Amaker v. Foley, 274 F.3d 677, 681 (2d
Cir.2001). The Court finds no clear error in Magistrate Judge
Smith's determination that Defendants satisfied this burden.
With respect to Defendants Pappas and Cola, the Court finds
that Plaintiff has failed to offer any evidence demonstrating
that they were personally involved in the alleged violation of
Plaintiff's constitutional rights. The “ ‘personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ “ Back v.
Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122
(2d Cir.2004) (quoting McKinnon v. Patterson, 568 F.2d 930,
934 (2d Cir.1977)). For purposes of Section 1983 liability,
personal involvement can be established by evidence that:
‘(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 ...
by failing to act on information
indicating that unconstitutional acts
were occurring.’
Id. at 127 (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir.1995)); accord Hayut v. State Univ. of N.Y., 352 F.3d
733, 753 (2d Cir.2003); Schiller v. City of New York, No. 04-
CV-7922, 2008 WL 200021, at *4 (S.D.N.Y. Jan. 23, 2008);
Fair v.. Weiburg, No. 02-CV-9218, 2006 WL 2801999, at *4
(S.D.N.Y. Sept. 28, 2006). Further, a Section 1983 plaintiff
must “allege a tangible connection between the acts of the
defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d
260, 263 (2d Cir.1986); see also Fair, 2006 WL 2801999, at
*4 (citing Bass ).
*3 In support of their Motion for Summary Judgment,
Defendants submitted evidence that Defendant Pappas did not
directly participate in the arrest of Plaintiff, but he instead
arrested Plaintiff's accomplice. For example, on April 8, 2004,
at a hearing before the Honorable Richard A. Molea of the
Westchester County Court, Defendant Pappas testified that
he remained with Plaintiff's accomplice while other officers
arrested Plaintiff. (Defs.' Affirmation in Supp., Ex. J, 50-51.)
Further, in response to interrogatories served on him by
Plaintiff, Defendant Pappas stated that he “did not observe
what transpired during the course of plaintiff's arrest.” (Id.,
Ex. L.) Finally, Defendants offer a police report indicating
that “Pappas was detaining [Plaintiff's accomplice] in the
garage area, as additional units arrived and placed [Plaintiff]
into custody.” (Id., Ex. C.)
Plaintiff has failed to offer any evidence refuting Defendant
Pappas' version of events. In other words, Plaintiff has
offered no evidence demonstrating that Defendant Pappas
was actually one of the officers who arrested him and
allegedly pinned him to the ground while Kelley assaulted
him. In fact, during his deposition testimony, Plaintiff
admitted that he was not sure whether Defendant Pappas
was one of the police officers who arrested him, and that
the reason Defendant Pappas was named as a defendant in
the present suit was because Plaintiff had seen his name
on Plaintiff's felony complaint. (Id., Ex. G, 32-35.) As
such, the unrefuted evidence before the Court demonstrates
that Defendant Pappas was not one of the officers directly
involved in Plaintiff's arrest. Plaintiff therefore has failed
to satisfy a prerequisite to liability under Section 1983-
namely that Defendant Pappas had personal involvement
in the alleged violation of Plaintiff's constitutional rights.
See Back, 365 F.3d at 122. Thus, Plaintiff's claim against
Defendant Pappas must be dismissed.
Plaintiff alleged that Defendant Cola, Yonkers Police
Commissioner at the time of Plaintiff's 2003 arrest, violated
Plaintiff's constitutional rights by “authoriz[ing], tolerat[ing],
as institutionalized practices, and ratif[ying] the misconduct
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[of Defendant Pappas and John Doe Defendants].” (Compl.¶
14.) More specifically, Plaintiff charges Defendant Cola with
failure to properly: (1) discipline subordinate officers; (2) take
adequate precautions in hiring subordinate officers; (3) report
criminal acts by police personnel to the Westchester County
District Attorney; and (4) establish a system for dealing
with complaints about police misconduct. (Id.) Plaintiff does
not assert that Defendant Cola directly participated in the
violation of his constitutional rights; instead, Plaintiff urges
the Court to find Defendant Cola liable under Section 1983
based on his role as supervisor of Defendant Pappas and the
John Doe Defendants.
“It is well settled, however, that the doctrine of respondeat
superior standing alone does not suffice to impose liability
for damages under section 1983 on a defendant acting in
a supervisory capacity.” See Hayut, 352 F.3d at 753 (citing
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)).
Instead, it is necessary to establish a supervisory official's
personal involvement in the alleged constitutional violation.
See id.; Fair, 2006 WL 2801999, at *4.
*4 Plaintiff has failed to provide the Court with any
evidence from which a reasonable jury could conclude that
Defendant Cola was personally involved in the alleged
violation of Plaintiff's constitutional rights. Plaintiff has
offered no evidence demonstrating that Defendant Cola was
aware of and failed to remedy constitutional violations by
subordinate officers, or that he acted in a grossly negligent
or deliberately indifferent manner in supervising or training
subordinate officers. There is also no evidence in the record
to support a theory that Defendant Cola created a policy
or custom that fostered and led to the alleged violation of
Plaintiff's rights. See Hayut, 352 F.3d at 754 (finding as
fatal to plaintiff's Section 1983 claim the fact that there
existed “no evidence that, after becoming aware of the
alleged harassment, any of the [supervisory officials] failed to
respond or remedy the situation, that any of these [supervisory
officials] created or allowed a policy to continue under which
alleged harassment could occur, or that they were grossly
negligent in monitoring [the alleged harasser's] conduct”);
Harris v. City of New York, No. 01-CV-6927, 2003 WL
554745, at *6 (S.D.N.Y. Feb. 26, 2003) (“[P]laintiff has
put forth no evidence pointing to defendant ['s] personal
involvement in plaintiff's alleged deprivation of rights ....
Plaintiff's conclusory allegations regarding defendant['s]
alleged supervisory role, without more, cannot withstand
summary judgment.”). Further, nothing in the record, even
drawing all inferences in Plaintiff's favor, suggests any
tangible connection between Defendant Cola's training or
supervision of subordinate officers and the alleged violation
of Plaintiff's rights. In fact, the record contains no evidence
with regard to Defendant Cola whatsoever. Without such
evidence, no reasonable jury could conclude that Defendant
Cola had personal involvement in the alleged violation of
Plaintiff's constitutional rights, which means that Plaintiff
has failed to satisfy a prerequisite to Section 1983 liability,
and therefore that Defendant Cola is entitled to summary
judgment in his favor. See Davis v. Kelly, 160 F.3d 917,
921 (2d Cir.1998) (“After an opportunity for discovery,
undisputed allegations that [a] supervisor lacked personal
involvement will ultimately suffice to dismiss that official
from the case.”).
In sum, the Court finds that Plaintiff has failed to establish the
personal involvement of Defendants Pappas and Cola in the
alleged violation of his rights. For reasons set forth more fully
in the R & R, the Court also dismisses the Complaint as to the
John Doe Defendants because Plaintiff's time limit to amend
the Complaint in order to substitute in named defendants has
lapsed. Therefore, the Court finds it unnecessary to reach
the question of whether Plaintiff has adequately established
an underlying violation of his constitutional rights. Finally,
having determined that no cognizable federal claims exist, the
Court will follow Magistrate Judge Smith's recommendation
in declining to exercise jurisdiction over the state law claims.
*5 Accordingly, it is hereby:
ORDERED that the Report and Recommendation dated
August 2, 2007, is ADOPTED on the grounds set forth in this
Order; and it is further
ORDERED that Defendants' Motion for Summary Judgment
pursuant to Federal Rule of Civil Procedure 56 is GRANTED.
The Clerk of Court is respectfully directed to enter judgment
in favor of Defendants, to terminate Defendant's Motion (Dkt.
No. 28), and to close this case.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2008 WL 857528
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Footnotes
1 On August 8, 2005, Plaintiff's claim against Westchester County was dismissed by the Honorable Gerald E.
Lynch, to whom this case was initially assigned. On February 28, 2006, the case was transferred to White
Plains and reassigned to Judge Colleen McMahon. The case was reassigned to the undersigned on August
6, 2007.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 56 of 340

Brown v. Peters, Not Reported in F.Supp. (1997)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.
DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,
1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which
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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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Brown v. Peters, Not Reported in F.Supp. (1997)
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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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Brown v. Peters, Not Reported in F.Supp. (1997)
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RECOMMENDED, that defendants Bishop, Magee, Barton
and McMahan's motion to dismiss (dkt.20) be granted; and it
is further
RECOMMENDED, that defendants Herman, Stewart and
Stanford's motion to dismiss (dkt.34) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.
All Citations
Not Reported in F.Supp., 1997 WL 599355
Footnotes
1 I note, however, that the report-recommendation would survive even de novo review.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Cannenier v. Skipper-Scott, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 764795
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Quaysean CANNENIER, Plaintiff,
v.
Warden SKIPPER-SCOTT, et al., Defendants.
18 Civ. 2383 (LGS)
|
Signed 02/20/2019
Attorneys and Law Firms
Quaysean Cannenier, Waymart, PA, pro se.
Brandon Herbert Cowart, U.S. Attorney's Office, New York,
NY, for Defendants.
OPINION AND ORDER
Lorna G. Schofield, United States District Judge
*1 Pro se Plaintiff Quaysean Cannenier brings this action
against Shirley Skipper-Scott, Jossam Georgy, Rosa Proto,
Kiet Vuong, Leslie McPherson-Anderson and Krishna Ajarie
(“Defendants”) who are Federal Bureau of Prisons (“BOP”)
Officers, 1 stemming from a head wound Plaintiff sustained
when stabbed by another inmate. The Complaint is construed
to raise claims under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
the Federal Tort Claims Act (“FTCA”). Defendants move to
dismiss for lack of subject matter jurisdiction and for failure
to state a claim. Fed. R. Civ. P. 12(b)(1), 12(b)(6). For the
reasons described herein, the motion is granted.
I. BACKGROUND
The facts are taken from the Complaint and Plaintiff’s
opposition to the motion to dismiss, and, as required on
a motion to dismiss, these facts are accepted as true and
construed in the light most favorable to Plaintiff. Raymond
Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719, 725
(2d Cir. 2017); see also Coke v. Med., Dep't of Corr. &
Cmty. Supervision, No. 17 Civ. 0866, 2018 WL 2041388,
at *1 n. 2 (S.D.N.Y. Apr. 30, 2018) (“[W]hen a pro
se plaintiff’s opposition memoranda raises new allegations
that are consistent with the allegations in the Complaint,
these allegations may be read as supplements to th[e]
pleadings.”) (some alteration in original) (internal quotation
marks omitted).
A. The Stabbing and Subsequent Medical Treatment
In September 2016, Plaintiff was a pre-trial detainee at
the Metropolitan Correctional Center (“MCC”) in the Unit
11 North housing unit. On September 1, 2016, Defendants
Vuong, McPherson-Anderson and Ajarie conducted a general
search of Unit 11 North for weapons and contraband. Vuong,
McPherson-Anderson and Ajarie failed to find a weapon kept
by Joan Vasquez, an inmate. On September 2, 2016, Vasquez
used the weapon to stab Plaintiff in the head. Ajarie was
present for the attack but did not help Plaintiff or intervene.
Plaintiff’s wound caused heavy bleeding, and Plaintiff passed
out as he tried to seek medical attention.
*2 When Plaintiff awoke, he was being taken to Brooklyn
First Hospital. At the hospital, Plaintiff did not receive an MRI
or X-ray.
Once Plaintiff returned to MCC, he was put in the “box” -- a
special housing unit -- for 90 days even though no disciplinary
charges were filed against him. Although Plaintiff requested
medical attention for his terrible pain, he did not receive
medical care for a week. At that time, he was given an MRI
and X-ray.
B. Grievance Attempt
Plaintiff requested a BP-8 form (for an informal resolution)
from Defendant Proto who has been a BOP Officer for at
least ten years. However, Proto knowingly gave Plaintiff a
BP-9 form (a formal written complaint). Plaintiff’s completed
BP-9 form includes allegations of improper medical care
because no MRI or X-ray was performed, but does not contain
information about the other claims raised in the Complaint.
Plaintiff’s BP-9 was received on October 27, 2016, and
rejected on October 28, 2016. The rejection notice states that
the BP-9 was rejected because Plaintiff did not attempt, or
provide evidence of an attempt at, informal resolution (i.e. a
BP-8 form). The notice, which is attached to the Complaint,
explains that Plaintiff must first attempt informal resolution
and that Plaintiff had five days to submit a proper form.
II. LEGAL PRINCIPLES
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A. Motion to Dismiss for Lack of Subject Matter
Jurisdiction
In order to survive a motion to dismiss under Rule 12(b)(1),
“the plaintiff has the burden of proving by a preponderance
of the evidence that subject matter jurisdiction exists.” Katz
v. Donna Karan Co., 872 F.3d 114, 120 (2d Cir. 2017). All
material allegations in the Complaint are accepted as true,
however, “argumentative inferences favorable to the party
asserting jurisdiction should not be drawn.” Atl. Mut. Ins.
v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.
1992); accord Lucas v. Fed. Bureau of Prisons, No. 17 Civ.
1184, 2018 WL 3038496, at *2 (S.D.N.Y. June 19, 2018).
In considering a Rule 12(b)(1) motion, a court may rely on
evidence outside the pleadings. Moser v. Pollin, 294 F.3d 335,
339 (2d Cir. 2002); accord Raymond Loubier Irrevocable Tr.,
858 F.3d at 725.
B. Motion to Dismiss for Failure to State a Claim
On a motion to dismiss, a court accepts as true all
well-pleaded factual allegations and draws all reasonable
inferences in favor of the non-moving party, Montero v. City of
Yonkers, 890 F.3d 386, 391 (2d Cir. 2018), but gives “no effect
to legal conclusions couched as factual allegations,” Stadnick
v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017) (internal
quotation marks omitted). To withstand a motion to dismiss, a
pleading “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) ). “Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
C. Pro se Pleadings and Briefs
Courts must “liberally construe pleadings and briefs
submitted by pro se litigants, reading such submissions to
raise the strongest arguments they suggest.” McLeod v. Jewish
Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal
quotation marks omitted). “The policy of liberally construing
pro se submissions is driven by the understanding that implicit
in the right to self-representation is an obligation ... 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.” Id. at 156–57 (internal quotation
marks omitted). “We afford a pro se litigant special solicitude
by interpreting a complaint filed pro se to raise the strongest
claims that it suggests.” Hardaway v. Hartford Pub. Works
Dep't, 879 F.3d 486, 489 (2d Cir. 2018) (internal quotation
marks omitted).
III. DISCUSSION
*3 The Complaint is construed to raise an FTCA claim for
negligence in failing to find the weapon and Bivens claims
for denying access to the grievance process, failure to protect
against an inmate’s assault, improper placement in a special
housing unit, and deliberate indifference to a serious medical
need. For the following reasons, the motion to dismiss is
granted.
A. FTCA Claim
The Complaint raises a negligence claim against Defendants
Vuong, McPherson-Anderson and Ajarie for failing to
find the weapon used to stab him during their search of
Plaintiff’s housing unit. As explained below, the United
States is substituted as the named Defendant for Plaintiff’s
FTCA negligence claim, and the claim is dismissed for
lack of subject matter jurisdiction. See Celestine v. Mount
Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir.
2005) (“The FTCA requires that a claimant exhaust all
administrative remedies before filing a complaint in federal
district court. This requirement is jurisdictional and cannot be
waived.”); accord Shariff v. United States, 689 F. App'x 18,
20 (2d Cir. 2017) (summary order); Davila v. Gutierrez, 330
F. Supp. 3d 925, 936 (S.D.N.Y. 2018).
1. Substituting the United
States as the Named Defendant
The FTCA provides a limited waiver of sovereign immunity
for claims “arising from the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment....” 28 U.S.C. §
2679(b)(1). “The only proper defendant to a tort claim under
the FTCA is the United States.” Skyers v. Sommer, No. 12
Civ. 3432, 2016 WL 4484241, at *7 (S.D.N.Y. Aug. 23, 2016)
(citing Rivera v. United States, 928 F.2d 592, 609 (2d Cir.
1991) ).
“The FTCA provides that upon certification by the Attorney
General that an employee was acting within the scope of
his office or employment when he committed the allegedly
negligent act, the United States shall be substituted as the
defendant in place of the employee, and the FTCA shall be
the exclusive remedy for any action or claim arising out of
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the negligent act.” Fountain v. Karim, 838 F.3d 129, 133 n.3
(2d Cir. 2016). Because the United States has certified that
Defendants Vuong, McPherson-Anderson and Ajarie were
acting within the scope of their employment in conducting
searches of Plaintiff’s unit on September 1, 2016, the United
States is substituted as the named Defendant for Plaintiff’s
FTCA claim for the negligent failure of Defendants Vuong,
McPherson-Anderson and Ajarie to find the weapon that was
used to stab Plaintiff.
2. Failure to Exhaust
Under the FTCA, a plaintiff must exhaust administrative
remedies prior to bringing a tort claim against the United
States. The FTCA states in relevant part:
(a) An action shall not be instituted
upon a claim against the United States
for money damages for injury or loss
of property or personal injury or death
caused by the negligent or wrongful
act or omission of any employee of
the Government while acting within
the scope of his office or employment,
unless the claimant shall have first
presented the claim to the appropriate
Federal agency and his claim shall
have been finally denied by the agency
in writing....
28 U.S.C. § 2675(a) (emphasis added). The exhaustion
requirement is “strictly construed.” See Johnson v.
Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999); accord
Bright-Asante v. Wagner, No 15 Civ. 9110, 2017 WL
6948359, at *9 (S.D.N.Y. Dec. 1, 2017). A plaintiff bears
the burden to “ ‘plead and prove compliance with the
[exhaustion] requirements’ of the FTCA.” Bright-Asante,
2017 WL 6948359, at *9 (quoting In re Agent Orange Prod.
Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987) ). Where
a plaintiff fails to exhaust his administrative remedies, the
district court lacks subject matter jurisdiction over the FTCA
claims. See Celestine, 403 F.3d at 82; accord Davila, 330 F.
Supp. 3d at 936.
*4 The FTCA claim for the negligent failure to find the
weapon that was used to stab Plaintiff is dismissed because
the Court lacks subject matter jurisdiction. The Complaint
alleges no facts to show that a sufficient administrative claim
was filed with an appropriate federal agency as required
under the FTCA. See, e.g., Page v. Oath Inc., No. 17 Civ.
6990, 2018 WL 1406622, at *4 (S.D.N.Y. Mar. 20, 2018);
Bright-Asante, 2017 WL 6948359, at *9 (dismissing FTCA
claim where plaintiff “wholly fail[ed] to plead the filing of an
administrative claim with the [relevant agency]”).
B. Bivens Claims
In Bivens, the Supreme Court recognized “an implied private
action for damages against federal officers alleged to have
violated a citizen’s constitutional rights.” Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 66 (2001).
A two-step process determines whether a Bivens remedy
is available for an alleged constitutional injury. First, a
court must determine if there is a recognized Bivens action
encompassing that claim. Ochoa v. Bratton, No. 16 Civ. 2852,
2017 WL 5900552, at *6 (S.D.N.Y. Nov. 28, 2017) (quoting
Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) ) (“Because
‘the [Supreme] Court has made clear that expanding the
Bivens remedy is now a “disfavored” judicial activity,’ when
confronted with claim under Bivens, a district court must
first determine whether a Bivens action encompassing that
claim has already been recognized, or whether the claim
presents a potentially new context.”). “The Supreme Court
has recognized a Bivens action in only three contexts: (1) an
unreasonable search and seizure in violation of the Fourth
Amendment, (2) employment discrimination in violation of
the Due Process Clause of the Fifth Amendment, and (3)
failure to treat an inmate’s medical condition in violation of
the Eighth Amendment.” Modest Needs Found. v. Bianco,
No. 16 Civ. 3144, 2017 WL 3130416, at *9 (S.D.N.Y. July
21, 2017) (internal citations omitted). “The proper test for
determining whether a case presents a new Bivens context is
as follows. If the case is different in a meaningful way from
previous Bivens cases decided by this Court, then the context
is new.” Ziglar, 137 S. Ct. at 1859. The Supreme Court has
provided some examples of ways in which a case “might
differ in a meaningful way” including:
the rank of the officers involved;
the constitutional right at issue; the
generality or specificity of the official
action; the extent of judicial guidance
as to how an officer should respond to
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the problem confronted; the statutory
or other legal mandate under which
the officer was operating; the risk of
disruptive intrusion by the Judiciary
into the functioning of other branches;
or the presence of potential special
factors that previous Bivens cases did
not consider.
Id. at 1860. Although “the new-context inquiry is easily
satisfied,” the Supreme Court has recognized that “[s]ome
differences, of course, will be so trivial that they will not
suffice to create a new Bivens context.” Id. at 1865.
Second, if the claim arises in a new context, a court
must consider whether there are special factors counseling
hesitation in creating a Bivens remedy. Id. at 1857. The
question of what special factors counsel hesitation “must
concentrate on whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh the
costs and benefits of allowing a damages action or proceed.”
Id. at 1857–58. “Thus, to be a ‘special factor counselling
hesitation,’ a factor must cause a court to hesitate before
answering that question in the affirmative.” Id. at 1858. “[I]f
there is an alternative remedial structure present in a certain
case, that alone may limit the power of the Judiciary to infer
a new Bivens cause of action.” Id.
1. Denying Access to the Grievance Process
*5 The Complaint is construed to include a claim against
Defendant Proto for denying access to the grievance system.
The Complaint states that Defendant Proto intentionally gave
Plaintiff a BP-9 instead of a BP-8 for informal resolution,
so that Plaintiff’s BP-9 form would be rejected, which the
Court assumes to be true for purposes of this motion and does
not condone. But this does not state a Bivens claim because
there is no constitutional right to the grievance process. See,
e.g., Conquistador v. Adimitis, No. 18 Civ. 1240, 2018 WL
6344187, at *2 (D. Conn. Dec. 5, 2018) (“[P]risoners do
not have a due process right to a thorough investigation of
grievances.”) (internal quotation marks omitted); Young v.
Tryon, No. 12 Civ. 6251, 2015 WL 309431, at *14 (W.D.N.Y.
Jan. 23, 2015), report and recommendation adopted, 2015
WL 554807 (W.D.N.Y. Feb. 11, 2015) (“[T]he law is clear
that [inmates] ha[ve] no constitutional right to have [their]
grievances processed at all, or if processed, to have the
procedure done properly.”) (alternation in original) (internal
quotation marks omitted). The denial of access to the
grievance process claim is dismissed.
2. Failure to Protect and Improper
Placement in a Special Housing Unit
The Complaint is construed to include a claim for failure
to protect based on the allegation that Ajarie was present
during the attack on Plaintiff but did not help Plaintiff or
intervene. See Poulos v. City of New York, No. 14 Civ. 3023,
2015 WL 5707496, at *6 (S.D.N.Y. Sept. 29, 2015) (“ ‘Where
a prison inmate has alleged that he was not protected by
prison officials, this court has recognized that an inmate
who is injured as a result of a prison official’s deliberate
indifference to his safety may maintain a damage action
for the deprivation of his civil rights under the Eighth and
Fourteenth Amendment.’ ”) (quoting Snider v. Dylag, 188
F.3d 51, 54 (2d Cir. 1999) ). The Complaint is also construed
to include a claim for improper placement in a special housing
unit based on the allegation that Plaintiff was placed in a
special housing unit for 90 days even though no disciplinary
charges were filed against him. See Smith v. New York State
Dep't of Corr. Servs., No. 15 Civ. 3455, 2018 WL 2305566,
at *4 (S.D.N.Y. May 21, 2018) (“A prisoner’s liberty interest
may be implicated by [special housing unit] confinement only
if the discipline imposes [an] atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison
life.”) (some alteration in original) (internal quotation marks
omitted).
These claims are dismissed. First, both claims present a
new Bivens context. The Supreme Court has recognized
only three Bivens contexts, none of which include failure
to protect or improper placement in a special housing
unit. Second, there are special factors that counsel against
expanding a new Bivens remedy, including the availability of
alternative relief (the BOP administrative grievance process
and habeas corpus) and Congress’s legislation in the area of
prisoners' rights. See Ziglar, 137 S. Ct. at 1865 (noting that
post-Carlson, “Congress passed the Prison Litigation Reform
Act of 1995, which made comprehensive changes to the
way prisoner abuse claims must be brought in federal court
[without providing for a standalone damages remedy against
federal jailers],” therefore “Congress had specific occasion
to consider the matter of prisoner abuse and to consider
the proper way to remedy those wrongs”) (internal citation
omitted). As a result, there is no Bivens remedy for failure
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to protect or improper housing. See Turkmen v. Ashcroft, No.
02 Civ. 2307, 2018 WL 4026734, at *13 (E.D.N.Y. Aug. 13,
2018) (collecting cases); Gonzalez v. Hasty, 269 F. Supp. 3d
45, 61 (E.D.N.Y. 2017), aff'd, No. 17 Civ. 3790, 2018 WL
5960773 (2d Cir. Nov. 14, 2018) (declining to extend a Bivens
remedy for confinement in special housing unit). The failure
to protect claim and improper placement claim are dismissed.
3. Deliberate Indifference to a Serious Medical Need 2
*6 The Complaint is construed to include a claim for
deliberate indifference to a serious medical need against
Defendants Skipper-Scott and Georgy. 3
To assert a viable constitutional claim for deliberate
indifference to a serious medical need, a plaintiff must
plead facts showing that (1) the deprivation of medical care
is objectively “sufficiently serious” in light of a medical
condition “that may produce death, degeneration, or extreme
pain,” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011),
and (2) “the defendant-official ... intentionally ... or recklessly
failed to act with reasonable care ... even though the
defendant-official knew, or should have known,” that the
alleged medical condition “posed an excessive risk to health
or safety.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017);
see also Hill, 657 F.3d at 122–23.
A plaintiff must plead “that the alleged deprivation of medical
treatment is, in objective terms, ‘sufficiently serious’ -- that
is, ... that his medical need was a condition of urgency,
one that may produce death, degeneration, or extreme pain.”
Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005)
(internal quotation marks omitted). “Because ‘[t]he objective
component ... is ... [necessarily] contextual’ and fact-specific,
the serious medical need inquiry must be tailored to the
specific circumstances of each case.” Smith v. Carpenter, 316
F.3d 178, 185 (2d Cir. 2003) (alterations in original) (internal
citation omitted) (quoting Hudson v. McMillian, 503 U.S. 1,
8 (1992) ).
Deliberate indifference may be “manifested by prison doctors
in their response to the prisoner’s needs.” Estelle v. Gamble,
429 U.S. 97, 104–05 (1976). Non-medical personnel may be
deliberately indifferent by “intentionally denying or delaying
access to medical care or intentionally interfering with the
treatment once prescribed.” Id.; Wright, 412 F.3d at 404
(citing Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987)
) (“[A] deliberate indifference claim can lie where prison
officials deliberately ignore the medical recommendations
of a prisoner’s treating physicians.”). Still, “a plaintiff
must prove that [nonmedical] prison personnel intentionally
delayed access to medical care when the inmate was in
extreme pain and has made his medical problems known to
the attendant prison personnel or that the inmate suffered
a complete denial of medical treatment.” Roundtree v. City
of New York, No. 15 Civ. 8198, 2018 WL 1586473, at *6
(S.D.N.Y. Mar. 28, 2018) (alteration in original) (internal
quotation marks omitted).
*7 For individual liability to attach, Bivens defendants --
even those in supervisory positions -- must be personally
involved such that “through their own actions, they satisfy
each element of the underlying constitutional tort.” Turkmen
v. Hasty, 789 F.3d 218, 250 (2d Cir. 2015), rev'd on other
grounds, Ziglar v. Abbasi, 137 S. Ct. 1843, 1869 (2017); see
also Gonzalez v. Hasty, No. 17 Civ. 3790, 2018 WL 5960773,
at *4 (2d Cir. Nov. 14, 2018) (summary order) (“A Bivens
plaintiff cannot rely on respondeat superior to establish the
liability of defendants; instead, he must prove that each
Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”) (internal
quotation marks omitted).
The Complaint does not plausibly allege a claim for deliberate
indifference to a serious medical need against Defendants
Skipper-Scott and Georgy because Skipper-Scott and Georgy
appear only in the caption of the Complaint. The Complaint
contains no allegations that Skipper-Scott or Georgy knew of
-- or acted with deliberate indifference to -- Plaintiff’s severe
medical condition. The deliberate indifference to a serious
medical need claim is accordingly dismissed. See Calix v.
Fed. Bureau of Prisons, No. 18 Civ. 3980, 2018 WL 3518509,
at *2 (E.D.N.Y. July 20, 2018) (dismissing a Bivens claim
against a defendant where the only mention of defendant was
the caption of the complaint).
C. Leave to Replead
Leave to amend should be freely given when justice so
requires. Fed. R. Civ. P. 15(a). “However, where the plaintiff
is unable to demonstrate that he would be able to amend
his complaint in a manner which would survive dismissal,
opportunity to replead is rightfully denied.” Hayden v. Cty. of
Nassau, 180 F.3d 42, 53 (2d Cir. 1999). Leave to amend also
may be denied where the plaintiff “fails to specify either to
the district court or to the court of appeals how amendment
would cure the pleading deficiencies in its complaint.”
TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d
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Cir. 2014). Any motion for leave to replead shall be filed as
provided below.
If Plaintiff believes that he can sufficiently replead the FTCA
claim against the United States or deliberate indifference to a
serious medical need claim against Defendants Skipper-Scott
and Georgy, he may file a letter (by filing it with the Pro
Se Intake Office), not to exceed three, single-spaced pages,
describing how he would amend the Complaint to cure the
deficiencies described in this Opinion -- including (1) for
an FTCA claim, how Plaintiff has exhausted all necessary
administrative remedies prior to bringing such a tort claim
against the United States; (2) for a deliberate indifference
to a serious medical need claim against Skipper-Scott and
Georgy, how Skipper-Scott and/or Georgy knew or should
have known of Plaintiff’s severe medical condition and what
they did to deprive Plaintiff of medical care. Any such
application for leave to replead shall be filed as provided
below.
IV. CONCLUSION
For the foregoing reasons, the United States is substituted as
the named Defendant for the FTCA claim, and Defendants'
motion to dismiss the Complaint is GRANTED. If Plaintiff
seeks leave to file an amended complaint, he shall file a letter
application as described above on or before March 22, 2019.
All Citations
Not Reported in Fed. Supp., 2019 WL 764795
Footnotes
1 The Complaint also names as a Defendant the “Director of Brooklyn First Hospital.” In the April 13, 2018,
Order the Court stated:
The Court declines at this stage to issue a Valentin order as to the hospital director. Plaintiff fails to provide
sufficient detail about who this individual is and what his role was in what occurred. When Plaintiff files an
amended complaint to add the names of the correction officers, he may provide more information about
the hospital director. The Court will reconsider the matter at that time.
Plaintiff did not provide more information, and thus the Director of Brooklyn First Hospital was not served.
As this Defendant was not served within 90 days after the complaint was filed and Plaintiff was provided an
opportunity to provide more information about the hospital director but failed to do so, the Director of Brooklyn
First Hospital is dismissed from this action pursuant to Rule 4(m), Fed. R. Civ. P.
2 Defendants argue that it is clear from the face of the Complaint that Plaintiff failed to exhaust his administrative
remedies for his Bivens claims for deliberate indifference to a serious medical need. This argument is
unpersuasive. Since “failure to exhaust is an affirmative defense under the [Prison Litigation Reform Act], ...
inmates are not required to specially plead or demonstrate exhaustion in their [Bivens] complaints.” Jones
v. Bock, 549 U.S. 199, 216 (2007). Nevertheless, “a district court still may dismiss a complaint for failure to
exhaust administrative remedies if it is clear on the face of the complaint that the plaintiff did not satisfy the
PLRA exhaustion requirement.” Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016). Here, it is not clear on
the face of the Complaint that Plaintiff failed to exhaust his administrative remedies. The Complaint attaches
Plaintiff’s BP-9 form and the response dated October 28, 2016, rejecting Plaintiff’s BP-9 form because Plaintiff
did not provide evidence that he attempted an informal resolution (i.e. a BP-8 form) before submitting his
BP-9 form. The Complaint states that because of Proto’s actions, Plaintiff could not exhaust his administrative
remedies and his only recourse was to file this action over a year later. It is unclear what administrative
remedy steps Plaintiff may have taken between receiving the notice and filing this action. Because Plaintiff
is not required to plead exhaustion in the Complaint on a Bivens claim, the deliberate indifference to a
serious medical need claim is not dismissed for failure to exhaust administrative remedies. See, e.g., White
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v. Westchester Cty., No. 18 Civ. 730, 2018 WL 6726555, at *9 (S.D.N.Y. Dec. 21, 2018) (declining to dismiss
a complaint for failure to exhaust administrative remedies where the plaintiff submitted evidence that he
attempted to comply with two of four administrative remedy steps).
3 Defendants do not question whether a Fifth Amendment Bivens remedy for deliberate indifference to a
serious medical need exists after Ziglar; for the purposes of this motion, its existence is assumed. See
Morgan v. Shivers, No. 14 Civ. 7921, 2018 WL 618451, at *7 n.4 (S.D.N.Y. Jan. 29, 2018) (“The Court notes
that, even in light of the proscription against creating new Bivens remedies, it would be counterintuitive if a
convicted prisoner could remedy a federal officer’s failure to provide medical care amounting to punishment,
but a pre-trial detainee—who, ‘unlike convicted prisoners[,] cannot be punished at all,’ could not. Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2475 (2015).”) (alteration in original).
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Carattini v. Behun, Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 3274663
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Eric CARATTINI, Plaintiff,
v.
Christopher BEHUN, Defendant.
No. 21 Civ. 9373 (NSR)
|
Signed July 2, 2024
Attorneys and Law Firms
Eric Carattini, Holyoke, MA, Pro Se.
Alyssa O'Gallagher, DOJ-USAO, New York, NY, for
Defendant.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge
*1 Plaintiff Eric Carattini (“Plaintiff”), proceeding pro
se, brings this action against Defendant Christopher Behun
(“Defendant”). (See Second Amended Complaint, “SAC.,”
ECF No. 40.) As against Defendant, Plaintiff asserts claims
for excessive force under the Fourth Amendment and
deliberate indifference to medical needs under the Fifth
Amendment. (See id. at 11–12.)
Defendant moves to dismiss Plaintiff's SAC for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
(the “Motion”, ECF No. 63.) For the following reasons, the
Motion is GRANTED in part and DENIED in part.
BACKGROUND
I. Factual Background
The following facts are taken from the SAC and assumed to
be true for the purposes of the Motion.
On April 19, 2021, following a brief car chase, Plaintiff was
arrested, handcuffed, and transported by Defendant, a Drug
Enforcement Administration (“DEA”) Task Force Officer, to
the Hawthorne State Police Barracks in the front passenger
seat of an “unmarked and unequipped[ ] ‘temporary’ police
vehicle.” (SAC at 3–4.) The vehicle lacked light bars, seat
belts, and a radio. (Id. at 4.) Defendant placed Plaintiff in the
front seat with no seat belt on and began to question him.
(Id.) Defendant then elbowed and “backhand[ed]” Plaintiff
repeatedly in the ribs, arm, shoulder, and face, as well as
slammed on the brakes so that Plaintiff “pitched forward”
onto the windshield, “cracking it and hurting his head.” (Id.)
Defendant subsequently “fail[ed] to get [Plaintiff] medical
attention,” id. at 12, though Plaintiff ultimately “was sent to
local hospital” after attempting to enter a jail facility, id. at 6.
II. Procedural History
On November 8, 2021, Plaintiff filed his Complaint. (ECF
No. 1.) On August 25, 2022, Defendant served Plaintiff with
a motion to dismiss the Complaint pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure (ECF Nos. 24–26.)
Plaintiff subsequently sought and was granted leave to file
an amended complaint on two separate occasions. (See ECF
Nos. 31, 36, 40–41.) On July 10, 2023, Plaintiff filed the SAC,
which is now the operative complaint. (See ECF No. 40.)
On October 31, 2023, Defendant filed the instant Motion, as
well as a memorandum of law (“Def.’s MoL”, ECF No. 64)
and reply brief (ECF No. 65) in support thereof. Plaintiff filed
an opposition. (ECF No. 59.)
LEGAL STANDARD
To survive a motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6), for “failure to state a claim upon which relief
can be granted,” 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)). Detailed factual allegations are not necessary for
the purposes of surviving a motion to dismiss, however “a
plaintiff's obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a
formulaic recitation of a cause of action's elements will not
do.” Twombly, 550 U.S. at 555 (internal citations omitted).
*2 Courts use a “two-pronged” approach to analyze a motion
to dismiss. Brandon v. City of New York, 705 F. Supp. 2d
261, 276–77 (S.D.N.Y. 2010) (citing Iqbal, 556 U.S. at 678–
79). First, the Court accepts the factual allegations in a
complaint as true and draws all reasonable inferences in favor
of the plaintiff. Twombly, 550 U.S. at 678. At this point, the
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court may identify and strip away pleadings which are legal
conclusions “couched as [ ] factual allegations[s],” which are
not entitled to the assumption of truth. Id. at 678–79. Second,
the court is tasked with determining whether the factual
allegations “plausibly give rise to an entitlement to relief.”
Id. A claim is facially plausible when the factual content
pleaded allows the Court “to draw a reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
at 678. Ultimately, determining whether a complaint states a
facially plausible claim upon which relief may be granted is “a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Id. at 679.
The Second Circuit has ordered courts that “pro se complaints
‘must be construed liberally and interpreted to raise the
strongest arguments that they suggest.’ ” Sykes v. Bank
of America, 723 F.3d 399, m403 (2d Cir. 2013) (quoting
Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir. 2006)). These submissions are not held to the rigidities of
federal practice. Massie v. Metropolitan Museum of Art, 651
F. Supp.2d 88, 93 (S.D.N.Y. 2009). However, they will not
survive a motion to dismiss unless “their pleadings contain
factual allegations sufficient to ‘raise a right to relief above
a speculative level.’ ” McDaniel v. City of New York, 585
F. Supp. 3d 503, 512 (S.D.N.Y. 2022) (quoting Martinez v.
Ravikumar, 536 F.Supp.2d 369, 370 (S.D.N.Y. 2008)).
DISCUSSION
Liberally construed, Plaintiff's SAC asserts a Fourth
Amendment excessive force claim and a Fifth Amendment
deliberate indifference claim 1 pursuant to the doctrine of
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). 2 (SAC at 11–12.) In Bivens,
the Supreme Court recognized “an implied private action for
damages against federal officers alleged to have violated a
citizen's constitutional rights.” McGowan v. United States,
825 F.3d 118, 123 (2d Cir. 2016) (quoting Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456
(2001)). The Bivens Court implied a private right of action
under the Fourth Amendment for an unreasonable search
and seizure claim against FBI agents for handcuffing a man
in his own home without a warrant. Bivens, 403 U.S. at
389, 397, 91 S.Ct. 1999. Since then, the Supreme Court has
recognized Bivens claims in only two other circumstances: (1)
under the Fifth Amendment's Due Process Clause for gender
discrimination against a congressman for firing his female
secretary, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60
L.Ed.2d 846 (1979), and (2) under the Eighth Amendment's
prohibition on cruel and unusual punishment against prison
officials for failure to treat an inmate's asthma which led
to his death, Carlson v. Green, 446 U.S. 14, 100 S.Ct.
1468, 64 L.Ed.2d 15 (1980). Following Bivens, Davis, and
Carlson, the Supreme Court has retreated from recognizing
implied damages remedies under the Constitution, see Ziglar
v. Abbasi, 582 U.S. 120, 131–33 (2017), and “made clear that
expanding the Bivens remedy is now a disfavored judicial
activity,” id. at 135 (internal quotation marks and citation
omitted).
*3 In Egbert v. Boule, the Supreme Court crystallized a two-
step inquiry for courts to determine whether to imply a Bivens
cause of action in a new context or against a new category of
defendants. 596 U.S. 482, 490–93 (2022) (citing Abbasi, 582
U.S. at 135–38). First, a court considers “whether the case
presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’
different from the three cases in which the [Supreme] Court
has implied a damages action.” Id. at 492. The Supreme
Court did not offer an “exhaustive list of differences that are
meaningful enough to make a given context a new one,” but it
did offer in Abbasi examples that “might prove instructive.”
582 U.S. 120 at 139. The Court explained that
[a] case might differ in a meaningful
way because of the rank of the officers
involved; the constitutional right at
issue; the generality or specificity of
the official action; the extent of judicial
guidance as to how an officer should
respond to the problem or emergency
to be confronted; the statutory or other
legal mandate under which the officer
was operating; the risk of disruptive
intrusion by the Judiciary into the
functioning of other branches; or the
presence of potential special factors
that previous Bivens cases did not
consider.
Id. at 139–40. If the case does not present a “new context,” an
implied cause of action for damages is available. See Egbert,
596 U.S. 482 at 492. Second, if a “new context” is presented,
a court considers whether “ ‘special factors’ indicat[e] that the
Judiciary is at least arguably less equipped than Congress to
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‘weigh the costs and benefits of allowing a damages action to
proceed.’ ” Id. (quoting Abbasi, 582 U.S. at 136).
I. Fourth Amendment Excessive Force Claim
Plaintiff alleges Defendant used excessive force on him when
he elbowed and “backhand[ed]” Plaintiff repeatedly in the
ribs, arm, shoulder, and face, as well as slammed on the brakes
so that Plaintiff would hit his head on the windshield. (SAC
at 4.) In response, Defendant argues that, by nature of the
constitutional rights at issue and other factual distinctions,
recognizing such a claim would extend Bivens to a new
context. (Def.’s MoL at 6-8.)
A. New Context Analysis
Courts in this Circuit—and indeed, in this District—are split
as to whether excessive force claims present a new context
under Bivens, and the Second Circuit has yet to weigh in on
the question. 3 Some courts—like those in Martinez, 2019
WL 6895436 and Rivera v. Samilo, 370 F. Supp. 3d 362
(E.D.N.Y. 2019)—have found that the right at issue in Bivens
was primarily a privacy right, not a right to be free of
excessive force. As such, they have found that excessive force
claims present a new Bivens context. Other courts, however,
have held that Bivens also involved a claim “that unreasonable
force was employed in making the arrest,” and that the
plaintiff was entitled to recover for “any injuries...suffered as
a result of the agents' violation of the [Fourth] Amendment.”
Bivens, 403 U.S. at 389, 397 (emphasis added); see also
Walker, No. 18CIV4090VECSLC, 2020 WL 7685100, at
*16 (S.D.N.Y. Apr. 24, 2020), report and recommendation
adopted sub nom. Walker v. Kim, No. 18-CV-4090 (VEC),
2020 WL 7079421 (S.D.N.Y. Dec. 3, 2020) (holding, without
deciding, that Fourth Amendment unconstitutional arrest
claims against federal defendants in New York City “arguably
fall within one of the recognized Bivens categories”); Bueno
Diaz, 2020 WL 1082482, at *2–5 (finding that claim based
on unconstitutional arrest in New York City was a “run-of-
the-mill challenge to a standard law enforcement operation”
that was not “a context meaningfully different” from Bivens);
Lehal v. Cent. Falls Det. Facility Corp., 13 Civ. 3923 (DF),
2019 WL 1447261, at *10–12 (S.D.N.Y. Mar. 15, 2019). This
Court joins the latter group in holding that excessive force
claims under Bivens survive Abbasi, and therefore proceeds
to analyzing whether the case at bar presents a new context
under Bivens.
*4 First, both Bivens and this case concern the same type
of federal officers: narcotics officers. (See SAC at 3; Bivens,
403 U.S. at 389.) Second, the “legal mandate under which
the officer was operating” is not meaningfully different,
Abbasi, 582 U.S. at 140, “because the officers in both cases
carried out the same category of ‘official action’: an arrest
of someone suspected of a narcotics offense,” see Bueno
Diaz, 442 F. Supp. 3d at 708. (See SAC at 3; Bivens, 403
U.S. at 389.) Defendant argues that the fact that Plaintiff was
arrested pursuant to a warrant makes this case meaningfully
different from Bivens, because in Bivens, “the officers lacked
both a warrant and probable cause to arrest the plaintiff”
in his home, whereas “[h]ere, ...Plaintiff ‘makes absolutely
no allegations that he was ultimately arrested without either
a warrant or probable cause.’ ” (Def.'s MoL at 7 (quoting
Sosa v. Bustos, No. 17 CIV. 417 (ER), 2020 WL 1940550,
at *4 (S.D.N.Y. Apr. 22, 2020).) But Defendant's argument
directly contradicts Bivens. The holding in Bivens entitled
the arrestee to recover for “any injuries he has suffered as a
result of the agents' violation of the [Fourth] Amendment,”
Bivens, 403 U.S. at 397 (emphasis added), and explicitly
recognized that, among other injuries, the arrestee had alleged
“that unreasonable force was employed in making the arrest,”
id. at 389. Bivens is not, therefore, meaningfully different
on this basis. See Bueno Diaz, 442 F. Supp. 3d at 708
(holding that arrest pursuant to a warrant did not present
a new Bivens context); Lehal, 2019 WL 1447261, at *12
(“the existence of a warrant...should not be characterized
as ‘potential special factors that previous Bivens cases did
not consider.’ ”) (quoting Abbasi, 582 U.S. at 140). Rather,
the fact that Plaintiff's Fourth Amendment claim asserts a
constitutional right implicated in Bivens itself is a factor
that, under Abassi, weighs heavily in favor of finding that
Plaintiff's claim arises in the Bivens context, rather than in a
“new” context.
Defendant contends that because the question of whether
a particular use of force was excessive is fact-dependent,
“judicial precedents provide a less meaningful guide for
official conduct,” Def.’s MoL at 7 (quoting Abbasi, 582 U.S.
at 148), and therefore “this factor weigh[s] in favor of finding
a new context with respect to a Fourth Amendment excessive
force claim,” id. at 8. The Court disagrees. “[A]t the time of
Plaintiff's arrest, there existed substantial ‘judicial guidance’
as to the unconstitutionality of employing excessive force
in the course of an arrest.” See Bueno Diaz, 442 F. Supp.
3d at 707–09 (quoting Abbasi, 582 U.S. at 140); see, e.g.,
Graham v. Connor, 490 U.S. 386, 395–97 (1989) (setting
forth judicial guidance on the prohibition of excessive force
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by an arresting officer). Striking an arrestee repeatedly in
the ribs, arm, shoulder, and face, as well as causing him to
hit his head on a car windshield is hardly a close call in
terms of evaluating official conduct. See Bueno Diaz, 442
F. Supp. 3d at 713 (“Here, [d]efendant's actions constitute
excessive force. Spitting is not reasonably related to any goals
of effectuating a lawful arrest.”) Finally, Defendant does not
suggest, nor is it apparent to the Court, that recognizing a
Bivens remedy in this case would risk a “disruptive intrusion
by the Judiciary into the functioning of other branches.”
Abbasi, 582 U.S. 120 at 140.
In sum, there is no meaningful difference between the context
of Bivens and that of this case. “While this case does not align
with Bivens on all fours, the cases are closely analogous to the
extent they involve claims of federal agents using excessive
force to effect arrests.” See Lehal, 2019 WL 1447261, at *12.
“[T]he facts here present a ‘garden variety excessive force
case,’ ” Bueno Diaz, 442 F. Supp. 3d at 709 (citation omitted),
in “a context [not] meaningfully different from Bivens,” id.
at 708 (upholding Fourth Amendment excessive force claim
under Bivens against a DEA agent who beat plaintiff after
arresting him). Accordingly, the Court finds that Plaintiff's
Bivens claim for excessive force does not arise in a “new
context.”
B. Special Factors Analysis
In the alternative, the Court holds that, even if this case were
considered to present a new Bivens context, special factors
would not counsel against extending a Bivens remedy. The
“special factors” analysis asks “whether there is any reason
to think that Congress might be better equipped to create a
damages remedy.” Egbert, 142 S. Ct. at 1803. In answering
this question, a court may look to whether Congress has
provided an “alternative remedial structure,” the existence
of which “itself may amount to a convincing reason for
the Judicial Branch to refrain from providing a new and
freestanding remedy in damages.” Abbasi, 582 U.S. at 137
(internal quotation marks, citation, and brackets omitted).
Defendant argues that the existence of an alternative remedial
scheme—the Federal Tort Claims Act (“FTCA”)—“provides
a reason to think Congress might be better equipped to create
a damages remedy and, as such, alone ‘foreclose[s] a Bivens
action.’ ” (Def.’s MoL at 8 (quoting Egbert, 142 S. Ct. at
1806).) Defendant contends that Plaintiff's ability to obtain
monetary relief under the FTCA, 28 U.S.C. §§ 2674, 2680(h),
precludes him from bringing a Bivens action. Id. at 8–10. The
Court disagrees, and concludes that Defendant overreads the
Supreme Court's guidance regarding alternative remedies.
*5 The Supreme Court has stated that it is “crystal
clear” that “Congress views FTCA and Bivens as parallel,
complementary causes of action.” Carlson, 446 U.S. at 20,
100 S.Ct. 1468. In particular, “the FTCA facilitates only
liability in tort against the United States itself, whereas the
Bivens remedy vindicates violations of constitutional rights
by federal employees.” See Powell v. United States, No.
19-cv-11351, 2020 WL 5126392, at *10 (S.D.N.Y. Aug.
31, 2020) (internal citation omitted). It has been repeatedly
emphasized that an FTCA claim is simply not “a substitute
for a Bivens action,” Bush v. Lucas, 462 U.S. 367, 378
(1983); see also Wilkie v. Robbins, 551 U.S. 537, 553 (2007)
(noting that the “FTCA and Bivens remedies were ‘parallel,
complementary causes of action’ and that the availability of
the former did not preempt the latter” (quoting Carlson, 446
U.S. at 20, 100 S.Ct. 1468)). Neither the Supreme Court nor
the Second Circuit has explicitly “decided whether, in the
wake of Abbasi, the availability of an FTCA action precludes
the Bivens remedy.” Scott v. Quay, No. 19-cv-1075, 2020 WL
8611292, at *8 (E.D.N.Y. Nov. 16, 2020). “[A]bsent clear
guidance, this Court joins others unwilling to determine that
the FTCA alone is a sufficient alternate remedy.” See Mirvis v.
Quay, No. 19CV2573LDHVMS, 2023 WL 5671935, at *10
(E.D.N.Y. Sept. 1, 2023); see also Powell, 2020 WL 5126392,
at *10 (“The Supreme Court has not been bashful in signaling
its skepticism of the Bivens remedy—if the Court intended to
overrule Carlson, I am quite sure it would simply do so.”);
Bueno Diaz, 442 F. Supp. 3d at 711 (“The Supreme Court's
prior rulings in [Carlson] and [Robbins], remain good law ...
[t]he Court will follow that precedent.”).
“Certainly, the Court is mindful of the Supreme Court's recent
decision in Egbert v. Boule, which has been interpreted to
significantly constrict the pathway for redress under Bivens.”
Mirvis, 2023 WL 5671935, at *6. However, “although [the
Egbert] opinion will make it harder for plaintiffs to bring
a successful Bivens claim....the lower courts should not
read it to render Bivens a dead letter.” Egbert, 142 S. Ct.
at 1823 (Sotomayor, J., concurring in part and dissenting
in part). Though in recent Supreme Court decisions, “the
ground has shifted under Bivens, shaking its doctrinal
foundations...shaky or no, Bivens remains the law, and we are
not free to ignore it.” See Powell, 2020 WL 5126392, at *10
(quoting Engel v. Buchan, 710 F.3d 698, 708 (7th Cir. 2013)).
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Accordingly, the Court is unwilling to restrict the availability
to Plaintiff of a Bivens remedy based on the existence of the
FTCA alone.
C. Sufficiency of Pleading
Having found that a Bivens remedy is available for the
Fourth Amendment violation Plaintiff alleges, the Court also
concludes that Plaintiff has adequately stated a claim of
excessive force against Defendant. Although “not every push
or shove” violates the Fourth Amendment, Graham, 490
U.S. at 396, 109 S.Ct. 1865, Plaintiff claims that Defendant
elbowed him repeatedly in the ribs, arm, shoulder, and face, as
well as slammed on the brakes so that Plaintiff would hit his
head on the windshield. (SAC at 4.) “These actions, assumed
true for the purposes of deciding the motion to dismiss,
exceed reasonable force.” See Bueno Diaz, 442 F. Supp. 3d
at 713; see also O'Hara v. City of New York, 570 F. App'x.
21, 23–24 (2d Cir. 2014) (concluding that, “no reasonable
officer ... could have thought that the law authorized him
repeatedly to punch an unarmed, non-menacing 17-year-
old in effecting an arrest”); Konovalchuk v. Cerminaro,
No. 11 Civ. 1344, 2014 WL 272428, at *17 (N.D.N.Y.
Jan. 24, 2014) (“Crediting the pro se plaintiff's account of
the events, as required by the governing law, the alleged
kicking, punching, and stomping carried out by [the officers]
would be objectively unreasonable and disproportional to the
circumstances confronting those officers.”). As a result, the
Court denies Defendant's motion to dismiss Plaintiff's Fourth
Amendment excessive force claim.
II. Fifth Amendment Deliberate Indifference Claim
Plaintiff alleges that Defendant “fail[ed] to get [him] medical
attention after sadistically and maliciously assaulting [him]”
during their car ride following Plaintiff's arrest. (SAC at 12.)
In response, Defendant argues that, by nature of Plaintiff's
pre-trial status and other factual distinctions, recognizing such
a claim would extend Bivens to a new context. (Def.’s MoL
at 11-14.)
A. New Context Analysis
*6 In Carlson v. Greene, the Supreme Court held that the
Eighth Amendment's prohibition against cruel and unusual
punishment gave an inmate a damages remedy for failure
to provide adequate medical treatment. See 446 U.S. at 17–
18. Plaintiff's status as a pretrial detainee, however, requires
his claims be considered under the Fifth Amendment, as
the Fifth, not Eighth, Amendment protects federal pretrial
detainees from deliberate indifference to their serious medical
needs. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.
2011) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976));
Darnell v. Pineiro, 849 F.3d 17, 21 n.3 (2d Cir. 2017). The
Supreme Court has not explicitly recognized a Bivens remedy
for deliberate indifference to serious medical needs under the
Fifth Amendment. Therefore, as Defendant's argument goes,
Plaintiff's claim arises under a new Bivens context. (Def.’s
MoL at 11-12.)
“However, contrary to Defendant[’s] contention, that
Plaintiff's claim[ ] arise[s] under a different constitutional
provision is not necessarily dispositive as to whether
Plaintiff's claim[ ] implicate[s] a new Bivens context.” See
Mirvis, 2023 WL 5671935, at *4 (concluding that the
difference between the Fifth and Eighth Amendments did
not suffice to create a new Bivens context with respect
to pretrial detainee's deliberate indifference claims). In this
case, Plaintiff seeks to hold a federal officer liable for
damages he sustained as a result of the officer's indifference
to his medical claims as a pretrial detainee. If the claim
proceeds, in assessing its sufficiency, the Court would employ
the same analysis that it would have had Plaintiff's claim
arose under the Eighth Amendment. Indeed, the Second
Circuit has noted that “[w]e have often applied the Eighth
Amendment deliberate indifference test to pre-trial detainees
bringing actions under the Due Process Clause of the
Fourteenth Amendment ... [w]e see no reason why the
analysis should be different under the Due Process Clause
of the Fifth Amendment.” Cuoco, 222 F.3d at 106. Compare
Cannenier v. Skipper-Scott, 18-cv-2383, 2019 WL 764795,
at *4 (S.D.N.Y. Feb. 20, 2019) (considering a deliberate
indifference to serious medical need claim under the Eighth
Amendment), with Laurent v. Borecky, No. 17-cv-3300, 2018
WL 2973386, at *5 (E.D.N.Y. June 12, 2018) (considering
a deliberate indifference claim brought under the Fifth
Amendment and finding that while “this case...presents a
different constitutional right at issue...it bears an extremely
strong resemblance to [one of] the three Bivens claims the
[Supreme] Court has approved in the past[ ]”) (alternations
in original) (internal quotation marks omitted). Plaintiff's
medical indifference claim is indistinguishable from Carlson
in form aside from the Plaintiff's pretrial status, which forces
him to pursue his claim under the Fifth Amendment as
opposed to the Eighth Amendment. Cf. Ojo v. United States,
364 F. Supp. 3d 163, 173 (E.D.N.Y. 2019) (finding Fifth
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Amendment equal protection claim presented new context
because it was “distinct from the deliberate indifference claim
recognized in Carlson.”).
Accordingly, the fact that Plaintiff's Bivens claim for
deliberate indifference to serious medical needs is brought
under the Fifth Amendment as opposed to the Eighth
Amendment claim recognized in Carlson does not mean
that the claim arises in a new context. In so finding, the
Court joins several other district courts within this Circuit
to reach a similar conclusion. See, e.g., Mirvis, 2023 WL
5671935, at *4; Mendoza v. Edge, 615 F. Supp. 3d 163, 171
(E.D.N.Y. 2022) (finding that Fifth Amendment deliberate
indifference claim bore “an ‘extremely strong resemblance’ to
the Eighth Amendment deliberate indifference claim at issue
in Carlson.”) (citation omitted); Geritano v. AUSA Office
for E.D.N.Y., No. 20-cv-0781, 2020 WL 2192559, at *4
(S.D.N.Y. May 5, 2020) (“Courts in this district have held
that a federal pretrial detainee may bring a medical claim
under the Fifth Amendment because such a claim is the same
context as an Eighth Amendment claim already recognized
in Carlson.”); Torres v. Licon Vitale, No. 20-CV-3787 (LLS),
2020 WL 3872151, at *3 (S.D.N.Y. July 9, 2020) (“Federal
pretrial detainees may bring a Fifth Amendment claim for
failure to provide medical treatment as a Bivens action
because such a claim bears a strong resemblance to the claim
in Carlson.”).
*7 The Court agrees with Defendant, however, that
other distinctions make it such that Plaintiff's deliberate
indifference claim arises in a new context. First, unlike
Plaintiff's Fourth Amendment claim, Plaintiff's Fifth
Amendment claim is brought against a “new category of
defendants” as compared to Carlson. See Abbasi, 582 U.S.
at 135 (observing that the Supreme Court has “consistently
refused to extend Bivens to any ... new category of
defendants” (citation omitted)). While Carlson involved
allegations of deliberate indifference by prison officials, see
Carlson, 446 U.S. at 16, this case involves allegations of
deliberate indifference by an alleged “investigator for the
New York State Police” “working in conjunction with the
[DEA],” (SAC at 1, 3); see Martinez, 2019 WL 6895436,
at *7 (finding different “type of officers involved” to be a
meaningful difference).
Second, the severity of Plaintiff's alleged injury differs
significantly from that in Carlson., Liberally construed,
the SAC alleges unspecified injuries to Plaintiff's ribs,
arm, shoulder, face, and head from the Defendant's alleged
elbowing, backhanding, and stopping his vehicle short. (See
SAC at 4.) By contrast, Carlson involved allegations of
grossly inadequate medical care provided to an inmate with a
severe and chronic asthma condition that ultimately resulted
in the inmate's death. See Carlson, 446 U.S. at 16 & n.1.
“Courts have routinely found variances in circumstances
and severity render deliberate indifference claims different
from Carlson and thus arise in a ‘new context.’ ” Bettis
v. Grijalva, No. 21 CIV. 7505 (GWG), 2023 WL 4141869,
at *6 (S.D.N.Y. June 23, 2023) (collecting cases); see also
Caraballo v. Pliler, No. 21-CV-10476 (PMH), 2023 WL
3467185, at *8 (S.D.N.Y. May 15, 2023) (“Because the
[d]efendants' alleged deliberate indifference to the [p]laintiff's
COVID-19 symptoms did not result in any serious injury or
harm, the [p]laintiff's allegations would present a new Bivens
context that is much different from the life-threatening asthma
attack that the plaintiff suffered in Carlson.”) (citations and
quotation marks omitted). For example, in Rivera v. Fed.
Bureau of Prisons, the plaintiff brought a Bivens claim
alleging “deliberate indifference to the medical needs of a
person in federal custody[.]” No. 17-CV-05103 (GBD/DF),
2018 WL 11312146, at *8 (S.D.N.Y. Dec. 14, 2018), report
and recommendation adopted, 368 F. Supp. 3d 741 (S.D.N.Y.
2019). The Court recognized the plaintiff's claim as similar to
Carlson, but determined:
there [was] a key distinction between
the two [cases]: unlike in Carlson,
where medical personnel failed to
provide any medical treatment for
a life-threatening condition, [the
p]laintiff's Bivens claims centers
on whether he was constitutionally
entitled to a certain dosage of a drug
as part of a drug treatment program, in
which he admits he was placed.
Defendant's alleged deliberate indifference – namely, his
“failing to get [P]laintiff medical attention (SAC at 12) –
in this case did not result in any serious injury or harm to
Plaintiff. Because Plaintiff has failed to allege sufficiently
similar serious medical needs as the plaintiff in Carlson,
the Court finds that his Fifth Amendment claim presents a
new Bivens context. Cf. Mendoza, 615 F. Supp. 3d at 171
(concluding that the plaintiff's “claim that the defendants
were deliberately indifferent to his health bears an ‘extremely
strong resemblance’ to the Eighth Amendment deliberate
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indifference claim at issue in Carlson,” given that the plaintiff
was denied medical care after he “suffered lacerations and
bruises to his face, head, chest, back, wrists and legs ... [and
t]wo of his teeth, his jaw and his nose were broken, and
he urinated blood for two or three days”) (quoting Laurent,
2018 WL 2973386, at *5). The non-life-threatening nature of
Plaintiff's injuries presents a context different from Carlson.
B. Special Factors Analysis
*8 Having found that his Fifth Amendment claim arises in
a new context, the Court must now determine whether there
are special factors counselling hesitation against providing
Plaintiff with a Bivens remedy. As with Plaintiff's Fourth
Amendment claim, Defendant contends that “the existence
of an alternative remedial scheme—the FTCA—provides a
reason to think Congress might be better equipped to create
a damages remedy for Plaintiff's Fifth Amendment deliberate
indifference claim and, as such, alone ‘foreclose[s] a Bivens
action.’ ” (Def.’s MoL at 13-14 (quoting Egbert, 142 S. Ct.
at 1806).) As the Court explained earlier, it is unwilling
to determine that the FTCA alone is a sufficient alternate
remedy. See Powell, 2020 WL 5126392, at *10.
The Court does, however, find that, the existence of the Prison
Litigation Reform Act of 1995 (the “PLRA”), 42 U.S.C. §
1997e, counsels against recognizing Plaintiff's new Bivens
claim for deliberate indifference. 4 As the Supreme Court
has observed, after Carlson, “Congress passed the Prison
Litigation Reform Act of 1995, which made comprehensive
changes to the way prisoner abuse claims must be brought
in federal court” and evidenced “that Congress had specific
occasion to consider the matter of prisoner abuse and to
consider the proper way to remedy those wrongs.” Id. (citing
42 U.S.C. § 1997e). That the PLRA “does not provide
for a standalone damages remedy against federal jailers”
constitutes “legislative action suggesting that Congress does
not want a damages remedy,” and is thus a “factor counseling
hesitation” against recognizing a new Bivens claim. Bravo,
684 F. Supp. 3d at 125–26 (finding that absence of damages
remedy against federal prison officials in PLRA was a
factor counseling against recognizing a new Bivens claim for
inadequate medical treatment) (quoting Abbasi, 582 U.S. at
148–49). Moreover, the PLRA's scope squarely covers the
complaints Plaintiff raises here: “[T]he PLRA's exhaustion
requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some
other wrong,” including deliberate indifference to medical
needs. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct.
983, 152 L.Ed.2d 12 (2002). The PLRA's requirements
counsels against expansion of the Bivens remedy in this
case. Accordingly, Plaintiff's Fifth Amendment deliberate
indifference claim is dismissed.
*9 “Absent a Supreme Court decision creating a new
Bivens remedy on all fours with Plaintiff's alleged [Fifth
Amendment] Bivens Claim[ ], Plaintiff's Bivens Claim[ ]
cannot survive a motion to dismiss.” See Negron v. United
States, No. 19-CV-05442 (PMH), 2020 WL 5634304, at
*10 (S.D.N.Y. Sept. 21, 2020). There is no Supreme Court
decision that has created a new Bivens remedy which would
allow Plaintiff's claim to survive a motion to dismiss. As a
result, the Court dismisses his Fifth Amendment claim with
prejudice.
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss
the Second Amended Complaint is GRANTED in part and
DENIED in part.
Plaintiff's Fifth Amendment claim is dismissed with
prejudice. Defendant is directed to answer Plaintiff's Second
Amended Complaint by July 23, 2024. The parties are then
directed to complete and file a Case Management Plan and
Scheduling Order (blank form attached) by August 6, 2024.
Attachment
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Carattini v. Behun, Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 8
All Citations
Not Reported in Fed. Supp., 2024 WL 3274663
Footnotes
1 The Court construes Plaintiff's deliberate indifference claim as arising under the Fifth Amendment, which
applies to pretrial detainees, rather than the Eighth Amendment, which applies to those being “punished,”
because Plaintiff was, at most, a pretrial detainee at the time of the allegations in the SAC. See Cuoco v.
Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (“Because as a pretrial detainee [plaintiff] was not being ‘punished,’
the ‘cruel and unusual punishment’ proscription of the Eighth Amendment to the Constitution does not apply.
The district court correctly concluded that [plaintiff's] claims arise under the Due Process Clause of the Fifth
Amendment instead.) In addition, the Fifth Amendment is implicated in deliberate indifference claims brought
by pretrial detainees against federal actors. See Martinez v. D'Agata, No. 16 Civ. 44 (VB), 2019 WL 6895436,
at *7 (S.D.N.Y. Dec. 18, 2019).
2 Plaintiff brings his claims pursuant to 42 U.S.C. § 1983, but a Section 1983 cause of action applies to state, not
federal officers. Davis v. United States, No. 03 Civ. 1800, 2004 WL 324880, at *10 (S.D.N.Y. Feb. 19, 2004)
(“[A]n action brought pursuant to 42 U.S.C. § 1983 cannot lie against federal officers.”) (internal quotation
marks, citation, and alterations omitted). Here, Defendant is alleged to be a federal officer—specifically, a
DEA agent. (See SAC at 3.) “Where a plaintiff brings a Section 1983 claim against federal defendants in
error, the proper course of action is to construe the complaint as stating a cause of action under Bivens.”
Bueno Diaz v. Mercurio, 442 F. Supp. 3d 701, 706 (S.D.N.Y. 2020) (quoting Spinale v. U.S. Dep't of Agric.,
621 F. Supp. 2d 112, 119 (S.D.N.Y. 2009)); see also Tavarez v. Reno, 54 F.3d 109, 109–10 (2d Cir. 1995)
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Carattini v. Behun, Not Reported in Fed. Supp. (2024)
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(noting that the district court properly considered an action brought under § 1983 as an action under Bivens).
Accordingly, the Court construes the SAC as raising Biven claims.
3 The Second Circuit recently issued two non-precedential, summary orders affirming the district courts'
findings that the plaintiffs' Fourth Amendment Bivens claims presented a “new context.” See Cohen v. Trump,
No. 23-35, 2024 WL 20558, at *2–3 (2d Cir. Jan. 2, 2024) (affirming dismissal of Bivens claims alleging
unlawful seizure, based on “new context” presented by lawsuit against, among others, “officers and agents
of the [Bureau of Prisons] and the [Probation and Pretrial Services Office]”); Lewis v. Bartosh, No. 22-3060-
PR, 2023 WL 8613873, at *2 (2d Cir. Dec. 13, 2023) (affirming dismissal of Bivens claim alleging excessive
force, based on “new context” presented by suit against Deputy U.S. Marshals). “While not explaining their
application of the two-part test from Egbert with precision, the panels in Cohen and Lewis both relied on
the different agencies and federal officers involved, as well as the existence of an alternative remedy, in
declining to infer a Bivens cause of action in those cases.” See Gray v. Gomez, No. 19CV4746PKCLB, 2024
WL 1345656, at *5 (E.D.N.Y. Mar. 30, 2024); see also Cohen, 2024 WL 20558, at *2–3; Lewis, 2023 WL
8613873, at *1 (explaining that, “ ‘[i]f a claim arises in a new context’—such as if it involves a ‘a new category
of defendants’—or if there is an ‘alternative remedial structure,’ a Bivens remedy is generally ‘unavailable’
” (quoting Egbert, 596 U.S. at 492–93, 142 S.Ct. 1793)). By contrast, here, the Plaintiff's claims proceed
against the same agency and type of officer originally involved in Bivens. (See SAC at 3; Bivens, 403 U.S.
at 389.)
4 The PLRA defines a “prisoner” as “any person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions
of parole, probation, pretrial release, or diversionary program.” Id. § 1915(h). “ ‘Read broadly, this language
could arguably be interpreted to include’ all individuals ‘who are currently detained and who have in the past
been accused of, convicted of, or sentenced for a criminal offense.’ ” Jones v. Cuomo, 2 F.4th 22, 25–26
(2d Cir. 2021) (quoting Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2000)). In other words, “to fall within
the definition of ‘prisoner,’ the individual in question must be currently detained as a result of an accusation,
conviction, or sentence for a criminal offense.” Id. (quoting Gibson v. City Municipality of New York, 692 F.3d
198, 202 (2d Cir. 2012)) (emphasis in original). At the time of his alleged denial of medical treatment by
Defendant, Plaintiff was detained and in the custody of a Defendant as a result of being accused of a crime.
As a result, the PLRA is applicable to his claims. See Bravo v. U.S. Marshals Serv., 684 F. Supp. 3d 112,
126 (S.D.N.Y. 2023) (declining to extend Bivens to give pretrial detainee remedy for injuries he sustained
during detention in federal custody in part because of the existence of the PLRA).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 78 of 340

Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 5185047
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
David J. CASH, Plaintiff,
v.
BERNSTEIN, MD, Defendant.
No. 09 Civ.1922(BSJ)(HBP).
|
Oct. 26, 2010.
REPORT AND RECOMMENDATION 1
PITMAN, United States Magistrate Judge.
*1 TO THE HONORABLE BARBARA S. JONES, United
States District Judge,
I. Introduction
By notice of motion dated March 4, 2010 (Docket Item 11),
defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke
plaintiff's in forma pauperis (“IFP”) status on the ground that
plaintiff has previously had at least three Section 1983 actions
dismissed as frivolous, malicious or failing to state a claim
upon which relief could be granted, and has not shown that he
is in imminent danger of serious physical injury. Defendant
further seeks an order directing that the action be dismissed
unless plaintiff pays the full filing fee within thirty (30) days.
For the reasons set forth below, I respectfully recommend that
defendant's motion be granted.
II. Facts
Plaintiff, a sentenced inmate in the custody of the New
York State Department of Correctional Services, commenced
this action on or about January 12, 2009 by submitting his
complaint to the Court's Pro Se office. Plaintiff alleges, in
pertinent part, that he has “a non-healing ulcer that is gane
green [sic ]” and that defendant Bernstein “did not want
to treat the ulcer right” (Complaint, dated March 3, 3009
(Docket Item 2) (“Compl.”), at 3).
The action was originally commenced against two defendants
—Dr. Bernstein and Dr. Finkelstein. The action was dismissed
as to Dr. Finkelstein because the complaint contained no
allegations whatsoever concerning Dr. Finkelstein (Order
dated February 18, 2010 (Docket Item 9)).
On March 4, 2010, the sole remaining defendant—Dr.
Bernstein—filed the current motion. Plaintiff failed to submit
a response. Accordingly, on August 20, 2010, I issued an
Order advising plaintiff that if he wished to oppose the
motion, he must submit his opposition by September 15, 2010
and that after that date I would consider the motion fully
submitted and ripe for decision (Order dated August 20, 2010
(Docket Item 15)). The only submission plaintiff has made
in response to my Order is a multi-part form issued by the
New York State Department of Correctional Services entitled
“Disbursement or Refund Request.” 2 By this form, plaintiff
appears to request that the New York State Department of
Correctional Services pay the filing fee for this action. The
form is marked “Denied.”
III. Analysis
28 U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged. Although an indigent,
incarcerated individual need not prepay the filing fee at the
time at the time of filing, he must subsequently pay the fee,
to the extent he is able to do so, through periodic withdrawals
from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.
City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent
abuse of the judicial system by inmates, paragraph (g) of
this provision denies incarcerated individuals the right to
proceed without prepayment of the filing fee if they have
repeatedly filed meritless actions, unless such an individual
shows that he or she is in imminent danger of serious
physical injury. See Ortiz v. McBride, 380 F.3d 649, 658 (2d
Cir.2004) (“[T]he purpose of the PLRA ... was plainly to
curtail what Congress perceived to be inmate abuses of the
judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d
Cir.1997). Specifically, paragraph (g) provides:
*2 In no event shall a prisoner bring
a civil action or appeal a judgment
in a civil action or proceeding under
this section if the prisoner has, on
3 or more prior occasions, while
incarcerated or detained in any facility,
brought an action or appeal in a court
of the United States that was dismissed
on the grounds that it is frivolous,
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
malicious, or fails to state a claim upon
which relief may be granted, unless the
prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g).
If an inmate plaintiff seeks to avoid prepayment of the filing
fee by alleging imminent danger of serious physical injury,
there must be a nexus between the serious physical injury
asserted and the claims alleged. Pettus v. Morgenthau, 554
F.3d 293, 298 (2d Cir.2009).
Section 1915(g) clearly prevents plaintiff from proceeding
in this action without prepayment of the filing fee.
The memorandum submitted by defendant establishes that
plaintiff has had his IFP status revoked on at least four prior
occasions as a result of his repeatedly filing meritless actions.
• In 2005, plaintiff commenced an action in the United
States District Court for the Northern District of New
York seeking to have his infected leg amputated.
Nelson 3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007
WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter,
the Honorable Norman A. Mordue, Chief United States
District Judge, accepted and adopted the Report and
Recommendation of the Honorable David E. Peebles,
United States Magistrate Judge, that plaintiff had
brought three or more prior actions that had been
dismissed for failure to state a claim and that plaintiff's
IFP status should, therefore, be revoked. 2007 WL
4333776 at *1–*2.
• In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),
2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff
again filed an action concerning the medical care
he was receiving for his left leg. The Honorable
Thomas J. McAvoy, United States District Judge,
accepted the Report and Recommendation of Magistrate
Judge Peebles, and revoked plaintiff's IFP status and
dismissed the action on the ground that plaintiff had
previously commenced at least three actions that had
been dismissed on the merits. 2008 WL 3836387 at *1,
*7.
• In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)
(RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),
Judge McAvoy again revoked plaintiff's IFP status
on the ground that plaintiff had commenced three
or more actions that constituted “strikes” under
Section 1915(g) and had not shown an imminent
threat of serious physical injury. 2008 WL 268215
at *1–*2.
• Finally, in Nelson v. Chang, No. 08–CV–1261
(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,
2009), the Honorable Kiyo A. Matsumoto, United
States District Judge, also found, based on the
cases discussed above, that plaintiff had exhausted
the three strikes permitted by Section 1915(g)
and could not proceed IFP in the absence of a
demonstration of an imminent threat of serious
physical injury. 2009 WL 367576 at *2–*3.
*3 As defendant candidly admits, there is one case in which
plaintiff's leg infection was found to support a finding of an
imminent threat of serious physical injury sufficient to come
within the exception to Section 1915(g). Nelson v. Scoggy,
No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2
(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment
was subsequently granted for defendants in that case, and
the complaint was dismissed. Judge Mordue concluded that
there was no genuine issue of fact that plaintiff had received
adequate medical care for his leg wound and that the failure
of the leg to heal was the result of plaintiff's own acts of
self-mutilation and interference with the treatment provided.
Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009
WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009). 4
In light of the foregoing, there can be no reasonable dispute
that plaintiff has exceeded the three “strikes” allowed by
Section 1915(g) and that he cannot, therefore, proceed here
without prepaying the filing fee unless he demonstrates
an imminent threat of serious physical injury. Plaintiff has
declined to attempt to make this showing in response to
defendant's motion, and the only suggestion in the record
of serious physical injury is the bare statement in the
complaint that plaintiff “need[s] to go back to a wound speci
[a]list before the gane green [sic ] kills [him]” (Compl. at
5). “However, unsupported, vague, self-serving, conclusory
speculation is not sufficient to show that Plaintiff is, in fact,
in imminent danger of serious physical harm.” Merriweather
v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and
White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);
see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)
(imminent danger exception to Section 1915(g) requires
“specific fact allegations of ongoing serious physical injury,
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
or of a pattern of misconduct evidencing the likelihood
of imminent serious physical injury”). Given the plaintiff's
history, as set forth in the cases described above, I conclude
that this vague statement is insufficient to support a finding
that plaintiff is in imminent danger of serious physical
injury. 5
IV. Conclusion
Accordingly, for all the foregoing reasons, I find that plaintiff
has had three or more prior actions dismissed as being
frivolous, malicious or failing to state a claim and that
plaintiff's in forma pauperis status should, therfore, be
revoked. If your Honor accepts this recommendation, I further
recommend that the action be dismissed unless plaintiff pays
the filing fee in full within thirty (30) days of your Honor's
final resolution of this motion.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections. See also Fed.R.Civ.P. 6(a). Such objections (and
responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the
Honorable Barbara S. Jones, United States District Judge,
500 Pearl Street, Room 1920, and to the Chambers of the
undersigned, 500 Pearl Street, Room 750, New York, New
York 10007. Any requests for an extension of time for filing
objections must be directed to Judge Jones. FAILURE TO
OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT
IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155
(1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d
1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,
300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–
59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–
38 (2d Cir.1983).
All Citations
Not Reported in F.Supp.2d, 2010 WL 5185047
Footnotes
1 At the time the action was originally filed, the Honorable Leonard B. Sand, United States District Judge,
granted plaintiff's application for in forma pauperis status based on plaintiff's ex parte submission (Docket Item
1). Although the present application seeking to revoke plaintiff's in forma pauperis status is non-dispositive,
I address it by way of a report and recommendation to eliminate any appearance of a conflict between the
decision of a district judge and that of a magistrate judge.
2 Plaintiff sent this form directly to my chambers, and it has not been docketed by the Clerk of the Court. The
form will be docketed at the time this Report and Recommendation is issued.
3 It appears that plaintiff uses the names David J. Cash and Dennis Nelson interchangeably. In his complaint
in this matter, plaintiff states that the Departmental Identification Number, or DIN, assigned to him by the
New York State Department of Correctional Services (“DOCS”) is 94–B–0694 (Compl. at 7). DOCS inmate
account records submitted by plaintiff in connection with his application for IFP status indicate that DIN 94–
B–0694 is assigned to Dennis Nelson. In addition, the DOCS form described in footnote two bears the docket
number of this action, but is signed in the name of Dennis Nelson and was sent in an envelope identifying
the sender as Dennis Nelson. A subsequent action has been filed in this Court in which the plaintiff identifies
himself as Dennis Nelson but lists his DIN as 94–B–0694, the same DIN used by plaintiff here. Finally, plaintiff
has submitted nothing to controvert the assertion in defendant's papers that David Cash and Dennis Nelson
are the same person. In light of all these facts, I conclude that David Cash and Dennis Nelson are both
names used by plaintiff.
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
4 Although the form complaint utilized by plaintiff expressly asks about prior actions involving the same facts,
plaintiff disclosed only the Scoggy action and expressly denied the existence of any other actions relating
to his imprisonment (Compl. at 6).
5 Plaintiff has sent me several letters describing his wound and its symptoms in detail, and I have no doubt
that the wound is serious. However, in granting summary judgment dismissing an action last year based on
the same allegations, Judge Mordue of the Northern District found that there was no genuine issue of fact
that plaintiff's own conduct was responsible for the ineffectiveness of the treatment he was provided:
Furthermore, to the extent that Nelson's medical treatment was delayed, much of the delay was due to
his own refusal to cooperate with medical staff and his self-mutilations. Nelson's actions to thwart the
medical treatment of his wound cannot be construed as interference or indifference by anyone else.... [T]he
medical treatment Nelson received complied with constitutional guarantees as it was appropriate, timely,
and delayed only by Nelson's own actions.
Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.
Given plaintiff's total failure to respond to the pending motion and his failure to even deny that he is actively
thwarting treatment of his wound, it would be sheer speculation for me to conclude that he is in imminent
danger of a serious injury as a result of defendant's conduct.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 82 of 340

Cohen v. Trump, 145 S.Ct. 415 (Mem) (2024)
220 L.Ed.2d 170
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
145 S.Ct. 415
Supreme Court of the United States.
Michael D. COHEN, Petitioner,
v.
Donald J. TRUMP, former
President of the United States, et al.
No. 24-41
|
October 21, 2024
Case below, 2024 WL 20558.
Opinion
Petition for writ of certiorari to the United States Court of
Appeals for the Second Circuit denied.
All Citations
145 S.Ct. 415 (Mem), 220 L.Ed.2d 170
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 83 of 340

Escobar v. Correa, Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Salaman v. Carney, D.Conn., August 22, 2025
2024 WL 4042122
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Tyrel ESCOBAR, Plaintiff,
v.
Det. Luis CORREA, et al., Defendants.
22-CV-08434 (MMG)
|
Signed September 4, 2024
Attorneys and Law Firms
Stephanie Panousieris, Robert Howard Rickner, Rickner
PLLC, New York, NY, for Plaintiff.
Seema Kassab, New York, NY, for Defendants Declan
Ludington, Ryan Sheehan.
OPINION & ORDER
MARGARET M. GARNETT, United States District Judge:
*1 Plaintiff brings this action against various law
enforcement officers for their alleged use of excessive force
during his arrest on a fugitive warrant in October 2019. Before
the Court are two motions to dismiss the Third Amended
Complaint as against defendants Deputy U.S. Marshal Kevin
Kamrowski, Deputy U.S. Marshal Eric Kushi, Detective
Jaime Rosado, 1 and Detective Luis Correa. Dkt. Nos. 61 and
63. For the reasons that follow, the motions to dismiss are
GRANTED.
BACKGROUND
Plaintiff Tyrel Escobar (the “Plaintiff”) filed a complaint on
October 3, 2022, against John Does 1-10. Dkt. No. 1. He
subsequently amended the complaint three times and named
various defendants, filing a Third Amended Complaint on
June 23, 2023. Dkt. No. 39 (“Third Amended Complaint” or
“TAC”).
Plaintiff, through his Third Amended Complaint, alleges
the use of excessive force in violation of 42 U.S.C. §
1983 and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”). In the
Third Amended Complaint, Plaintiff named the following
individuals as defendants in their individual capacities:
Detective Luis Correa, Detective Jaime Rosado, Deputy
U.S. Marshal Kevin Kamrowski, Deputy U.S. Marshal Eric
Kushi, Sergeant Declan Ludington, Detective Ryan Sheehan,
and unnamed John Does 1-5 (U.S. Marshals and/or officers
or agents of the New York Police Department (“NYPD”))
(collectively, “Defendants”). TAC ¶¶ 6, 9, 12, 13, 14, 17,
20. Dets. Correa, Rosado, and Sheehan, and Sgt. Ludington
were, “at all times relevant,” NYPD officers employed by the
City of New York who were “deputized by the United States
Marshals Service Fugitive Task Force.” 2 Id. ¶¶ 6, 9, 14, 17.
The facts, as alleged by Plaintiff and assumed to be true for
purposes of the motions, are as follows:
On October 2, 2019, Plaintiff absconded from court 3 after
discovering that his bail had been revoked and went to a
family member's house in the Bronx. Id. ¶ 25.
Later the same day, five to six of the Defendants arrived
at the house to arrest Plaintiff. Id. ¶ 26. Plaintiff alleges
that he did not resist Defendants, but they nonetheless
used “brutal, retaliatory excessive force” against Plaintiff.
Id. ¶¶ 26–27. Defendants allegedly hit, kicked, tased, and
punched Plaintiff; verbally harassed and taunted Plaintiff;
encouraged one another to hit and tase Plaintiff; and boasted
and laughed about “how many blows or tasers they were
able to deploy during the attack.” Id. ¶¶ 26–29. Defendants
also allegedly dragged Plaintiff down multiple flights of stairs
while Plaintiff's hands were cuffed behind his back. Id. ¶ 31.
Some of this alleged conduct was purportedly caught on cell
phone video footage, and when Plaintiff was escorted from
the apartment, he had visible injuries, including a busted lip,
obvious redness, and bruising to his eye and cheek. Id. ¶¶
29–30. Additionally, after Defendants had dragged Plaintiff
down the stairs, he could “barely stand, ... appeared dizzy and
disoriented, and ... was bleeding out of at least one of his ears.”
Id. ¶ 31.
*2 Plaintiff was transported to a Bronx precinct and then
to Queens Central Booking, where additional officers placed
a bag over Plaintiff's head while Plaintiff remained cuffed;
those officers, including Det. Rosado, allegedly “assault[ed]
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Escobar v. Correa, Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
and batter[ed]” Plaintiff again while Plaintiff remained
restrained. Id. ¶¶ 32–33.
Det. Correa, Det. Rosado, Deputy U.S. Marshal Kamrowski,
and Deputy U.S. Marshal Kushi (the “Moving Defendants”)
have moved to dismiss the Third Amended Complaint. 4 In
their initial briefing on the motions, the Moving Defendants
largely argued that Plaintiff failed to state a claim upon which
relief can be granted because Plaintiff has no Bivens remedy
as a matter of law and because any Bivens claim would be
time-barred. 5 Joint Mem. at 4–18; Correa Mem. at 3–11.
In his opposition briefing, Plaintiff argued, inter alia, that,
even if no Bivens remedy were available, the Moving
Defendants are liable under 42 U.S.C. § 1983 (“§ 1983”)
because, despite their status as either Deputy U.S. Marshals
or deputized members of a federal task force, they acted under
the color of state law. Pl.'s Mem. Opp. Mots. Dismiss by
Defs. Correa, Kamrowski, Kushi, and Rosado, Dkt. No. 68,
at 4–10 (“Opp.”). The Moving Defendants' reply briefs then
addressed the Plaintiff's arguments that they could be liable
under § 1983 despite their status as federal law enforcement
agents. Def. Correa's Reply Mem., Dkt. No. 70, at 2–8
(“Correa Reply”); Defs. Kamrowski, Kushi, and Rosado's
Reply Mem., Dkt. No. 72, at 2–6 (“Joint Reply”). The Court
issued an Order explaining that it was inclined to consider
the Moving Defendants' arguments regarding dismissal of
Plaintiff's § 1983 claims and invited Plaintiff to file a sur-reply
further addressing the Moving Defendants' arguments. Dkt.
No. 73. Plaintiff subsequently filed a sur-reply. Dkt. No. 74.
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim only has “facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). 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.” Bell Atl.
Corp., 550 U.S. at 558.
When ruling on a motion to dismiss, the district court must
accept all factual allegations contained in the complaint
as true and draw all reasonable inferences in favor of the
plaintiff. See, e.g., Koch v. Christie's Int'l, PLC, 699 F.3d 141,
145 (2d Cir. 2012).
DISCUSSION
I. The Bivens Claims Must Be Dismissed
*3 The Court begins where all parties appear to agree:
Plaintiff has failed to state a claim under Bivens. 6
In his opposition briefing, Plaintiff acknowledges that his
Bivens claims as against the Moving Defendants are “likely
preclude[d]” under a recent Second Circuit decision. Opp. at
10.
In Bivens, the Supreme Court held that “even absent statutory
authorization, it would enforce [an implied] damages remedy
[under the Constitution] to compensate persons injured by
federal officers who violated the [Fourth Amendment's]
prohibition against unreasonable search and seizures.” Ziglar
v. Abbasi, 582 U.S. 120, 130–31 (2017). In the decades
following Bivens, the Supreme Court has strictly cabined
Bivens' reach. “[E]xpanding the Bivens remedy is now a
disfavored judicial activity,” id. at 135 (internal references
omitted), and “in all but the most unusual circumstances,
prescribing a cause of action is a job for Congress, not the
courts.” Egbert v. Boule, 596 U.S. 482, 486 (2022).
When a court is asked to infer a Bivens remedy, it must
first determine whether the case presents a context that is
“different in a meaningful way” from the three cases in
which the Supreme Court has implied a damages action under
the Constitution. See Ziglar, 582 U.S. at 139. Those three
cases involved claims against: “[federal narcotics] agents for
handcuffing a man in his own home without a warrant;” “a
Congressman for firing his female secretary;” and “prison
officials for failure to treat an inmate's asthma.” Id. at 140
(citing Bivens; Davis v. Passman, 442 U.S. 228 (1979); and
Carlson v. Green, 446 U.S. 14 (1980)).
While some differences are so trivial that they will not create
a new Bivens context, the Supreme Court has made it clear
that “even a modest extension is still an extension.” Ziglar,
582 U.S. at 147, 149; see also Egbert, 596 U.S. at 491 (“When
asked to imply a Bivens action, our watchword is caution.”)
(internal references omitted). A context may be “new” even
though the right at issue and the mechanism of injury are the
same. Ziglar, 582 U.S. at 139. For instance, a context may
be different than the three cases in which the Supreme Court
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implied a constitutional damages action because of the rank
of the officer involved or the federal agency employing the
defendant. See id. at 135, 139–40; see also Egbert, 596 U.S. at
494–98 (foreclosing an implied Fourth Amendment damages
action against a Customs and Border Patrol officer who had
allegedly used excessive force against the plaintiff).
*4 Where a case presents a new Bivens context, a Bivens
remedy is not available if “special factors indicat[e] that the
Judiciary is at least arguably less equipped than Congress to
weigh the costs and benefits of allowing a damages action
to proceed.” Egbert, 596 U.S. at 492 (internal references
omitted). Moreover, a Bivens remedy is unavailable “if
Congress already has provided, or has authorized the
Executive to provide, an alternative remedial structure,” even
if existing or alternative remedies do not provide complete
relief. Id. at 493 (internal references omitted).
The Second Circuit recently affirmed a district court's ruling
that a Bivens remedy was not available in a post-Egbert
case quite similar to this case. In Lewis v. Westfield, which
involved claims against various Deputy U.S. Marshals and
others, including for the use of excessive force against the
plaintiff in his home, a district judge in the Eastern District
of New York concluded that under Egbert, a Bivens remedy
was not available because the case presented a new category
of defendants from the three cases in which the Supreme
Court previously approved a Bivens remedy. 640 F. Supp.
3d 249, 253–54 (E.D.N.Y. 2022), aff'd sub nom. Lewis v.
Bartosh, No. 22-3060-pr, 2023 WL 8613873 (2d Cir. Dec. 13,
2023). The district court also observed that a Bivens remedy
was precluded in light of the alternative remedial schemes
created by federal statutes. Westfield, 640 F. Supp. 3d at 254–
55. The Second Circuit affirmed, stating: “The district court
concluded that several of the factors recognized in Egbert
precluded a Bivens remedy here, including the professional
identity of [d]efendants-[a]ppellees (Deputy Marshals, rather
than federal narcotics agents) and the existence of an
alternative remedial scheme through which the Directors of
the Marshals Service must investigate reported misconduct.”
Bartosh, 2023 WL 8613873, at *2; 7 see also Cohen v. Trump,
No. 23-35, 2024 WL 20558, at *2 (2d Cir. Jan. 2, 2024)
(affirming, in a summary order, the district court's denial of a
Bivens remedy where the defendants were a former President,
former Attorney General, and multiple officers and agents
of the Bureau of Prisons and Pre-trial Services); Edwards v.
Gizzi, 107 F.4th 81 (2d Cir. 2024) (affirming district court's
denial of Bivens remedy in excessive force case against
Deputy U.S. Marshals and others, albeit in two concurrences
with different reasoning).
Similarly to Westfield, this case involves meaningful
differences from the three cases in which the Supreme Court
previously approved a Bivens remedy. Among the differences
—which need not be detailed exhaustively here—Defendants
were Deputy U.S. Marshals and deputized members of a
U.S. Marshals Service (“USMS”) Fugitive Task Force, thus
presenting a new category of defendants. See id. Moreover,
Defendants were acting pursuant to a different legal authority
than the three Supreme Court cases; they were carrying out
an arrest warrant at a third party's residence pursuant to the
USMS's federal statutory authority, rather than, as in Bivens,
carrying out an arrest without a warrant in the plaintiff-
arrestee's own home. See Westfield, 640 F. Supp. 3d at 254.
*5 Because this case provides a new context for the
application of Bivens, the operative question becomes
whether special factors counsel hesitation in extending
Bivens. As in Westfield, an implied constitutional damages
remedy is precluded here because of the existence of an
alternative remedial scheme. In addition to the availability of
the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–80;
see also Edwards v. Gizzi, No. 20-cv-07371 (KMK), 2022
WL 309393, at *8–9 (S.D.N.Y. Feb. 2, 2022), aff'd 107
F.4th 81 (2d Cir. 2024), there is direct recourse within the
Marshal Service: “by regulation, the Director [of USMS]
‘shall’ investigate ‘alleged improper conduct on the part
of U.S. Marshal Service personnel.’ Anyone aggrieved by
a Deputy Marshal's conduct may file a grievance alleging
improper conduct.” Westfield, 640 F. Supp. 3d at 254 (citing
28 C.F.R. § 0.111(n)). Moreover, the Attorney General
must “ensure that ‘any component’ of the Department that
receives a ‘nonfrivolous allegation of criminal wrongdoing or
administrative misconduct by an employee of the Department
of Justice ... shall report that information to the Inspector
General.’ ” Id. (citing 5 U.S.C. App. § 8E(d)) (current
version at 5 U.S.C. § 413(d)). In turn, the Inspector
General is authorized to “ ‘investigate allegations of criminal
wrongdoing or administrative misconduct by an employee
of the Department of Justice,’ ‘refer such allegations to
the Office of Professional Responsibility,’ or refer them to
‘the internal affairs office of the appropriate component’ of
the Department, including the USMS.” Id. (citing 5 U.S.C.
App. § 8E(b)(2)) (current version at 5 U.S.C. § 413(b)(2)).
Public channels are available to make complaints under both
remedies. See id.
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Accordingly, no Bivens remedy is available in this case and
the Moving Defendants' motions to dismiss the Bivens claims
are granted.
II. The Claims Under 42 U.S.C. § 1983 Must Be
Dismissed
In addition to his Bivens claims, Plaintiff alleges that
Defendants are liable under § 1983 for their use of excessive
force. See TAC ¶ 40.
A. The Section 1983 Arguments Are Not Waived
As a preliminary matter, Plaintiff appears to argue in his
opposition brief to the motions to dismiss that the Moving
Defendants did not brief or address the availability of claims
under § 1983 in their opening briefs and thus have waived
arguments regarding those claims. Opp. at 9–10.
In his opening brief, Det. Correa noted in a footnote that to the
extent Plaintiff was alleging a § 1983 claim, the claim should
be dismissed because such actions are not properly brought
against federal employees. Correa Mem. at 2 n.2 (citing
cases). Det. Rosado, Deputy U.S. Marshal Kamrowski, and
Deputy U.S. Marshal Kushi did not directly address the §
1983 claim in their opening brief. See Joint Mem. However,
in his opposition brief, Plaintiff argued at length that the
case against the Moving Defendants should not be dismissed
because even if there was no legal remedy under Bivens, they
could be held liable under § 1983. See Opp. at 4–10. In their
reply briefs, all of the Moving Defendants responded fully to
the § 1983 claims. See Correa Reply at 2–8; Joint Reply at
2–6.
District courts need not consider arguments or requests for
relief raised for the first time in reply briefs. In re Various
Grand Jury Subpoenas, 235 F. Supp. 3d 472, 485 (S.D.N.Y.
2017). Arguments newly raised in reply briefs generally are
not considered because the opposing party may not have an
adequate opportunity to respond. Id. However, the Second
Circuit has made clear that district courts have discretion to
consider a belatedly raised argument, and a judge's decision
to countenance such an argument is reviewed only for abuse
of discretion. See Ruggiero v. Warner-Lambert Co., 424 F.3d
249, 252 (2d Cir. 2005).
Here, as explained, Det. Correa raised the § 1983 claim in
his opening brief, arguing that such a claim (if made) is not
properly brought against federal employees and that, because
Det. Correa (an NYPD detective) was acting in the capacity of
a federal task force agent, Plaintiff's claims must be analyzed
under Bivens. Correa Mem. at 2 n.2. While the other Moving
Defendants did not raise arguments about this issue until
filing their joint reply brief, for reasons of judicial efficiency
and fairness, this Court will consider their arguments as to
dismissal of the § 1983 claims.
Where one defendant, Det. Correa, raised arguments
regarding the inapplicability of the claims in his opening brief
and Plaintiff had the opportunity to respond (and did, in fact,
address the argument in detail), Plaintiff cannot claim that he
was “blindsided” by the Moving Defendants' arguments as to
Plaintiff's failure to state a claim under § 1983. See Ruggiero,
424 F.3d at 252; see also Bayway Refining Co. v. Oxygenated
Mktg. and Trading A.G., 215 F.3d 219, 226–27 (2d Cir.
2000); Kingstown Cap. Mgmt., L.P. v. Vitek, No. 20-3406,
2022 WL 3970920, at *1 (2d Cir. 2022) (with respect to a
motion to dismiss, plaintiffs were not prejudiced or taken
by surprise when the district court considered foreign-law
expert's affidavit attached to defendants' reply briefs because
plaintiffs had filed a similar affidavit with their opposition
papers).
*6 Moreover, Plaintiff was explicitly given notice that
this Court was inclined to consider the Moving Defendants'
arguments regarding the § 1983 claims, and Plaintiff was
given leave to file a sur-reply addressing that issue. Dkt.
No. 73. Plaintiff then filed a sur-reply and thus had a full
opportunity to be heard on the issue and to respond to any
additional arguments made in the Moving Defendants' reply
briefs. Pl.'s Sur-Reply Mem., Dkt. No. 74 (“Sur-Reply”). See
Ruggiero, 424 F.3d at 252 (“[I]t is hard for [the plaintiff] to
claim unfair prejudice now, because she could have claimed
surprise in the district court and sought to file a responsive
sur-reply.”); A. Hotel Int'l Grp., Inc. v. OneBeacon Ins. Co.,
611 F. Supp. 2d 373, 375 (S.D.N.Y. 2009) (district courts
have discretion to consider arguments first raised in reply
briefs, which discretion can be exercised by either ignoring
the new arguments or granting permission for a sur-reply). As
such, Plaintiff is not prejudiced by this Court's consideration
of the Moving Defendants' arguments regarding the § 1983
claims, and considering all claims together is in the interests
of judicial efficiency.
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B. Plaintiff Fails to State a Claim Under
§ 1983 Against the Moving Defendants
The Supreme Court has explained that “[t]he purpose of §
1983 is to deter state actors from using the badge of their
authority to deprive individuals of their federally guaranteed
rights and to provide relief to victims if such deterrence fails.”
Wyatt v. Cole, 504 U.S. 158, 161 (1992) (emphasis added).
In order to prevail on a claim under § 1983, a plaintiff must
show the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws by a person acting under
the color of state law. Bryant v. Steele, 25 F. Supp. 3d 233,
246 (E.D.N.Y. 2014).
Here, citing, inter alia, to Baez v. JetBlue Airways, 745 F.
Supp. 2d 214 (E.D.N.Y. 2010) and Kletschka v. Driver, 411
F.2d 436 (2d Cir. 1969), Plaintiff argues that the Moving
Defendants were acting under the color of state law because
(1) the State of New York issued the arrest warrant for
Plaintiff and thus the state “compelled” the conduct at issue;
(2) the Moving Defendants acted in concert with the state by
acting jointly with the NYPD; and (3) the Moving Defendants
were policing and enforcing state laws, which are functions
traditionally performed by the state. See Opp. at 6–10.
In order for conduct causing deprivation of a federal right to
be attributable to the state: (1) the alleged deprivation must
be “caused by the exercise of some right or privilege created
by the State or by a rule of conduct imposed by the state or
by a person for whom the State is responsible;” and (2) “the
party charged with the deprivation must be a person who may
fairly be said to be a state actor.” Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 937 (1982). As to the second requirement,
a party may fairly be said to be a state actor “because he
is a state official, because he has acted together with or has
obtained significant aid from state officials, or because his
conduct is otherwise chargeable to the State.” Id.; see also
Baez v. JetBlue Airways, 745 F. Supp. 2d at 221.
Generally, a state employee acts under color of state law while
acting in his or her official capacity or while exercising his or
her responsibilities pursuant to state law. See West v. Atkins,
487 U.S. 42, 50 (1988). Federal actors can potentially be held
liable under § 1983 under extremely limited circumstances
where their conduct “is the joint product of the exercise of a
State power and of a non-State power” and where “the state or
its officials played a significant role in the result.” Kletschka,
411 F.2d at 449 (internal references omitted). Cooperation
between state and federal bureaucracies is insufficient; federal
actors must have “acted with an improper motive” rather than
just in a “spirit of cooperation” with the state defendants.
See Beechwood Restorative Care Center v. Leeds, 436 F.3d
147, 154–55 (2d Cir. 2006). Moreover, federal officers who
“conspire[ ] with a state officer may act under color of state
law, but since federal officials typically act under color of
federal law, they are rarely deemed to have acted under the
color of state law.” Arar v. Ashcroft, 585 F.3d 559, 568 (2d Cir.
2009) (internal references omitted) (emphasis in original).
*7 Here, the absence of action “under the color of state
law,” as opposed to federal law, is fatal to Plaintiff's claims
under § 1983 as to the Moving Defendants, all of whom were
either Deputy U.S. Marshals or deputized members of the
federal Marshals Fugitive Task Force. Courts in this Circuit
have consistently held that federal task forces act pursuant
to federal, not state, law; as such, members of the federal
task force act pursuant to federal law and a federal grant
of authority. See Guerrero v. Scarazzini, 274 F. App'x 11,
11 n.1 (2d Cir. 2008); Ochoa v. Bratton, No. 16-cv-2852
(JGK), 2017 WL 5900552, at *6 (S.D.N.Y. Nov. 28, 2017);
Aikman v. Cnty. of Westchester, 691 F. Supp. 2d 496, 498–
99 (S.D.N.Y. 2010). This is true even when the task force
is acting to investigate or enforce state crimes. See Pou v.
U.S. Drug Enforcement Admin., 923 F. Supp. 573, 576, 579
(S.D.N.Y. 1996). Additionally, state officers who have been
deputized by a federal task force and are acting in their
capacity as federal officers on the task force are equally acting
under the color of federal, not state, law for the purposes of
the activities carried out by the task force. See, e.g., id. at
579; Morales v. City of New York, No. 11-cv-05407 (PAC),
2012 WL 13388990, at *3 (S.D.N.Y. Dec. 5, 2012); see also
Boudette v. Sanders, No. 18-cv-02420 (CMA) (MEH), 2019
WL 3935168, at *17 (D. Colo. Aug. 19, 2019). 8
Specifically as to USMS Fugitive Task Forces, every court
to have considered the issue has held that these Task Forces
and their members (including deputized local or state law
enforcement) are acting pursuant to federal law and federal
authority, and Plaintiff cites to no authority holding otherwise.
As a general background, the USMS is authorized to deputize
“federal, state, or local law enforcement officers whenever
the law enforcement needs of the U.S. Marshals Service
so require.” 28 C.F.R. § 0.112(b). The USMS is further
expressly authorized to “investigate such fugitive matters,
both within and outside the United States, as directed by
the Attorney General.” 28 U.S.C. § 566(e)(1)(B). Indeed, in
the Presidential Threat Protection Act of 2000, 34 U.S.C.
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§ 41503(a), Congress specifically directed the Attorney
General to establish “permanent Fugitive Apprehension Task
Forces consisting of Federal, State, and local law enforcement
authorities ... to be directed and coordinated by the United
State Marshals Service, for the purpose of locating and
apprehending fugitives.” See generally James v. City of
Rochester, 673 F. Supp. 3d 279, 285 (W.D.N.Y. 2023). As
such, these task forces plainly derive their authority from
federal, not state, law.
The fact that the USMS Task Force at issue in this case
was executing a state warrant does not alter the analysis,
nor does the presence of deputized state law enforcement
officers on the task force change the federal nature of the
conduct. See, e.g., James, 673 F. Supp. 3d at 287; Martinez
v. D'Agata, No. 16-cv-00044 (VB), 2019 WL 6895436, at
*5 n.5 (S.D.N.Y. Dec. 18, 2019) (members of the USMS's
New York/New Jersey Regional Fugitive Task Force were
acting under federal law, even where the warrant was issued
by New York state in connection with violations of state law,
and where the relevant task force members included deputized
state law enforcement officers); Hester-Bey v. Donaruma,
No. 14-cv-03903 (CBA) (LB), 2017 WL 1148613, at *3 n.1
(E.D.N.Y. Mar. 24, 2017) (plaintiff failed to state a claim
under § 1983 because defendants, who had acted pursuant to
a bench warrant issued by a state court, were U.S. Marshals
or local law enforcement agents deputized as Special Deputy
Marshals and were thus not acting under color of state law).
*8 Here, the Moving Defendants were “[a]t all times
relevant [to the Third Amended Complaint] ... deputized by
the United States Marshals Service Fugitive Task Force,” see
TAC ¶¶ 6, 9, or were “[a]t all times relevant [to the Third
Amended Complaint] ... United States Marshal[s] employed
by the United States Marshals Service,” see id. ¶¶ 12, 13,
and thus were acting under the color of federal law. Plaintiff
does not otherwise allege an illegal conspiracy between state
and federal actors; he only alleges that the federal task force
included certain state employees and was acting as a result
of the violation of state law. But this is plainly insufficient.
See Boudette, 2019 WL 3935168, at *17; see also Beechwood
Restorative Care Center, 436 F.3d at 154–55.
Plaintiff argues that the framework here, well-established
in the courts of the Second Circuit, would allow state law
enforcement officers to “eschew liability under § 1983 based
on their status as a federal officer.” Opp. at 8. To the extent that
Plaintiff's concern is specifically about liability under § 1983,
he is correct—except under extremely limited circumstances
not present here, persons who are federal officers under
the law, including state law enforcement officers acting as
deputized federal task force members, cannot be sued under
§ 1983. However, as discussed above, that does not mean
no remedy exists at all for allegations of wrongdoing against
federal officers, or those acting in their capacity as federal
officers. See, e.g. Westfield, 640 F. Supp. 3d at 254 (discussing
USMS internal grievance process and citing 28 C.F.R. §
0.111(n)); Sosa v. Bustos, No. 17-cv-00417 (ER), 2020 WL
1940550, at *4 (S.D.N.Y. Apr. 22, 2020) (discussing Federal
Tort Claims Act); Aikman, 691 F. Supp. 2d at 498 (citing 5
U.S.C. § 3374(c) and 21 U.S.C. § 878(b) for principle that
state and local law enforcement officers designated as federal
task force members are treated as federal employees for the
purposes of any federal tort liability statutes).
Accordingly, the motions to dismiss Plaintiff's claims under §
1983 as against the Moving Defendants are also granted.
CONCLUSION
Because Plaintiff has failed to state a claim upon which relief
can be granted against the Moving Defendants, the Court
need not reach the issue of whether Plaintiff's claims against
the Moving Defendants are time-barred. For the foregoing
reasons, the Moving Defendants' motions to dismiss are
GRANTED.
All Citations
Not Reported in Fed. Supp., 2024 WL 4042122
Footnotes
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1 Plaintiff's Third Amended Complaint refers to Det. Rosado as “Jamie Rosado.” Det. Rosado has clarified
through counsel that his first name is “Jaime” Rosado. Defs. Kamrowski, Kushi, and Rosado's Mem. Supp.
Mot. Dismiss, Dkt. No. 62, at 1 n.1 (“Joint Mem.”).
2 Det. Rosado and Deputy U.S. Marshals Kamrowski and Kushi note that in spite of Plaintiff's allegations, “upon
information and belief, defendants Ludington and Sheehan are NYPD officers who were not deputized by the
U.S. Marshals Service Fugitive Task Force.” Joint Mem. at 2 n.2. This issue does not bear on the disposition
of this Opinion, although the assertion is consistent with Det. Sheehan and Sgt. Ludington's answer to the
Third Amended Complaint. Dkt. No. 43.
3 Although the Third Amended Complaint merely states that Plaintiff “absconded from court,” TAC ¶ 25, it
appears from the briefing on the motions to dismiss that the relevant court was the New York state court
located in Queens County.
4 Det. Correa filed one motion to dismiss (Dkt. No. 63), and Det. Rosado, Deputy U.S. Marshal Kamrowski,
and Deputy U.S. Marshal Kushi separately filed a joint motion to dismiss (Dkt. No. 62).
5 Det. Correa was the only Moving Defendant to specifically note in his briefing papers that, to the extent
Plaintiff alleges a claim under 42 U.S.C. § 1983, the claim should be dismissed because the claim is not
properly brought against federal employees, and Det. Correa's participation in Plaintiff's arrest was in his
capacity as a federal task force agent (both as alleged in the TAC and as uncontested by Det. Correa). Def.
Correa's Mem. Supp. Mot. Dismiss, Dkt. No. 64, at 2 n.2 (“Correa Mem.”).
6 In his brief opposing the motions to dismiss, Plaintiff effectively concedes that Lewis v. Bartosh, No. 22-3060-
pr, 2023 WL 8613873 (2d Cir. Dec. 13, 2023), bars his Bivens claim here, but wrote, “While a Bivens remedy
may now be foreclosed by Lewis, it was not at the time of filing, and Plaintiff reserves his right to challenge
the Circuit's holding as wrongly decided based on [district court] precedent permitting excessive force cases
under Bivens, as well as allowing actions against federal law enforcement, including U.S. Marshals.” Opp. at
10–11. The Court assumes that Plaintiff is asserting his right to raise this issue in the Court of Appeals at the
appropriate time (and properly preserving his ability to do so), rather than before this Court, which is bound
to apply the controlling law set forth in Egbert and Bartosh.
7 The Circuit's affirmance rested solely on the district court's “new category of defendants” finding, as the
plaintiff did not challenge the district court's “alternative remedies” finding on appeal. However, the “alternative
remedies” finding is well-supported in the governing caselaw. See, e.g., Egbert, 596 U.S. at 493; Ziglar, 582
U.S. at 137.
8 Plaintiff points to Lake Country Ests., Inc. v. Tahoe Reg'l Plan. Agency, 440 U.S. 391, 399 (1979), for the
proposition that “federal authorizing legislation does not preclude § 1983 liability against persons or entities
who engage in state action.” Sur-Reply at 1. In Lake Country Ests., Inc., the Supreme Court found that
conduct undertaken under an interstate Compact occurred under the color of state law, in part because the
“Compact had its genesis in the actions of the compacting States” and the states implemented the agency
contemplated by the Compact, notwithstanding that congressional consent to the Compact was required.
440 U.S. at 399. Here, in contrast, as explained infra, the Fugitive Task Force had its “genesis” entirely in
federal action. Likewise, Plaintiff's references in his sur-reply to cases from other circuits involving dissimilar
factual circumstances are inapposite. Sur-Reply at 2–4.
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Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 5002215
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Laytonia FLAGG, Plaintiff,
v.
NYS DIVISION OF PAROLE; Mark Saben,
Parole Officer; Syracuse Police Dept.; Detective
William Summers, ID#409; D.P. Proud, ID#
0140; Richard Curran, ID# 0066; William
J. Fitzpatrick, Onondaga County, District
Attorney; and Sean Chase, D.A., Defendants.
5:19-CV-886 (TJM/ATB)
|
Signed 08/15/2019
Attorneys and Law Firms
LAYTONIA FLAGG, Plaintiff pro se
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk has sent me an amended 1 civil rights
complaint filed by pro se plaintiff Laytonia Flagg. (Dkt. No.
3). Plaintiff Flagg has also filed an application to proceed in
forma pauperis (“IFP”). (Dkt. No. 4).
I. IFP Application
A review of plaintiff's IFP application shows that she declares
she is unable to pay the filing fee. (Dkt. No. 4). The court finds
that plaintiff meets the financial criteria for IFP status.
In addition to determining whether plaintiff meets the
financial criteria to proceed IFP, the court must also consider
the sufficiency of the allegations set forth in the complaint
in light of 28 U.S.C. § 1915, which provides that the court
shall dismiss the case at any time if the court determines that
the action is (i) frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissal of frivolous actions is appropriate to prevent abuses
of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505
F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to
show liberality toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and has had an
opportunity to respond, the court still has a responsibility
to determine that a claim is not frivolous before permitting
a plaintiff to proceed. Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that
a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Bell
Atl. Corp., 550 U.S. at 555). The court will now turn to
a consideration of the plaintiff's complaint under the above
standards.
II. Complaint
Plaintiff states that she is the mother of Mario Leslie, who at
the time of the incidents described in the complaint, was on
parole. (Amended Complaint (“AC”) at 1). 2 On August 8,
2016, defendant New York State Parole Officer (“PO”) Mark
Saben went to Mr. Leslie's home at 514 Marcellus Street in
Syracuse, New York, to conduct a “standard home visit.” 3
(Id.) Mr. Leslie lived at the Marcellus Street address with
his girlfriend, Tamacha Rodriguez. (Id.) Plaintiff claims that
Ms. Rodriguez answered the door for PO Saben, and that
Mr. Leslie was “summoned” from his bedroom to speak with
defendant Saben. (Id.) After some discussion, PO Saben was
walking toward the front door, when he spotted some glassine
packets “known to contain heroin.” (Id.) Upon discovering
the glassine packets, defendant Saben informed Mr. Leslie
that he was going to conduct a search of the entire residence
according to the conditions of his parole release. (Id.)
*2 Plaintiff states that, as a result of the subsequent
search, the officer discovered a safe, containing a loaded
firearm and $31,925 in United States currency. Defendant
Saben also discovered a key chain on which were a set
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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)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 8
New York State law under N.Y. Civ. Prac. L & R. 1327 (Proceedings to Determine Adverse Claims), which
plaintiff could have filed within six months of the stipulation, signed by Mr. Leslie.
15 To the extent that the complaint could be interpreted as suing either ADA Chase or DA Fitzpatrick in their
“official capacities,” the Eleventh Amendment would bar any such suit. See Blessinger v. City of New York,
No. 17-CV-108, 2017 WL 3841873, at *1-2 (S.D.N.Y. Sept. 1, 2017) (prosecutors are entitled to Eleventh
Amendment immunity when they are acting in their prosecutorial capacity because they are acting as state
officials rather than city or county employees) (citing Peterson v. Tomaselli, 469 F. Supp. 2d 146, 157
(S.D.N.Y. 2007) and Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988) (when prosecuting a criminal matter,
a district attorney in New York State represents the State not the County)).
16 Although plaintiff has included a proposed summons for Sgt. Llukaci, this individual is not listed in the caption
of the AC, nor is he included in the section of the form-AC which lists the individual Syracuse Police Officers.
(AC ¶ 3(c)) for whom she has included identification numbers. In any event, plaintiff's only allegations against
Sgt. Llukaci are that he sent defendants Proud and Summers to Mr. Leslie's Marcellus St. home after the
parole officers found contraband therein. Plaintiff does not allege that he was personally involved in any of
the conduct that she claims violated her constitutional rights. He was not at either residence and was not
involved in obtaining the allegedly invalid warrant. Thus, to the extent that plaintiff is trying to sue Sgt. Llukaci,
the AC may be dismissed as against this defendant.
17 The court does note that section 1311(7) provides that an innocent owner may challenge the forfeiture and
regain the forfeited property if the owner never received notice of the forfeiture. In addition, section 1327
provides for an “interested person” to bring a proceeding to determine adverse claims, even after the forfeiture
action was settled by stipulation. See Tupi Cambios, S.A. v. Morganthau, 48 A.D.2d 278 (1st Dep't 2008). In
Tupi Cambios, the District Attorney was the proper “defendant” in New York State Court.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 98 of 340

Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 4963112
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Laytonia FLAGG, Plaintiff,
v.
NYS DIVISION OF PAROLE; Mark Saben,
Parole Officer; Syracuse Police Dept.; Detective
William Summers, ID#409; D.P. Proud, ID#
0140; Richard Curran, ID# 0066; William
J. Fitzpatrick, Onondaga County, District
Attorney; and Sean Chase, D.A., Defendants.
5:19-CV-886
|
Signed 10/08/2019
Attorneys and Law Firms
Laytonia Flagg, Syracuse, NY, pro se.
DECISION & ORDER
THOMAS J. McAVOY, Senior United States District Judge
I. INTRODUCTION
*1 This pro se action brought pursuant to 42 U.S.C. § 1983
was referred to the Hon. Andrew T. Baxter, United States
Magistrate Judge, for a Report and Recommendation pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3(c). In his Order
and Report-Recommendation dated August 15, 2019 (Dkt.
No. 7), Magistrate Judge Baxter grants Plaintiff's application
to proceed in forma pauperis, and examines the sufficiency of
the allegations set forth in the Amended Complaint (“AC”) in
light of 28 U.S.C. § 1915. He recommends that the AC (Dkt.
No. 3) be dismissed in its entirety as against defendants N.Y.S.
Division of Parole, Syracuse Police Department, William J.
Fitzpatrick, and Sean Chase; that to the extent that the AC
may be read as naming Sgt. Llukaci or PO Rigby, the AC be
dismissed without prejudice for failure to state a claim; and
that if the Court adopts these recommendations that the case
be returned to him for further proceedings, including an order
serving the remaining defendants Saben, Summers, Proud,
and Curran. No objections to the Report-Recommendation
have been filed, and the time to do so has expired.
II. DISCUSSION
After examining the record, this Court has determined that the
Order and Report-Recommendation is not subject to attack
for plain error or manifest injustice.
III. CONCLUSION
Accordingly, the Court ACCEPTS and ADOPTS the
recommendations in the Order and Report-Recommendation
(Dkt. No. 7) for the reasons stated therein. Therefore, it is
hereby
ORDERED that Plaintiff's Amended Complaint (Dkt. No. 3)
is DISMISSED IN ITS ENTIRETY as against defendants
N.Y.S. DIVISION OF PAROLE, SYRACUSE POLICE
DEPARTMENT, WILLIAM J. FITZPATRICK, and SEAN
CHASE, and it is further
ORDERED that to the extent the Amended Complaint may
be read as naming SGT. LLUKACI or PO RIGBY, it is
DISMISSED WITHOUT PREJUDICE for failure to state
a claim, and it is further
ORDERED that the case be returned to Magistrate Judge
Baxter for further proceedings, including an order serving the
remaining defendants: SABEN, SUMMERS, PROUD, and
CURRAN.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 4963112
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 99 of 340

German-Andujar v. U.S. Customs and Border Protection, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Salaman v. Carney, D.Conn., August 22, 2025
2025 WL 1101514
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Silvestre GERMAN-ANDUJAR, Plaintiff,
v.
U.S. CUSTOMS AND BORDER PROTECTION;
Unknown Border Patrol Agent, Defendants.
6:24-CV-06190 EAW
|
Signed April 14, 2025
Attorneys and Law Firms
Silvestre German-Andujar, Lockport, NY, Pro Se.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
*1 Pro se plaintiff Silvestre German-Andujar (“Plaintiff”),
filed a complaint and amended complaint seeking relief
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). (Dkt. 1; Dkt.
4). His claims arise from the alleged use of excessive force
by border patrol agents during the execution of a search on
January 4, 2024. (Dkt. 4 at 5). He alleges violations of the
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution, and he requests compensatory
damages. (Id. at 4, 5). Plaintiff also has filed a motion for
leave to proceed in forma pauperis and a motion to appoint
counsel. (Dkt. 2; Dkt. 6).
For the reasons that follow, Plaintiff's application to proceed
in forma pauperis (Dkt. 2) is granted, his motion to appoint
counsel (Dkt. 6) is denied as moot, and the amended
complaint (Dkt. 4) is dismissed under 28 U.S.C. § 1915(e)(2)
(B) for failure to state a claim without leave to amend.
DISCUSSION
Because Plaintiff meets the statutory requirements of 28
U.S.C. § 1915(a), he is granted permission to proceed in
forma pauperis, and the Court must screen the amended
complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(a). 1
I. LEGAL STANDARDS
Section 1915 “provide[s] an efficient means by which a court
can screen for and dismiss legally insufficient claims.” Abbas
v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v.
Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The Court shall
dismiss a complaint filed by an individual proceeding in
forma pauperis if the Court determines that the action “(i)
is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B).
In evaluating a complaint, a court must accept all factual
allegations as true and must draw all inferences in a 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 a plaintiff
“need only ‘give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.’ ” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)); see also Boykin
v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008) (“[E]ven
after Twombly, dismissal of a pro se claim as insufficiently
pleaded is appropriate only in the most unsustainable of
cases.”). Although “a court is obliged to construe [pro se]
pleadings liberally, particularly when they allege civil rights
violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d
Cir. 2004), even pleadings submitted pro se must meet the
notice requirements of Rule 8 of the Federal Rules of Civil
Procedure, Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir.
2004).
*2 Generally, a court will afford a pro se plaintiff an
opportunity to amend or to be heard prior to dismissal “unless
the court can rule out any possibility, however unlikely it
might be, that an amended complaint would succeed in stating
a claim.” Abbas, 480 F.3d at 639 (internal quotation marks
omitted). But leave to amend pleadings may be denied when
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German-Andujar v. U.S. Customs and Border Protection, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
any amendment would be futile. See Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000).
II. PLAINTIFF'S ALLEGATIONS
On January 4, 2024, Plaintiff attempted to flee “during a
search that was unwarranted” in Ransomville, New York.
(Dkt. 4 at 5). 2 An unnamed border patrol officer “tackled
[and] beat” Plaintiff, causing him to sustain a “dislocated
broken shoulder.” (Id.). The agents then “intentionally
ignore[ed] [his] injury [and] pain and suffering to question
[him] ... [without] a translator ... [or] a lawyer.” (Id.).
Plaintiff alleges that the officials were attempting “to force an
‘admission’ ” and “knew about” his broken shoulder. (Id.).
They “denied [and] delayed treatment for hours knowingly
[and] deliberately.” (Id.).
Read liberally, Plaintiff's amended complaint can be
construed to assert claims against U.S. Customs and Border
Patrol employees for unlawful arrest, search and seizure,
denial of medical treatment, and excessive force as well as
violations of the Fifth and Sixth Amendments to the United
States Constitution. Because U.S. Customs and Border Patrol
is a federal agency, the Court construes the complaint under
Bivens. 3
III. BIVENS CLAIMS
A Bivens action affords “the victims of a constitutional
violation by a federal agent ... a right to recover damages
against the official in federal court despite the absence of
any statute conferring such a right.” Hartman v. Moore, 547
U.S. 250, 254 n.2 (2006) (quoting Carlson v. Green, 446 U.S.
14, 18 (1980)). Notwithstanding its creation of the remedy,
“the Supreme Court has [repeatedly] warned that the Bivens
remedy is an extraordinary thing that should rarely if ever be
applied in ‘new contexts.’ ” Arar v. Ashcroft, 585 F.3d 559,
571 (2d Cir. 2009) (quoting Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 69 (2001)). Consequently, district courts must engage
in a Bivens analysis before permitting any Bivens claim to
proceed to trial, Ziglar v. Abbasi, 582 U.S. 120, 139-40
(2017), and reject a Bivens claim when: (1) the claim presents
a new Bivens context, and (2) special factors counseling
hesitation are present, Hernandez v. Mesa, 589 U.S. 93, 102
(2020).
*3 A case “presents a new Bivens context” when it is
“meaningfully different from the three cases in which the
[Supreme] Court has implied a damages action.” Egbert v.
Boule, 596 U.S. 482, 492 (2022) (internal quotation marks
and bracket omitted) (quoting Ziglar, 582 U.S. at 139-40).
“Bivens, Davis, and Carlson—represent the only instances
in which the Court has approved of an implied damages
remedy under the Constitution itself.” Ziglar, 582 U.S. at
131. The plaintiff in Bivens asserted claims for unreasonable
search and seizure under the Fourth Amendment. 403 U.S.
at 389. The plaintiff in Davis v. Passman asserted a claim
of employment discrimination under the Due Process Clause
of the Fifth Amendment. 442 U.S. 228, 230-31 (1979). And
Carlson asserted Eighth Amendment claims for inadequate
medical treatment of a convicted prisoner. 446 U.S. at 16 n.1.
A “special factor ... cause[s] a court to hesitate before” finding
that “the Judiciary is well suited, absent congressional action
or instruction, to consider and weigh the costs and benefits
of allowing a damages action to proceed.” Ziglar, 582 U.S.
at 136. If there are any such factors, the Court must “reject
the request” to extend a Bivens remedy. Hernandez, 589 U.S.
at 102.
Applying the two-part inquiry, it is apparent that the Court
cannot extend the Bivens remedy to Plaintiff's claims.
Plaintiff's Fourth Amendment claim arose during a traffic stop
and a “search that was unwarranted.” (Dkt. 1 at 5; Dkt. 4 at 5).
The context of Plaintiff's claim and the category of putative
defendants clearly are “different in a meaningful way” from
the context of, and the category of defendants in, the three
Bivens actions the Supreme Court previously has recognized.
Though Bivens also recognized a cause of action under the
Fourth Amendment, that is not dispositive; “[a] claim may
arise in a new context even if it is based on the same
constitutional provision as a claim in a case in which a
damages remedy was previously recognized.” Hernandez,
589 U.S. at 103. Indeed, “[t]he Supreme Court has twice
declined to extend Bivens to Fourth Amendment claims filed
against border agents.” Morales v. United States, No. 18-
cv-4247(CBA)(RER), 2023 WL 2129580, at *9 (E.D.N.Y.
Feb. 17, 2023) (citing Egbert, 596 U.S. at 494-98 (declining
to create a Fourth Amendment excessive force claim or a
First Amendment retaliation claim against a border patrol
agent, and noting that a court was “plainly” not “competent
to authorize a damages action ... against Border Patrol agents
generally”)); Hernandez, 598 U.S. at 103-10 (declining to
create a damages remedy for a Fourth Amendment excessive
force claim against a border patrol agent).
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German-Andujar v. U.S. Customs and Border Protection, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
In light of Hernandez and Boule, allowing a Bivens claim
to proceed against the individual border patrol agent or
agents who allegedly were involved in Plaintiff's Fourth
Amendment violation would run counter to the Supreme
Court's precedents. See Lovell v. Parker, 618 F. Supp. 3d 127,
139 (E.D.N.Y. 2022) (finding that “[u]nder binding Supreme
Court precedent” in Boule and Hernandez, the plaintiff
“may not maintain a cause of action against the individual
Defendants [individual Customs and Border Patrol] officers
on duty at a border checkpoint within an international airport”
pursuant to Bivens).
The same conclusion is warranted concerning Plaintiff's Fifth
and Sixth Amendment claims under Bivens. Neither the
Supreme Court nor the Second Circuit has recognized a
Fifth Amendment Bivens claim outside of the employment
context. See Davis, 442 U.S. at 248-49. Nor has the Supreme
Court recognized a Sixth Amendment right to counsel claim
under Bivens. See Egbert, 596 U.S. at 498 (noting that,
under Bivens, “a new context arises when there is a new
constitutional right at issue”) (internal citations and quotation
marks omitted); see also Morales v. United States, 18-cv-4247
(CBA) (RER), 2023 WL 2129580, at *10 (E.D.N.Y. Feb 17,
2023) (determining that a Sixth Amendment right to counsel
claim presented a new context under Bivens).
*4 Plaintiff also asserts violations of the Eighth Amendment
because he was denied medical care. He contends that the
border patrol agents were deliberately indifferent to his
medical needs. (Dkt. 4 at 5). Because Plaintiff was not a
prisoner at the time of the events, analysis under the Eighth
Amendment is inappropriate, and Plaintiff's claims should
be analyzed through the Due Process Clause of the Fifth
Amendment. See Cuoco, 222 F.3d at 106 (noting that a claim
of deliberate indifference to a serious medical need by a
federal pre-trial detainee arises under the Due Process Clause
of the Fifth Amendment instead of the Eighth Amendment).
The Supreme Court considered a Fifth Amendment due
process claim for “deliberate indifference to prisoner abuse”
in Ziglar but determined that the plaintiffs sought to expand
Bivens to a new context, noting that “even a modest extension
is still an extension.” Ziglar, 582 U.S. at 146-47. Accordingly,
Plaintiff's deliberate indifference claims sound in a new
Bivens context and must be dismissed.
Plaintiff further asserts Fourteenth Amendment equal
protection and due process claims. (Dkt. 4 at 4). Because
he asserts his claims against federal employees, the Court
construes them as arising under the Fifth Amendment.
See San Francisco Arts & Athletics, Inc. v. U.S. Olympic
Comm., 483 U.S. 522, 542 n. 21 (1987) (whereas “[t]he
Fourteenth Amendment applies to actions by a State”,
the Fifth Amendment applies “to the Federal Government
and contains an equal protection component”); Duncan v.
I.N.S., No. 02 CIV. 300 (MBM), 2003 WL 255325, at *4
(S.D.N.Y. Feb. 5, 2003) (“Although the Fifth Amendment,
unlike the Fourteenth, contains no language guaranteeing
equal protection of the laws, ‘there is a well-established
equal protection component to the Fifth Amendment Due
Process Clause applicable to the federal government.’
” (quoting Skelly v. INS, 168 F.3d 88, 91 (2d Cir. 1999))).
But Plaintiff's claims are “meaningfully different from the
Fifth Amendment-based gender employment discrimination
claims in Davis.” Grossman v. Von Blackensee, No. 19-
CV-9191 (NSR), 2025 WL 563931, at *1 (S.D.N.Y. Feb. 19,
2025).
Moreover, the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671-80, provides “just the sort of alternative
remedial scheme that counsels against judicial expansion of
Bivens.” 4 Edwards v. Gizzi, 107 F.4th 81 (2d Cir. 2024)
(summary order) (Park, J., concurring); see also Dean v.
Robinson, 656 F. Supp. 3d 400, 412 (W.D.N.Y. 2023) (“the
PLRA, the FTCA, and the difficulties of prison administration
lead inexorably to the conclusion that it is Congress, and
not this Court, that should determine whether a damages
remedy is available under the circumstances presented here”);
Swinton v. Serdula, No. 15-CV-47, 2022 WL 3701196, at
*7 (W.D.N.Y. Aug. 26, 2022) (declining to extend Bivens
to inadequate medical care claim in light of “the alternative
means of relief, including a suit under the FTCA”); Turkmen v.
Ashcroft, No. 02-CV-2307 (DLI) (SMG), 2018 WL 4026734,
at *10 (E.D.N.Y. Aug. 13, 2018) (collecting cases that,
since Ziglar, “have declined to permit Bivens claims to
proceed because the FTCA provides an adequate alternative
remedy”), report and recommendation adopted, No. 02-
CV-02307 (DLI) (SMG), 2021 WL 4099495 (E.D.N.Y. Sept.
9, 2021).
*5 In sum, there can be no Bivens remedy in the
circumstances presented in this case. The context here
is different from those limited circumstances where the
Supreme Court has previously implied a cause of action
under the Constitution. And, as “in most every case,” there
is at least one rational reason to defer to Congress as to
the availability of a damages remedy. Egbert, 596 U.S. at
491-92 (“ ‘Even a single sound reason to defer to Congress’ is
enough to require a court to refrain from creating ... a [Bivens]
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German-Andujar v. U.S. Customs and Border Protection, Slip Copy (2025)
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remedy.” (quoting Nestle USA, Inc. v. Doe, 593 U.S. 628, 635
(2021))). Accordingly, Plaintiff's claims are not cognizable
under Bivens, and this case must be dismissed for failure to
state a claim. The dismissal is without leave to amend because
these deficiencies in Plaintiff's claims cannot be cured with
better pleading.
IV. MOTION TO APPOINT COUNSEL
Although there is no constitutional right to appointed counsel
in civil cases, under 28 U.S.C. § 1915(e), the Court in its
discretion may appoint counsel to assist indigent litigants.
See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real
Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988); Hendricks v.
Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (identifying the
factors to be considered in appointing counsel) (citing Hodge
v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). Because
Plaintiff's amended complaint is dismissed, his motion to
appoint counsel is denied as moot.
ORDER
IT IS HEREBY ORDERED that Plaintiff's motion to proceed
in forma pauperis (Dkt. 2) is granted; and it is further
ORDERED that Plaintiff's motion to appoint counsel (Dkt. 6)
is denied as moot; and it is further
ORDERED that Plaintiff's amended complaint (Dkt. 4) is
dismissed without leave to amend under 28 U.S.C. § 1915(e)
(2)(B) for failure to state a claim. The Clerk of Court is
directed to close this case; and it is further
ORDERED that this Court hereby certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from this Decision and
Order would not be taken in good faith, and leave to appeal
to the United States Court of Appeals for the Second Circuit
as a poor person is denied. Coppedge v. United States, 369
U.S. 438, 444-45 (1962). Further requests to proceed on
appeal as a poor person should be directed, on motion, to the
Second Circuit, in accordance with Federal Rule of Appellate
Procedure 24.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 1101514
Footnotes
1 “The Court screens Plaintiff's Amended Complaint instead of his original Complaint because ‘[i]t is well
established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.’
” Sathue v. Mir Vest Inc., No. 18-CV-548-FPG, 2018 WL 10741681, at *1 n.1 (W.D.N.Y. Nov. 13, 2018)
(quoting Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977)).
2 Although the amended complaint (Dkt. 4) is vague as to what was being searched, the complaint alleges that
these events occurred during a traffic stop (Dkt. 1 at 5).
3 Bivens claims may be brought against federal officers, not federal agencies. See F.D.I.C. v. Meyer, 510 U.S.
471, 486 (1994) (holding that the respondent “had no Bivens cause of action for damages against FSLIC,”
a federal agency); see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 77 (2001) (Stevens, J., dissenting).
Therefore, Plaintiff's claims against U.S. Customs and Border Protection are dismissed for lack of subject
matter jurisdiction. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“[T]o
the extent that Robinson's claims constituted a Bivens action against AAFES[, a federal agency,] or the
individual federal defendants in their official capacities, they were properly dismissed for want of subject
matter jurisdiction.” (citing Meyer, 510 U.S. at 485-86)).
4 While Plaintiff could potentially attempt to pursue a claim under the FTCA, the Court has not construed the
complaint as making such a claim because Plaintiff does not name the United States as defendant as required
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German-Andujar v. U.S. Customs and Border Protection, Slip Copy (2025)
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by 28 U.S.C. § 1346. There is also nothing in the record before the Court to suggest that Plaintiff exhausted his
administrative remedies by presenting his claim to the appropriate federal agency as required by 28 U.S.C. §
2675(a). This requirement “is jurisdictional and cannot be waived.” Celestine v. Mount Vernon Neighborhood
Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005). In other words, Plaintiff would need to pursue any potential FTCA
claim before the appropriate federal agency before it could be asserted in a federal district court.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 104 of 340

Holmes v. Allstate Corp., Not Reported in F.Supp.2d (2012)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Kolbe & Kolbe Millwork, Co., Inc. v. Manson Ins.
Agency, Inc., W.D.Wis., October 25, 2013
2012 WL 627238
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Tyrone HOLMES and Samuel's Temple
Church of God in Christ, Inc., Plaintiffs,
v.
The ALLSTATE CORPORATION, Bryan M. Harris,
a.k.a. Bryan Michael Harris, Bluebox Entertainment,
Inc., Harris Financial Inc., Harris Financial Insurance
Inc., Associate Management LLC, B.M. Harris Inc.,
First One Distributors, Inc., I Am Global Ent. LLC,
Harris Financial Insurance Services, Defendants.
No. 11 Civ. 1543(LTS)(DF).
|
Jan. 27, 2012.
REPORT AND RECOMMENDATION
DEBRA FREEMAN, United States Magistrate Judge.
*1 TO THE HONORABLE LAURA T. SWAIN,
U.S.D.J.:
In this diversity action, plaintiffs Tyrone Holmes (“Holmes”)
and the church of which he has claimed to be the
Executive Pastor, Samuel's Temple Church of God in Christ,
Inc. (the “Church” or “Samuel's Temple”) (collectively,
“Plaintiffs”) have asserted a variety of state-law claims
against defendants the Allstate Corporation (“Allstate”),
Bryan M. Harris (“Harris”), and a number of corporate
entities of which Harris is purportedly the principal (the
“Harris Entities” 1 ) (collectively, “Defendants”), essentially
alleging that Defendants mismanaged or stole more than half
a million dollars that Plaintiffs had entrusted to Defendants
for investment or other purposes.
Currently pending before the Court for a report and
recommendation are five separate motions:
(1) a motion by Allstate to dismiss Plaintiffs' Amended
Complaint, as against Allstate (Dkt.18);
(2) a cross-motion by Plaintiffs for leave to file a Second
Amended Complaint (Dkt.33);
(3) a motion by Allstate against Plaintiffs for Rule
11 sanctions for bringing a frivolous lawsuit against
Allstate (Dkt.27);
(4) a motion by Plaintiffs against Allstate for Rule 11
sanctions, for making purportedly false and unsupported
statements to the Court in motion papers (Dkt.51); and
(5) a motion by Harris and the Harris Entities (collectively,
the “Harris Defendants”) to dismiss Plaintiffs' Amended
Complaint as against them (see Dkt. 55). 2
For the reasons set forth below, I respectfully recommend
that Allstate's motion to dismiss (Dkt.18) be granted and
that Plaintiffs' claims against Allstate be dismissed with
prejudice. I further recommend that Plaintiffs' cross-motion
to amend (Dkt.33) be denied, as nothing in Plaintiffs'
proposed amended pleading would cure the defects in the
Amended Complaint. As for the pending sanctions motions, I
recommend that Allstate's motion against Plaintiffs (Dkt.27)
be granted and that Plaintiffs' motion against Allstate (Dkt
51) be denied, as Plaintiffs' claims against Allstate are
patently frivolous and Plaintiffs' sanctions motion against
Allstate is procedurally defective and meritless. On these
motions, I recommend that Plaintiffs' counsel be ordered
to pay to Allstate certain costs it has incurred, as set forth
below. Finally, I recommend that the motion by the Harris
Defendants to dismiss Plaintiffs' claims against them (Dkt.55)
be granted, without prejudice to Plaintiffs' filing a Second
Amended Complaint that satisfies the requirements of Rules
8(a) and 9(b) of the Federal Rules of Civil Procedure, with
respect to Plaintiffs' claims against these defendants.
BACKGROUND
A. The Amended Complaint
Initially proceeding pro se, Holmes filed the initial Complaint
in this matter on his own behalf. (See Complaint, dated Mar.
7, 2011 (Dkt.1).) Holmes then retained as counsel Eric Suffin,
Esq. (“Suffin”), of the Law Firm of Eric Andrew Suffin,
and, on June 1, 2011, Suffin filed an Amended Complaint,
on behalf of both Holmes and the Church. (See Amended
Complaint, dated May 17, 2011 (“Am.Compl”) (Dkt.17).)
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1. Factual Allegations
*2 At its core, the Amended Complaint alleges that Holmes
and the Church entrusted Harris with more than half a million
dollars, that Harris promised to make certain investments and
purchases with the funds and also promised certain benefits
to Holmes and his family, and that Harris broke these various
promises. The Amended Complaint alleges the following
facts, which are accepted as true for purposes of the motions
to dismiss:
Plaintiff Samuel's Temple is a non-profit religious
organization that formerly owned a church in East Harlem,
New York. (Id. at ¶¶ 6, 7.) According to the Amended
Complaint, Holmes is the Executive Pastor and Music
Director of Samuel's Temple. (Id. at ¶ 3.) Defendant Harris
is an Allstate agent and franchisee (id. at ¶ 10), who
also operates defendant HFIS (id. at ¶ 13). The Amended
Complaint does not describe the nature of HFIS or the other
Harris Entities, other than to allege that they are all “alter
egos” of one another. (Id. at ¶¶ 15–22.)
In 2006, Plaintiffs received $1 million from a developer (id.
at ¶ 27), and Defendants suggested that Plaintiffs' capital
be invested with them (id. at ¶ 32). 3 Defendants promised
Plaintiffs at least a 15–20% profit within two years of
their investment. (Id. at ¶ 33.) Harris was to serve as
Plaintiffs' investment advisor and business manager for their
capital investments, and Defendants proposed investments in
real estate, insurance, an entertainment company (defendant
Bluebox), and various securities and derivatives. (Id. at ¶¶
34, 37, 49.) In connection with their proposal, Defendants
also allegedly promised many personal benefits for Holmes,
including housing for him and his family in Georgia,
insurance for him and his family, and appointments to several
executive positions at Bluebox. (Id. at ¶¶ 38, 47, 49.)
On the basis of these representations, Plaintiffs allegedly
invested approximately $513,000. 4 (Id. at ¶ 53.) More
specifically, Plaintiffs made a series of wire transfers
to Bluebox, from August 2006 through February 2007,
in amounts that totaled approximately $500,000. 5 (Id.
at ¶¶ 56–58, 60.) Plaintiffs also invested approximately
$15,000 in cash with Defendants, and made a $28,000
down payment for a piece of real estate. (Id. at ¶¶ 55,
61.) Defendants sent Plaintiffs promissory notes regarding
amounts of $320,000 and $50,000, promising repayment
of these principal amounts, together with interest, at a rate
of 8.5% per annum on the unpaid balance, and promising
balloon payments in the form of cashier's checks. (Id. at ¶ 59.)
Despite demand, Plaintiffs allege that they have not received
any money back from their investments with Defendants, nor
have they received an accounting regarding their investments.
(Id. at ¶¶ 69–72.) As described more specifically below,
Plaintiffs also allege that Defendants did not follow through
on their various alleged promises.
a. Blue Box
*3 Holmes alleges that, as part of the alleged investment
deal, he was promised stock and a number of positions at
the entertainment company Bluebox. (Id. at ¶ 47.) Holmes
was allegedly to become the Chief Executive Officer of
Bluebox, as well as its Director of Music Production and
Video Production. (Id.) Holmes was also to be appointed
as Musician, Webmaster, Digital Music Engineer, and
Songwriter for Bluebox. (Id.) Holmes and Samuel's Temple,
together, were to become 51% stockholders of Bluebox. (Id.)
Harris agreed to reduce his own stock holdings in Bluebox
to only 49%, although he promised to serve as Bluebox's
Chief Financial Officer and Business Manager. (Id. at ¶ 48.)
Finally, Defendants promised to file “any required annual
tax documents relating to Bluebox, and plaintiff Holmes's
personal income taxes as a salaried corporate officer and
employee of Bluebox .” (Id. at ¶ 44.)
According to the Amended Complaint, Defendants have
admitted to omitting Plaintiffs' names from documents
regarding control of Bluebox. (Id. at ¶ 76.)
b. Real Estate
i. 921 Moreland Avenue
According to Plaintiffs, part of their money was supposed
to be used to buy a house that, at the time, belonged to
Harris, and Holmes and his family were to live in it. (Id. at
¶¶ 47, 55 .) Under the agreement, Samuel's Temple would
become the titleholder of the property, which was located
at 921 Moreland Avenue, in Atlanta, Georgia. (Id. at ¶¶
47, 55.) Defendants allegedly represented that they would
secure a purchase mortgage for Plaintiffs and make mortgage
payments with Plaintiffs' capital investment. (Id. at ¶ 77.)
Plaintiffs allege that on or around March 16, 2006, Plaintiffs
gave Defendants $28,000 as a down payment on this house.
(Id. at ¶ 55.)
On or around December 28, 2007, Harris sent Plaintiffs an
email indicating that the Moreland Avenue property, which
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Holmes and his family were by then occupying, was in danger
of being foreclosed. (Id. at ¶ 79.)
Then, at some point in 2008, while Holmes was in New
York, Harris allegedly entered the Moreland Avenue property,
which Holmes was still using as a residence, and removed
personal property belonging to Holmes, including a rifle, hard
drives, two speakers, video footage, sound tools, documents,
video masters, and music masters. (Id. at ¶ 80.) A person
believed to be an agent of the City of Atlanta Police
Department allegedly stood outside of the Moreland Avenue
property while Harris entered the home and left with Holmes'
personal property. (Id. at ¶ 80.)
At a later point in 2008, the house at 921 Moreland
Avenue was foreclosed and Plaintiffs were evicted. (Id.
at ¶ 81.) Plaintiffs allege that, despite the representations
made by Defendants, Defendants never obtained a purchase
mortgage for Plaintiffs for the Moreland Avenue property, and
Defendants failed to use Plaintiffs' capital investment to make
mortgage payments on that property. (Id. at ¶ 77.)
ii. Other Allegations Regarding Real Estate
*4 HFIS and Harris, as an agent of Allstate, had an office at
1133 Forest Parkway, in Forest Park, Georgia. (Id. at ¶ 14.) In
April of 2007, Defendants told Plaintiffs that Defendants had
sold the mall that contained this office. (Id. at ¶ 67.) The Court
is unclear as to whether Plaintiffs are claiming any interest in
this mall.
Plaintiffs also allege that “[i]n or about 2008, defendants
represented to plaintiffs that defendants bought a parcel and
properties for the benefit of plaintiffs and lost the parcel and
properties.” (Id. at ¶ 68.) It is not clear to the Court whether
this allegation refers to the property at 921 Moreland Avenue,
discussed above, or to another piece of property.
c. Insurance
Plaintiffs allege that Defendants said that they would purchase
and maintain life insurance for Holmes and his family. (Id.
at ¶¶ 49, 39.) Although Defendants later represented that
they had purchased a $5,000 life insurance policy, this policy
allegedly lapsed in November of 2010. (Id. at ¶¶ 62, 63, 82.)
According to Plaintiffs, Defendants also represented that they
had purchased “business insurance policies” for the benefit of
Plaintiffs (id. at ¶ 62), but the Amended Complaint does not
indicate whether Defendants actually made such purchases,
or, if so, whether these insurance policies also lapsed.
d. Loans to an Elected Representative
Plaintiffs allege that Defendants loaned $20,000 to Ron
Sailor Jr. (identified in the Amended Complaint as a Georgia
Congressman) 6 from Plaintiffs' capital investment. (Id. at
¶ 64.) Plaintiffs do not indicate whether this loan was
authorized by Plaintiffs or whether the loan was repaid.
e. Documents
At some point, Defendants allegedly sent Plaintiffs a
large collection of Allstate documents containing personal
information of thousands of Allstate policyholders and other
policyholders. (Id. at ¶ 29.) Plaintiffs assert that they stored
these documents for nine years, without compensation,
incurring approximately $10,080 in storage costs. (Id. at ¶
30.) 7
2. Legal Claims and Alleged Damages
Plaintiffs assert nine claims against Defendants. One of
these claims—for prima facie tort—is asserted solely against
Harris. The eight remaining claims are brought against all
Defendants. These claims include: (1) conversion; (2) fraud;
(3) violation of New York Debtor and Creditor Law § 276;
(4) negligent misrepresentation; (5) promissory estoppel; (6)
unjust enrichment; (7) breach of contract; and (8) negligent
infliction of emotional distress.
Plaintiffs demand $10 million in damages for the death
of a Samuel's Temple member (whose death was allegedly
“[d]irectly related to the conduct of defendants”), loss of
business opportunities, loss of the ability to operate a
school, harm to reputation, financial distress, harm to familial
relations, and loss of employment at Bluebox. (Am. Compl.
at ¶¶ 15, 86, 87, 88, 89, 94.)
B. Motions before the Court
1. Allstate's Motions To Dismiss and for Sanctions
*5 On June 28, 2011, Allstate moved to dismiss the
Amended Complaint under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. (See Notice of Motion To Dismiss
Plaintiffs' Amended Complaint as Against Defendant the
Allstate Corporation (“Allstate Mtn. To Dismiss”), dated June
28, 2011 (Dkt.18).) Allstate seeks dismissal on the grounds
that the Amended Complaint consists of improper “group”
allegations against “defendants,” that it alleges no direct
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action by Allstate and no conduct by Allstate that could make
it liable for the actions of any of the other defendants, and
that each individual claim fails for additional and independent
reasons. (See generally Allstate Mtn. To Dismiss.)
Allstate has also filed a motion for sanctions against Plaintiffs,
as well as their counsel, under Rule 11 of the Federal
Rules of Civil Procedure and based on the Court's inherent
authority. (See Notice of Motion For Sanctions Under Rule 11
(“Allstate's Sanctions Mtn.”), dated July 29, 2011 (Dkt.27).)
In its sanctions motion, Allstate contends that, as against
Allstate, the Amended Complaint is frivolous and without any
factual or legal basis. (Id.)
2. Plaintiffs' Motions for Leave To Amend and for
Sanctions
On August 5, 2011, Plaintiffs opposed Allstate's motion to
dismiss and filed a cross-motion for leave to file a Second
Amended Complaint. (Notice of Cross–Motion, dated Aug.
5, 2011 (Dkt.33).) Plaintiffs argue that, because Harris was an
agent and franchisee of Allstate, Allstate is liable for the acts
alleged in the Amended Complaint. (Plaintiff's Memorandum
of Law in Opposition to Defendant the Allstate Corporation's
Motion To Dismiss Plaintiff's Amended Complaint and in
Support of Plaintiff s Cross–Motion for Leave To File a
Second Amended Complaint (“Pl. Opp. Mem. to Allstate
Mtn.”), dated Aug. 5 (Dkt.34 8 ), at 4.) Primarily on this
basis, Plaintiffs contend that each of their eight claims against
Allstate is well-founded. (Id. at 6–11.) Nonetheless, Plaintiffs
also request leave of Court to file the proposed Second
Amended Complaint that they submit with their cross-motion.
(Id. at 11.)
On September 30, 2011, Plaintiffs filed a motion for sanctions
against Allstate. (Notice of Motion, dated Sept. 30, 2011
(Dkt.51) .) Plaintiffs allege that certain statements contained
in Allstate's memoranda in support of its two motions, and
in a Declaration supporting Allstate's motion to dismiss and
opposing Plaintiffs' cross-motion for leave to amend, are
without evidentiary support. (Plaintiffs' Memorandum of Law
in Support of Plaintiffs' Motion for Rule 11 Sanctions, dated
Sept. 30, 2011 (“Pl. Sanctions Mem.”) (Dkt.53), at 2.)
3. Motions of the Harris Defendants
On October 11, 2011, the Harris Defendants filed their
own motion to dismiss the Amended Complaint. (See
Memorandum of Law in Support of the Motion of
Defendants, Bryan M. Harris a/k/a Bryan Michael Harris,
Bluebox Entertainment, Inc., Harris Financial Insurance
Services, Inc., Harris Financial, Inc., Harris Financial
Insurance, In. Associate Management LLC, B.M. Harris Inc.,
First One Distributors, Inc., I Am Global Ent. LLC a/k/a
Attracknaphobia, LLC To Dismiss The Amended Complaint
(“Harris Mtn. To Dismiss”), dated Oct. 9, 2011 (Dkt.55).) The
Harris Defendants contend that Plaintiffs have no standing
to bring their claims; that, as a general matter, the Amended
Complaint is inadequately pleaded; and that the nine claims
also fail for independent reasons. (See id.)
*6 In opposition to the Harris Defendants' motion, Plaintiffs
argue that each of their claims against these defendants is
sufficient as pleaded, and Plaintiffs also submit additional
documents related to the issue of standing and ask for leave
to file an “Alternative Second Amended Complaint,” which
they submit with their opposition papers. (See Plaintiffs'
Memorandum of Law in Opposition to Harris Defendants'
Motion To Dismiss (“Pl. Opp. Mem. to Harris Mtn.”), dated
Nov. 10, 2011 (Dkt.64); see also Affidavit of Tyrone Holmes,
dated Nov. 7, 2011 (Dkt.65); see also Declaration of Eric
Andrew Suffin in Opposition to Harris Defendants' Motion
To Dismiss, dated Nov. 10, 2011 (“11/10/11 Suffin Decl.”)
(Dkt.66).)
DISCUSSION
I. ALLSTATE'S MOTION TO DISMISS AND
PLAINTIFFS' CROSS–MOTION TO AMEND
A. Applicable Legal Standards
1. Rule 12(b)(6)
A case is subject to dismissal under Rule 12(b)(6) where the
complaint is not legally sufficient to state a claim upon which
relief can be granted. See Kopec v. Coughlin, 922 F.2d 152,
155 (2d Cir.1991). In deciding a Rule 12(b)(6) motion, the
Court “accept[s] as true all factual statements alleged in the
complaint and draw[s] all reasonable inferences in favor of
the non-moving party.” McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 191 (2d Cir.2007) (citation omitted); accord
Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329
(2d Cir.1997). A court should grant dismissal where, after
considering the plaintiff's allegations in this generous light,
“it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.”
Walker v. City of New York, 974 F.2d 293, 298 (2d Cir.1992),
cert. denied,507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762
(1993). At the same time, “conclusory allegations or legal
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conclusions masquerading as factual conclusions will not
suffice to defeat a motion to dismiss.” Achtman v. Kirby,
McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir.2006)
(citation omitted). Rather, in order to withstand a motion
to dismiss, a complaint must plead “enough facts to state a
claim for 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); see also Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“[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. Rule 15(a)
Rule 15(a) of the Federal Rules of Civil Procedure governs the
amendment of complaints and provides that the court “should
freely give leave when justice so requires.” Fed.R.Civ.P.
15(a). A motion to amend should be denied, however, “if
there is an ‘apparent or declared reason—such as undue
delay, bad faith or dilatory motive ... repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of the allowance
of an amendment, [or] futility of amendment.’ “ Dluhos v.
Floating and Abandoned Vessel Known as “New York,” 162
F.3d 63, 69 (2d Cir.1998) (quoting Foman v. Davis, 371 U.S.
178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).
*7 An amendment is considered futile when the proposed
new claim would not withstand a motion to dismiss, either
for failure to state a cause of action, or on another ground.
See Milanese v. Rust-oleum Corp., 244 F.3d 104, 110 (2d
Cir.2001). Thus, if a proposed amendment would be subject
to “immediate dismissal” on some ground, the Court will
not permit the amendment. See Jones v. NY. State Div. of
Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir.1999).
If, on the other hand, the party seeking to amend “has at
least colorable grounds for relief, justice ... require[s]” that
its motion be granted. Ryder Energy Distrib. Corp. v. Merrill
Lynch Commodities Inc., 748 F.2d 774, 783 (2d Cir.1984)
(citation omitted).
B. Adequacy of Plaintiffs' Allegations Against Allstate
Allstate makes a number of arguments for dismissing the
claims against it. As an initial matter, Allstate argues that
in order to state a claim against it, Plaintiffs would have to
proceed under a theory that Harris had apparent authority
to act on Allstate's behalf, but that Plaintiffs have not
pleaded any facts sufficient to support the conclusion that
Harris had such authority. Allstate also argues that the
Amended Complaint fails to satisfy Rules 8(a) and 9(b) of the
Federal Rules of Civil Procedure. Finally, Allstate advances
arguments for dismissing each of the eight individual claims
against it on independent grounds. As this Court agrees that
Plaintiffs have not pleaded facts sufficient to support any
claim based on apparent authority, on which all of Plaintiffs'
claims necessarily rest, I recommend that Allstate's motion to
dismiss be granted on that ground, without regard to Allstate's
other arguments.
1. Lack of Allegations of Apparent Authority
The Amended Complaint contains few allegations that relate,
in particular, to Allstate. Instead, as noted above (see n.
3, supra ), Plaintiffs claim that “defendants” made and
broke a range of promises. At best, Plaintiffs' use of the
term “defendants” throughout the Amended Complaint is
vague. At other times, Plaintiffs' method of group pleading is
incoherent or illogical. 9 Given that Plaintiffs do not allege
that Allstate itself engaged in any activity that would give
rise to independent liability, Allstate argues that Plaintiff's
theory of liability must be premised on Harris's actions and
the doctrine of apparent authority. Under this doctrine, as
explained by the New York Court of Appeals, 10 liability
against a principal may arise if the principal's affirmative
conduct causes a third party reasonably to believe that an
agent has authority to act on behalf of the principal:
Essential to the creation of apparent authority are words
or conduct of the principal, communicated to a third
party, that give rise to the appearance and belief that the
agent possesses authority to enter into a transaction. The
agent cannot by his own acts imbue himself with apparent
authority. Rather, the existence of ‘apparent authority’
depends upon a factual showing that the third party relied
upon the misrepresentation of the agent because of some
misleading conduct on the part of the principal-not the
agent. Moreover, a third party with whom the agent deals
may rely on an appearance of authority only to the extent
that such reliance is reasonable.
*8 Hallock v. State of New York, 64 N.Y.2d 224, 231, 485
N.Y.S.2d 510, 474 N.E.2d 1178 (1984) (internal quotations
and citations omitted); see also Ford v. Unity Hospital, 32
N.Y.2d 464, 472–73, 346 N.Y.S.2d 238, 299 N.E.2d 659
(1973) (“The apparent authority for which the principal
may be held liable must be traceable to him; it cannot
be established by the unauthorized acts, representations or
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conduct of the agent”). Here, Allstate argues that Plaintiffs
have not sufficiently alleged any facts that could support a
finding that Harris was authorized by Allstate to make the
promises or engage in the transactions that form the basis
of Plaintiffs' claims.
Plaintiffs do not deny that they are proceeding against Allstate
on a theory of apparent authority (see Pl. Opp. Mem. to
Allstate Mtn. at 4), but they maintain that their allegations are
sufficient to implicate Allstate under that theory. Specifically,
the Amended Complaint contains the following allegations
regarding the nature of Allstate's business, its relationship
with Harris, and the role that Plaintiffs were supposedly led
to believe that Allstate would take with respect to Plaintiffs'
money and investments:
• Allstate “is purportedly an insurance, retirement,
investment, and banking company, purporting to offer
Asset Protection, Wealth Transfer, Family Protection
Insurance, Financial Products, Asset Management and
Accumulation, and Asset Management Short-term
Financial Objectives.” (Am. Compl. at ¶ 8.)
• Harris “was and is an Agent and Franchisee with, of and
for defendant Allstate.” (Id. at ¶ 10, 346 N.Y.S.2d 238,
299 N.E.2d 659.)
• “[A]s an Agent of defendant Allstate[,] defendant Harris
offered Allstate financial services, while simultaneously
operating under the corporate name of defendant Harris
Financial Insurance Services, Inc.” (Id. at ¶ 13, 346
N.Y.S.2d 238, 299 N.E.2d 659.)
• “At the time the plaintiffs received one million dollars in
or about 2006 plaintiff Holmes believed that defendant
Harris operated the most successful Allstate operation/
business in the southeast region of the United States
of America for the previous ten years, pursuant to
representations to that effect by defendants.” (Id. at ¶ 31,
346 N.Y.S.2d 238, 299 N.E.2d 659.)
• “Defendants represented to plaintiffs that capital invested
by plaintiffs with defendants would be invested with
defendant Allstate in the name of plaintiff Church.” (Id.
at ¶ 36, 346 N.Y.S.2d 238, 299 N.E.2d 659.)
• “Defendants Harris, HFIS, Bluebox, HF, HFI, BMH,
First, Associate, and IAGE used the Allstate name and
logo to convince plaintiffs to invest with defendants,
assuring plaintiffs that the investments were to be with
Allstate.”(Id. at ¶ 46, 346 N.Y.S.2d 238, 299 N.E.2d
659.)
• “Defendants represented that plaintiffs' capital investment
would be maintained and supervised by Allstate.” (Id. at
¶ 52, 346 N.Y.S.2d 238, 299 N.E.2d 659.)
• “On the basis of the representations made to plaintiffs
by defendants, and relying upon defendants' advice
and representation that Allstate was exercising certain
controls and safeguards upon defendant Harris, plaintiffs
invested approximately five hundred and thirteen
thousand dollars with defendants.” (Id. at ¶ 53, 346
N.Y.S.2d 238, 299 N.E.2d 659.)
*9 • Harris “openly conducted plaintiffs' business
and discussed plaintiffs' financial transactions during
business hours while in Allstate offices, acting as an
Agent of Allstate.” (Id. at ¶ 54, 346 N.Y.S.2d 238, 299
N.E.2d 659.)
• “Defendants represented to plaintiffs that defendant
Allstate was the entity that sold certain securities
and derivatives, life insurance policies and business
insurance policies to plaintiffs.” (Id. at ¶ 65, 346
N.Y.S.2d 238, 299 N.E.2d 659.)
Plaintiffs also generally allege that each defendant is an “alter
ego” of the other defendants. (Id. at ¶¶ 15–22, 346 N.Y.S.2d
238, 299 N.E.2d 659.)
Yet, while these allegations may suggest that Harris,
holding himself out as an Allstate agent, made certain
representations to Plaintiffs regarding Allstate's involvement
in the planned investment transactions, missing from the
Amended Complaint is any allegation that Allstate itself
engaged in any affirmative conduct that could have caused
Plaintiffs reasonably to believe that Harris had the authority
to bind Allstate to promises regarding how Plaintiffs' money
would be spent or invested. See Imburgio v. Toby, 82
A.D.3d 653, 920 N.Y.S.2d 43, 43 (1st Dep't 2011) (granting
motion to dismiss where plaintiffs failed to allege facts that
would impute liability to defendant, holding that, “[w]hile
plaintiffs asserted that defendant's employee was vested with
apparent authority based upon the employee's representations
concerning the transactions at issue, such authority may arise
only from the conduct of the principal, not the agent”).
Despite its repeated references to actions undertaken by
“defendants,” the Amended Complaint implies that Harris
made the promises and engaged or failed to engage in the
conduct that underlies this action. (See Am. Compl. at ¶ 54
(“Defendant Harris openly conducted plaintiffs' business and
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discussed plaintiffs' financial transactions during business
hours while in Allstate offices, acting as an Agent of
Allstate.”).) Indeed, even Plaintiffs' allegations that refer
generally to the conduct of “defendants” suggest, in context,
that Harris was the actor. For example, when Plaintiffs allege
that they made wire transfers to Bluebox, a Harris company,
“relying upon defendants' advice and representation that
Allstate was exercising certain controls and safeguards” (id.
at ¶¶ 56–58), Plaintiffs identify no action or words by Allstate
regarding its involvement with Bluebox, much less any action
or words by Allstate that could have led Plaintiffs to have the
reasonable belief that Allstate was indeed exercising any such
“controls and safeguards.” In short, the Amended Complaint
contains no allegations that Allstate did anything to make
Plaintiffs believe that Harris had the authority to bind Allstate
to any promises or that Harris's promises were being made
on Allstate's behalf. In fact, neither the Amended Complaint
nor common sense suggest any basis on which a reasonable
person could have believed that Harris had the authority to
bind Allstate to the types of promises alleged. 11
*10 In opposition to Allstate's motion to dismiss, Plaintiffs
rely on Kirschner v. KPMG LLC, 15 N.Y.3d 446, 912
N.Y.S.2d 508, 938 N.E.2d 941 (2010), for the proposition
that “[a] corporation must ... be responsible for the acts of its
authorized agents even if particular acts were unauthorized.”
Id. at 465, 912 N.Y.S.2d 508, 938 N.E.2d 941 (cited in
Pl. Opp. Mem., at 4.) Plaintiffs' reliance on Kirschner is
misplaced, as, even assuming that Plaintiffs have adequately
pleaded, or can plead, that Harris was an authorized Allstate
insurance agent, “[t]he mere creation of an agency for
some purpose does not automatically invest the agent with
‘apparent authority’ to bind the principal without limitation.”
Ford v. Unity Hospital, 32 N.Y.2d 464, 472–73, 346 N.Y.S.2d
238, 299 N.E.2d 659 (1973). Rather,
[a]n agent's power to bind his principal
is coextensive with the principal's
grant of authority. One who deals
with an agent does so at his peril,
and must make the necessary effort to
discover the actual scope of authority.
Upon failure to properly determine
the scope of authority, and in the
face of damages resulting from an
agent's misrepresentations, ‘apparent
authority’ is not automatically
available to the injured third party to
bind the principal ... The very basis
of the doctrine of apparent authority
indicates that the principal can be held
liable under the doctrine only where he
was responsible for the appearance of
authority in the agent to conduct the
transaction in question.
Id. (internal citations and quotations omitted) (emphasis
added). Here, other than stating, in general terms, that
Allstate, as a company, offers a number of financial services
(Am. Compl. at ¶ 8), Plaintiffs have made no factual
allegations to support their claim that Allstate ever authorized
Harris to act as its agent for any purpose other than, perhaps,
the placement of insurance. Plaintiffs' bare allegation that
Harris was an “agent” of Allstate is simply insufficient to
plead liability by Allstate, under the doctrine of apparent
authority, for the wide variety of claims Plaintiffs assert.
Finally, although Plaintiffs allege that Harris was supposed
to provide insurance policies for them through Allstate,
the Amended Complaint does not allege any failure by
Allstate to provide insurance 12 or to honor any insurance
obligations. Nor do Plaintiffs allege that Allstate made any
false statements regarding the terms of any policy issued to
them or regarding whether such a policy had been renewed.
Rather, to the extent any insurance policy is even implicated
in the Amended Complaint, Plaintiffs merely appear to
complain that Harris failed to use Plaintiffs' funds to make
regular payments of policy premiums, after promising that he
would. Again, this does not suggest any culpable conduct by
Allstate.
In sum, the Amended Complaint fails to allege any factual
basis for Plaintiffs' position that Harris had apparent authority
to bind Allstate with respect to any of the many investment
schemes alleged in this case. It also fails to allege any conduct,
whatsoever, by Allstate that could have induced reliance on
the part of Plaintiffs. While Plaintiffs allege that “defendants”
failed to keep numerous promises, Plaintiffs do not specify
that a single promise was ever made or sanctioned by Allstate.
For these reasons, Plaintiffs' claims against Allstate cannot
stand, and the Amended Complaint should be dismissed, as
against Allstate, under Rule 12(b) (6), for failure to state a
claim. 13
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2. Futility of Plaintiffs' Proposed Second Amended
Complaint
*11 In response to Allstate's motion to dismiss, Plaintiffs
seek leave to file a Second Amended Complaint, presumably
in an attempt to cure any pleading defect. Plaintiffs, however,
have actually submitted three different versions of a proposed
Second Amended Complaint to the Court. Through what
the Court assumes was attorney error, Plaintiffs filed one
version of a proposed amended pleading on the Court's
Electronic Case Filing (“ECF”) system, but apparently served
on Allstate (and submitted to this Court as a “courtesy
copy”) a nonconforming version. (See Second Amended
Complaint (“2d Am. Compl.”), Ex. A to Declaration
of Eric Andrew Suffin, dated Aug. 5, 2011 (“8/5/11
Suffin Decl.”) (Dkt.35); see also Service Copy of Second
Amended Complaint (“Served 2d Am. Compl.”), Ex. A to
8/5/11 Suffin Decl.) Then, later, in response to the Harris
Defendants' separate motion to dismiss, Plaintiffs filed yet
a third version, styled as an “Alternative Second Amended
Complaint.” (See Alternative Second Amended Complaint
(“Alt.2d Am.Compl.”), Ex. A to 11/10/11 Suffin Decl.) With
regard to allegations concerning Allstate, all three versions
differ only slightly from the Amended Complaint, and none of
the versions cure the defects discussed above, as none allege
facts sufficient to show that Harris had apparent authority to
bind Allstate to any of the alleged promises.
In their proposed amended pleadings, Plaintiffs first add an
allegation that, outside Harris's Forest Park office, there were
signs that displayed (1) the Allstate logo, (2) a telephone
number for “Forest Park Allstate,” and (3) the names of
both Harris and defendant HFIS. (See 2d Am. Compl. at ¶
51; Alt.2d Am. Compl. at ¶ 59; see also Served 2d Am.
Compl. at ¶ 48.) Plaintiffs also add a number of allegations
about information available on Allstate's corporate website,
as follows:
• “Defendant Allstate maintains and at other relevant times
maintained an internet website address accessible to the
public @ www.allstate.com.” (2d Am. Compl. at ¶ 10;
Alt.2d Am. Compl. at ¶ 16; see also Served 2d Am.
Compl. at ¶ 10.)
• “At defendant Allstate's website and at other websites
advertising defendant Allstate[,] defendant Allstate
represents to the public that defendant Allstate offers
‘financial’ ‘products' or ‘services.’ “ (2d Am. Compl. at
¶ 52; Alt.2d Am. Compl. at ¶ 60; see also Served 2d Am.
Compl. at ¶ 49 (same, except for omission of reference
to “services”).)
• “Initially in 2004 or 2005, in 2006 and in 2007
before investing with defendants plaintiffs visited
www.allstate.com and observed that defendant Allstate
does stocks and investor relations.” (2d Am. Compl. at ¶
59; Alt.2d Am. Compl. at ¶ 67; see also Served 2d Am.
Compl. at ¶ 56 (same except for omission of reference
to dates).)
• “Between 2005 and 2011 plaintiffs have visited
the www.allstate.com website many times since first
observing that defendant Allstate does stocks and
investor relations.” (2d Am. Compl. at ¶ 60; Alt.2d Am.
Compl. at ¶ 68; see also Served 2d Am. Compl. at ¶ 57
(same except for omission of reference to dates).)
*12 Lastly, Plaintiffs add an allegation that their claims
“may be supported by documents, including but not limited
to documents attached as Exhibits A, B, C and D.” (2d Am.
Compl. at ¶ 121; Alt.2d Am. Compl. at ¶ 129; see also Served
2d Am. Compl. at ¶ 118.) The four referenced exhibits are
attached to all three versions of Plaintiffs' proposed Second
Amended Complaint. Exhibit A is a photograph of a block
of signs. There is a sign for Allstate at the top of the block,
and underneath the Allstate sign is a sign that reads “Harris
Financial Insurance Services, Inc.,” with a phone number.
(Ex. A to 2d Am. Compl., Alt.2d Am. Compl.; Served 2d Am.
Compl.) At the lower right of the block, another sign reads
“Allstate Bryan Harris.” (Id.)
Exhibit B appears to be a series of screen prints of web pages.
(Ex. B to 2d Am. Compl., Alt.2d Am. Compl., Served 2d Am.
Compl.) The first page, which appears to have been taken
from an Allstate website, lists services offered by Allstate.
(Id.) The next two pages seem to be results from some type
of Internet search involving Harris and Allstate. (See id.)
None of the listed search results are Allstate websites. (Id.)
The next several pages include, inter alia, a screen print
apparently taken from another Allstate web page, referring to
Harris and stating, in part: “Bryan Harris is licensed to sell
Allstate insurance products only in the state(s) of Georgia.
If you do not reside in the state(s) of Georgia or you're not
insuring property located in the state(s) of Georgia, please
go to the Find an Agent section on allstate.com to search for
another agent.” (Id.) Also included are a number of web pages
taken from non-Allstate websites, such as superpages.com,
insiderpages.com, and citysearch.com, which refer in some
way to Allstate or Harris. (Id ) The exhibit also includes
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what appears to be a screen print of a webpage from a
Bluebox Entertainment website, listing Harris as the CEO
and Director of Operations. (Id.) The last page of the exhibit
appears to be a screen print of an Allstate web page that
refers to an individual named Sam Noah, identified on the
page as a Personal Financial Representative in New York;
this individual is nowhere mentioned in Plaintiffs' Amended
Complaint or memoranda. (See id.)
Exhibit C is comprised of several email messages, together
with two unsigned promissory notes and certain other
documents, which seem to have been email attachments. (See
Ex. C to 2d Am. Compl ., Alt.2d Am. Compl., Served 2d Am.
Compl.) The promissory notes, which are the first documents
appearing in this exhibit, do not bear Allstate's name or logo,
and, while they identify “Samuel's Temple” as the lender, they
do not identify the borrower or the guarantor. (See id.) At
least some of the emails contained in the exhibit seem to be
correspondence between Holmes and Harris, and relate to a
variety of topics, including “Blue Box Wiring Information,”
“Life Insurance,” “Bishop Long,” and “Tax ID Info.” (See id.)
In certain of the emails, Harris is identified as “Director of
Operations” of Bluebox. (See id.) The entire exhibit seems
disjointed, as the pages do not appear to be in any sort of order,
and the pages are variously forwards, backwards, right-side-
up, and upside-down. (See id.) The meaning of the emails
themselves is far from clear, 14 and is not explained anywhere
by Plaintiffs. 15
*13 Exhibit D contains an assortment of unrelated
documents. It includes a copy of a fund transfer application
and some documents related to a wire transfer. (Ex. C to 2d
Am. Compl., Alt.2d Am. Compl., Served 2d Am. Compl.)
None of these documents bear Allstate's name or logo.
(Id.) Also included in Exhibit D is a single document that
appears to be from Allstate, but nearly all of the identifying
information is redacted. (See id.) This document may be an
example of the type of documents regarding other Allstate
policyholders that Harris allegedly transferred to Holmes and
that Holmes then stored (see id., see also supra at 8 and n.
7), as the document does not appear to relate to Holmes or
to any member of his family. Also included in Exhibit D are
documents related to a criminal case against former Georgia
state representative Walter Ronnie Sailor, Jr. (Id.; see also
supra at 8, and nn. 6, 11.) Exhibit D also includes documents
that appear to have been printed from the Georgia Secretary of
State's website and contain corporate information regarding
the Harris Defendants. (Id.) Finally, Exhibit D contains what
appears to be a screen print of a page from a Bluebox website.
(Id.)
Finally, the version of the proposed Second Amended
Complaint that Plaintiffs served, but did not file, contains an
Exhibit E, which is comprised of a series of photographs, the
subjects of which are barely discernable and are not identified
in any way. (Ex. E to Served 2d Am. Compl.)
Nothing contained in any of Plaintiffs' proposed new
allegations, or in any of the above-described proposed
exhibits, can render Plaintiffs' claims against Allstate viable.
If anything, the new allegations detract from, rather than
support, Plaintiffs' arguments regarding the potential liability
of Allstate in this case. Citing general statements on Allstate's
website regarding the nature of its financial services business
cannot substitute for pleading affirmative conduct by Allstate
that could have led Plaintiffs to believe that Allstate had
authorized Harris to act as an investment counselor or to
plan investments for clients. In fact, to the extent Plaintiffs'
proposed exhibits suggest that Allstate, on its website, ever
made any mention of Harris, those exhibits suggest only that
Harris was licensed by Allstate to sell insurance in the State
of Georgia, not to engage in any other business in Allstate's
name or on its behalf. Nor can the necessary authority be
reasonably inferred from the fact that Harris, who is claimed
to have been an Allstate insurance agent, had an “Allstate”
sign outside his office. Nor do Plaintiffs' jumbled array of
email messages aid them, as none appear to have been sent
from any Allstate account; in fact, all of the emails authored
by Harris appear to have been sent from his private email
accounts, where he identified himself solely as the Director
of Operations of Bluebox.
As nothing contained in any version of Plaintiffs' proposed
Second Amended Complaint would cure the defects in
Plaintiffs' claims against Allstate, I recommend that Plaintiffs'
cross-motion for leave to amend, as against Allstate, 16 be
denied as futile. Further, as Plaintiffs are apparently unable to
plead any factual foundation, whatsoever, for their claim that
Harris had apparent authority to act for Allstate, I recommend
that Plaintiffs' claims against Allstate be dismissed with
prejudice.
II. ALLSTATE'S AND PLAINTIFFS' SANCTIONS
MOTIONS
A. Applicable Legal Standards
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1. Rule 11
*14 Under Rule 11 of the Federal Rules of Civil Procedure,
when an attorney files a complaint, motion, or other written
paper, he or she is representing to the Court that, “to the best
of [his or her] knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances, it is
not being presented for any improper purpose,” Fed.R.Civ.P.
11(b)(1), and that the claims, defenses, and other legal
contentions therein “are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law,” Fed.R.Civ.P.
11(b)(2). Further, in signing the submission, the attorney is
representing that, after reasonable inquiry, he or she believes
that “the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery.” Fed.R.Civ.P. 11(b)(3).
A party that believes Rule 11 has been violated may
move for sanctions. Fed.R.Civ.P. 11(c)(2). Rule 11, however,
provides a “safe harbor”: the sanctions motion may not be
filed with the Court if, within 21 days of service of the
motion, the offending party withdraws the challenged claim
or appropriately corrects it. Id. Thus, the motion—which
“must describe the specific conduct” that allegedly violates
the Rule—must be served, but not filed until at least 21
days after service. Id. It has been noted that this provision of
the Rule, which, in “plain language[,] ... expressly requir[es]
the serving of a formal motion,” exists for “good reason,”
Lancaster v. Zufle, 170 F.R.D. 7, 7 (S.D.N.Y.1996), as it
places the movant's adversary on notice of the motion it
will face if the matter is not remedied, see id. The Rule 11
“safe harbor” requirement is “strictly construed,” Banfield v.
UHS Home Attendants, Inc., No. 96 Civ. 4850, 1997 WL
342422, at *2 (S.D.N.Y. June 23, 1997) (JFK) (citing Hadges
v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2d Cir.1995)),
and has even been described as “jurisdictional in nature,” R.B.
Ventures, Ltd. v. Shane, No. 91 Civ. 5678(CSH), 2000 WL
1010400, at *2 (S.D.N.Y. July 20, 2000); see also ESI, Inc. v.
Coastal Corp. ., 61 F.Supp.2d 35, 68 (S.D.N.Y.1999) (where
movant had not complied with mandatory “safe harbor”
requirement, sanctions motion “must be denied without a
discussion of the merits of the motion”). It is an abuse of a
court's discretion to impose sanctions under Rule 11, where
the Rule's “safe harbor” requirement has not been met. See
Hadges, 48 F.3d at 1328.
In determining whether a plaintiff has engaged in conduct
violating Rule 11's requirements, courts apply an objective
standard of reasonableness, and look to see whether the
attorney's conduct was objectively reasonable at the time the
pleading was signed. See Morley v. Ciba–Geigy Corp., 66
F.3d 21, 25 (2d Cir.1995); Greenberg v. Chrust, 297 F.Supp.2d
699, 703 (S.D.N.Y.2004). Where a court finds that claims
or defenses have been asserted for the sake or harassment
or some other improper purpose, or that they lack any
evidentiary support, a court has the discretionary authority
under Rule 11(c) to impose monetary sanctions on either the
offending party or its counsel, or both. Morley v. Ciba–Geigy
Corp., 66 F.3d 21, 24 (2nd Cir.1995). Where the violation
is the assertion of an unwarranted legal claim or defense,
however, a court may only impose monetary sanctions against
counsel, not the represented party. Fed.R.Civ.P. 11(c)(5)(A).
A court may also “award to the prevailing party the reasonable
expenses, including attorney's fees, incurred for the motion,”
Fed.R.Civ.P. 11(c) (2); such an award may be made against
either a party or its counsel, seeFed.R.Civ.P. 11(c)(5); see also
Calloway v. Marvel Entertainment Group, 854 F.2d 1452,
1474 (2d Cir.1988) (holding that Rule 11 sanctions may be
imposed upon a represented party when the party “had actual
knowledge that filing the paper constituted wrongful conduct,
e.g. the paper made false statements or was filed for an
improper purpose.”), rev ‘d on other grounds by Pavelic &
LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 110
S.Ct. 456, 107 L.Ed.2d 438 (1989).
*15 The 1993 Advisory Committee Note to Rule 11 sets
forth certain factors that may be considered by the court
when deciding whether to impose sanctions or what sanctions
are appropriate in the given circumstances. Those factors
include: (1) “[w]hether the improper conduct was willful,
or negligent”; (2) “whether it was part of a pattern or
activity, or an isolated event”; (3) “whether it infected the
entire pleading, or only one particular count or defense”;
(4) “whether the person has engaged in similar conduct in
other litigation”; (5) “whether it was intended to injure”;
(6) “what effect it had on the litigation process in time or
expense”; (7) “whether the responsible person is trained in
the law”; (7) what amount, given the financial resources of
the responsible person, is needed to deter that person from
repetition in the same case”; and (8) “what amount is needed
to deter similar activity by other litigants.” Fed.R.Civ.P. 11
advisory committee note to 1993 amendments; see also,
e.g., Kochisarli v. Tenoso, No. 02 Civ. 4320, 2006 WL
721509, at *8 (E.D.N.Y. Mar.21, 2006) (applying factors, and
citing Simpson v. Putnam County Nat. Bank of Carmel, 112
F.Supp.2d 284, 291–92 (S.D.N.Y.2000)).
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2. The Court's Inherent Authority
A court's inherent authority to award attorneys' fees and
costs derives from “a court's need to manage its affairs so as
to achieve an orderly and expeditious resolution of cases.”
Bowler v. U.S. Immigration and Naturalization Service, 901
F.Supp. 597, 605 (S.D.N.Y.1995). Attorneys' fees may be
imposed if a party has continued an action “in bad faith,
vexatiously, wantonly, or for oppressive reasons.” Id. (internal
citations omitted). The Second Circuit has reasoned that
sanctions under the court's inherent authority should be based
on findings that the offending party has asserted colorless
claims and has acted in bad faith. See Eisemann v. Green, 204
F.3d at 396. 17
B. Allstate's Motion for Sanctions
Allstate's motion for Rule 11 sanctions against Plaintiffs and
their counsel, Suffin, was properly made and demonstrates
that sanctions are warranted, as against Suffin.
1. Plaintiffs' Failure To Take Advantage of Rule 11's
“Safe Harbor”
As a preliminary matter, Allstate complied with the
procedural requirements of Rule 11(a). On June 14, 2011,
Allstate sent Suffin a letter, which outlined Plaintiffs' pleading
deficiencies in detail, and requested that Plaintiffs voluntarily
withdraw the Amended Complaint. (Letter from Allstate to
Suffin, dated June 14, 2011, Ex. C to Declaration of Elizabeth
D. Schrero in Support of Motion of Defendant the Allstate
Corporation for Sanctions Under Rule 11, dated July 29, 2011
(“2/29/11 Schrero Decl.”) (Dkt.28).) Counsel for Allstate and
Suffin then participated in a telephone conference on June 16,
2011, during which Allstate's counsel reiterated her request
for Plaintiffs to withdraw the Amended Complaint. (See
Memorandum of Law in Support of the Motion of Defendant
the Allstate Corporation for Sanctions under Rule 11, dated
July 29, 2011 (“Allstate's Sanctions Mem.”), (Dkt.29) at 3.)
In response, Suffin apparently requested that Allstate consent
to an amendment of Plaintiffs' pleadings. (Id.) Counsel for
Allstate refused to consent without first being presented
with any evidence that supported Plaintiffs' claims against
Allstate, but told Suffin that, before proceeding with motion
practice, she would consider any evidence he could show her
that could support Plaintiffs' claims. As AUstate's counsel
describes their conversation, she asked Suffin to “come
forward with any support/evidence of a factual basis for
an allegation that Allstate made representations to Plaintiffs
concerning Harris' scope of authority in connection with the
funds Plaintiffs allegedly sent to Harris and Harris' alleged
investment schemes.” (Id.) (emphasis in original). AUstate's
counsel also sent Suffin a letter memorializing their June 16,
2011 telephone conference. (Id. at 4.)
*16 When Plaintiffs neither withdrew the Amended
Complaint nor came forward with any support for their
allegations against Allstate, Allstate filed its motion to
dismiss on June 28, 2011. (Id.) Allstate also prepared a motion
for sanctions, which, in accordance with Rule 11(c)(1)(A), it
served on Plaintiffs on July 6, 2011 (together with a “safe
harbor” letter), but did not file. (See Letter from Allstate
to Holmes, dated July 6, 2011, Ex. F to July 29 Schrero
Decl.) When Plaintiffs did not withdraw their claims within
21 days, Allstate proceeded to file its sanctions motion with
the Court. (See Allstate's Sanctions Motion.) Accordingly,
Allstate's sanctions motion is properly before the Court, and
the Court must now determine whether sanctions are justified,
and, if so, whether sanctions should be imposted against
Plaintiffs, Suffin, or both.
2. The Relevant Factors Weigh in Favor of Sanctioning
Plaintiffs' Counsel.
On balance, the relevant factors suggest that the imposition
of sanctions against Suffin (although not Plaintiffs) would be
appropriate in this case. In this regard, the Court notes that
the core deficiency in the Amended Complaint is the assertion
of claims against Allstate that are not warranted based on the
law, a matter that falls under Rule 11(b)(2). Under this section,
as noted above, Rule 11 sanctions against a party may not
be imposed; such sanctions, where warranted, may only be
imposed on counsel. See Morley, 66 F.3d at 24.
This case actually began with the filing of a pro se
Complaint by Holmes. When Suffin then appeared on
behalf of Holmes and the Church, Suffin proceeded to file
an Amended Complaint. Instead of substantively revising
Holmes' pleading, though, Suffin signed and filed an amended
pleading that adopted the same flawed theory as Holmes'
original pro se pleading, as to the claimed liability of
Allstate. In other words, in his role as counsel, Suffin appears
to have done nothing to disabuse Holmes of the notion
that he had viable claims against Allstate for, inter alia,
conversion and fraud, based solely on Harris's conduct and
alleged representations; rather Suffin simply filed a revamped
version of the same flawed allegations against Allstate.
In fact, the Amended Complaint increased the damages
originally claimed by Holmes from $3 million to $10 million
(sought “jointly and severally” from each defendant), with
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an unspecified part of that sum purportedly representing
damages for the death of a Church member. (Am. Compl.
at ¶ 94.) Nowhere does the Amended Complaint explain
how Holmes and the Church could have standing to seek
damages for a congregant's death, much less how Allstate
could possibly be responsible for that death.
While this Court cannot conclude that Suffin filed the
Amended Complaint in bad faith, i.e., with the deliberate
intent to harass Allstate or to cause it harm, it appears that,
at a minimum, he failed to give adequate counsel to his
clients. Further, even if not “willful,” Suffin's decision to
adhere to his client's former position (and even to expand
it) in the face of Allstate's repeated efforts to point out the
obvious legal flaws in those claims was at least reckless.
While this litigation is still in an early stage, it is also worth
emphasizing that Suffin not only filed an Amended Complaint
that contained no allegations capable of supporting Plaintiffs'
claims against Allstate, but also submitted three versions
of a proposed Second Amended Complaint that are equally
deficient. As discussed below, Suffin also met AUstate's
sanctions motion by filing a procedurally defective and utterly
baseless sanctions motion of his own, against Allstate. (See
discussion infra, at 34–39.) This is sufficient to show a
pattern of frivolous filings. See Kochisarli v. Tenoso, No. 02
Civ. 4320(DRH)(MLO), 2006 WL 721509, at *8 (E.D.N.Y.
Mar. 21, 2006) (imposing sanctions under Rule 11 for, inter
alia, “submitting essentially the same indecipherable set of
counterclaims for a third time”).
*17 Moreover, this is not the first time that Suffin has
been criticized by the Court for filing a frivolous pleading.
In Bibb v. New York City Housing Authority, 09 Civ.
9956(NRB), 2010 WL 3958646 (S.D.N.Y. Sept. 30, 2010),
as Allstate points out (see Allstate's Sanctions Mtn. at n.
5.), Suffin received a warning from the Honorable Naomi
Reice Buchwald, U.S.D.J., for filing a complaint that the
Court found “wholly lacking in merit, even if every fact in
the complaint and supporting affidavit [were] accepted as
true.” (Id. at *6.) Judge Buchwald acknowledged that the
defendant's Rule 11 motion—brought against Suffin, his law
firm, and plaintiff for filing “baseless and frivolous” claims—
was “not unwarranted,” but “given Suffin's recent admission
to the bar,” she “hope[d] a word of caution [would] be
sufficient to encourage him to be more circumspect before
commencing other actions.” (Id. at *6–7.) She cautioned:
We wish to stress to Suffin that it is part
of his function as an attorney, when
appropriate, to explain to his client that
she does not have a legitimate legal
claim. Such action may assist the client
in appreciating the situation in which
she finds herself ... We are hopeful that
Suffin will use better judgment in the
future.
(Id. at *7.) 18 It does not appear that Suffin took the Court's
“word of caution” to heart, in this case. Further, while
Judge Buchwald noted, in her 2010 opinion, that Suffin was
“recently admitted to the bar,” he now holds himself out as
having been in practice for four years and as having handled
matters in a wide range of practice areas. 19 At this point,
there is less reason to be forgiving of Suffin's unwillingness
or inability to educate and guide his clients when they lack a
legitimate claim.
In addition, the pleading defect at issue here—the lack of
any allegations capable of supporting a legal claim against
Allstate—infected Plaintiffs' entire pleading, as to Allstate.
Suffin's filing of a deficient pleading, and equally deficient
proposed amended pleadings has also slowed the litigation
and necessitated the expenditure of both time and money by
Allstate to move against Plaintiffs' claims and to oppose his
futile cross-motion to amend.
All of these factors suggest that, while (in the absence of
a showing of bad faith) the Court should not exercise its
inherent authority to sanction Suffin, at least some Rule 11
sanction would be warranted here. The Court notes, however,
that Suffin is a solo practitioner, who may not have significant
resources to pay a substantial sanctions award. It is difficult
for the Court to determine, without additional information,
the amount of a sanctions award that would be needed to
deter Suffin from further Rule 11 violations, or, by extension,
to deter similar activity by others. This Court will return to
this question after first addressing the merits of Plaintiffs'
sanctions motion against Allstate, given that Allstate is not
only seeking sanctions on its own motion, but is also seeking
sanctions for having to oppose Plaintiffs' motion.
C. Plaintiffs' Sanctions Motion Against Allstate
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*18 After Allstate moved for Rule 11 sanctions against
Plaintiffs and their counsel, Plaintiffs filed a Rule 11 motion
against Allstate. Unlike Allstate's motion, however, Plaintiffs'
motion was not properly made, and should not be considered
by the Court because of its procedural defects. In any event,
even if the Court were to consider the motion, it should be
denied as wholly lacking in merit. Indeed, Plaintiffs' sanctions
motion is itself frivolous.
1. Plaintiffs' Failure To Satisfy the Procedural
Requirements of Rule 11
On August 22, 2011, Plaintiffs sent a letter to Jay Cho,
Esq. (“Cho”), counsel for Allstate, stating that Allstate had
violated Rule 1l(b)(b)(3). (See Letter from Suffin to Cho,
dated Aug. 22, 2011 (“8/22/11 Suffin Ltr.”), Ex. A to
Declaration of Eric Andrew Suffin in Support of Plaintiffs'
Motion for Rule 11 Sanctions, dated Sept. 30, 2011 (“9/30/11
Suffin Decl.”) (Dkt.52) .) This is the provision of Rule 11
under which an attorney is supposed to certify to his or
her reasonable, informed belief that “the factual contentions
[made in a pleading or other written submission] have
evidentiary support or, if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for
further investigation or discovery.” Fed.R.Civ.P. 11(b)(3).
Here, Suffin's August 22 letter listed certain statements from
submissions made by Allstate and, without any elaboration
or explanation, merely claimed that the statements were
false and without evidentiary support. The letter only stated
that, “[p]ursuant to Fed.R.Civ.P. 11(c) and for the specific
reasons described below, we request that the parts of the
memos and Declaration in violation of Fed.R.Civ.P. 11(b)(3)
be withdrawn or appropriately corrected within 21 days or
within some other time set by the court.” (8/22/11 Suffin Ltr.,
at 1–2.) The letter did not explicitly state that Plaintiffs were
going to file a sanctions motion, and it did not enclose a copy
of any sanctions motion.
On August 30, 2011, Suffin wrote another letter to Cho.
(Letter from Suffin to Cho, dated Aug. 30, 2011 (“8/30/11
Suffin Ltr.”), Ex. B to 11/30/11 Suffin Decl.) The language
of the August 30 letter mirrored the language of the August
22 letter, but also complained of additional statements by
Allstate. (See 8/30/11 Suffin Ltr., at 2.) Like the earlier letter,
the August 30 letter did not explicitly state that Plaintiffs
were going to file a sanctions motion and it did not include
a copy of the sanctions motion that was eventually filed by
Plaintiffs. (Id.) As explanation for the request to withdraw the
listed statements, Suffin merely wrote that they did “not have
evidentiary support as required by Fed.R.Civ.P. 11(b)(3) and
were false.” (Id.)
Plaintiffs then went ahead and filed their Rule 11 motion
on September 30, 2011, in disregard of the “safe harbor”
procedural requirements set out in the Rule. Although
Plaintiffs now ask the Court to “treat the August 22, 2011 and
August 30, 2011 letters ... as fulfilling Plaintiffs' requirement
to serve the Rule 11 Motion twenty one (21) days before
presenting it to the Court” (Plaintiffs' Memorandum of Law
in Further Support of Plaintiff's Motion for Rule 11 Sanctions,
dated Oct. 24, 2011 (“Pl. Reply to Pl. Sanctions Mtn.”)
(Dkt.59), at 2), this Court has repeatedly refused to impose
sanctions based on mere warning letters, even where the
challenged conduct was sanctionable. See Gamla Enterprises
North America, Inc. v. Lunor–Brillen Design U. Vertriebs
GMBH, No. 98 Civ. 992, 2000 WL 193120, at *3 (S.D.N.Y.
Feb.17, 2000) (denying meritorious Rule 11 motion where
warning to offending party was given by letter alone, even
where warning letter “conformed to the spirit of the rule”); see
also Diamonds.net LLC v. Idex Online, Ltd., 254 F.R.D. 475,
476–77 (S.D.N.Y.2008) (finding that a warning letter does not
satisfy the Rule 11 requirement of serving a formal motion);
Weeks Stevedoring Co. Inc. v. Raymond Int'l Buildiers, Inc.,
174 F.R.D. 301, 305 (S.D.N.Y.1997 (same); Bellistri v. US,
No. 94 Civ. 3768(KMW), 1997 WL 115545, at *3 (S.D.N.Y.
Mar.14, 1997) (same); Gal v. Viacom International, Inc.,
403 F.Supp.2d 294, 309 (S.D.N.Y.2005) (same); Schweizer v.
Mulvehill, 93 F.Supp.2d 376, 413 (S.D.N.Y.2000) (same). 20
*19 Accordingly, based on the express language of Rule 11
and this Court's precedent, Plaintiffs' sanctions motion should
be denied as procedurally defective.
2. Plaintiffs' Motion Is Also Meritless
In any event, even if Rule 11's procedural requirements
could be deemed satisfied by the service of Suffin's warning
letters, Plaintiffs' sanctions motion would completely fail
on its merits, as it does nothing more than catalog five
statements made at various points, by Allstate or its counsel,
and assert—without any explanation-that these statements
lack evidentiary support. (Plaintiffs' Memorandum of Law in
Support of Plaintiffs' Motion for Rule 11 Sanctions, dated
Sept. 30, 2011, (“Pl. Sanctions Mem.”) (Dkt.53), at 2.) The
challenged Allstate statements are as follows:
(1) “... Holmes is claiming to be in wrongful possession
of confidential documents belonging to Allstate (which,
if true, would have been taken without Allstate's
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authorization), the reference to those documents can
have no purpose other than to attempt to prompt a
settlement offer from Allstate.” (Memorandum of Law
in Support of the Motion of Defendant the Allstate
Corporation To Dismiss the Amended Complaint as
Against the Allstate Corporation, dated June 28, 2011
(“Allstate Mtn.–To–Dismiss Mem.”) (Dkt.20), at 22, n.
7.)
(2) “... where, as here, the Plaintiff's attorney: (1) has
advanced meritless factual allegations that have no
evidentiary support; and (2) has failed to investigate the
law before bringing an action and filing and serving a
complaint that fails woefully to comply with the well
established pleading requirements of the FRCP, Allstate
must turn to Rule 11 for legal recourse.” (Allstate
Sanctions Mem. at 1.)
(3) “... there is no good faith basis for Plaintiffs to proceed
with the instant action against Allstate.” (Id.)
(4) “The obvious frivolity of the Complaint ...” (Id.)
(5) “A copy of a black-lined version of the Proposed
Second Amended Complaint showing a comparison
against the Complaint, dated August 3, 2011, is attached
hereto as Exhibit ‘A.’ “ (Declaration of Elizabeth D.
Schrero in Further Support of Motion of Defendant
the Allstate Corporation To Dismiss the Amended
Complaint and in Opposition to Plaintiffs' Cross–Motion
for Leave To Amend Their Amended Complaint, dated
Aug. 19, 2011 (Dkt.45), ¶ 2.)
(Id. at 2–3.)
Most of these statements-including statements that Plaintiffs'
counsel failed to comply with pleading requirements, lacked
good faith in proceeding with unsupported claims against
Allstate, and filed an obviously frivolous pleading—are in the
nature of arguments advanced on Allstate's motions to dismiss
and for sanctions. As they are not “factual contentions,” these
statements are not even not covered by the provision of Rule
11 on which Plaintiffs rely for their sanctions motion. (See
Plaintiffs' Sanctions Mem. at 2 (citing Fed.R.Civ.P. 11(b)
(3).) Moreover, for the reasons discussed above, this Court
generally agrees that Plaintiffs' claims against Allstate were
unsupported and frivolous.
*20 To the extent Plaintiffs complain about Allstate's
supposition that Plaintiffs may have been attempting to exact
a settlement from Allstate by referring to Holmes' cache
of confidential Allstate documents, this Court also agrees
that this is how Plaintiffs' conduct appeared; indeed, on this
subject, Plaintiffs' counsel himself made statements to the
Court that lend credence to Allstate's stated concerns. During
a case management conference on July 26, 2011, Allstate's
counsel told the Court that she had spoken with Suffin about
the confidential documents, and that Suffin had demanded
$30,000 for the transfer of the documents to Allstate. (July 26,
2011 Rule 16 Conference Transcript, at 10, Ex. D to 10/17/11
Schrero Decl.) Suffin said that counsel had misunderstood
his statements, and that he had only “discussed that there
may be a dollar amount that would be involved in the
transfer.” (Id. at 12.) Nonetheless, Suffin did not deny that he
had mentioned the $30,000 figure to Allstate's counsel in their
conversation (see id . at 13), and when asked by the Court why
Holmes even had possession of Allstate documents bearing
confidential, personal information of policyholders, Suffin
repeatedly expressed his understanding that Holmes believed
the documents were “collateral” for his investments. (See id.
at 12, 13, 14.) Under the circumstances, Allstate's suggestion
that Holmes may have been trying to “prompt a settlement
offer” is hardly unsupported.
Finally, the Court could not even discern what Plaintiffs were
complaining about, with regard to Allstate's proffered black-
lined version of the proposed Second Amended Complaint
until Plaintiffs argued, on reply, that Allstate's black-lining
did not incorporate the exhibits attached to the proposed
amended pleading. (See Pl. Reply to Pl. Sanctions Mtn. at
5.) Plaintiffs' contention on this point is patently frivolous.
A black-lined document is intended to track changes
made in the text of a document, and Plaintiffs apparently
have no quarrel with whether Allstate accurately tracked
any proposed modifications to their original allegations.
Moreover, Allstate's black-lined document, submitted for the
convenience of the Court, shows that exhibits were added
to the proposed Second Amended Complaint. (See Ex. A
to 8/19/11 Schrero Decl., ¶¶ 48 (highlighting addition of
reference to Ex. A), 118 (highlighting addition of allegation
that “Plaintiff's causes of action may be supported by
documents, including but not limited to documents attached
as Exhibits A, B, C and D”).)
As Plaintiffs have not demonstrated that a single statement
made by Allstate was, in fact, either false or unsupported,
Plaintiffs' sanctions motion cannot succeed, even apart from
its procedural flaws. To the contrary, it is a plainly meritless
motion, and Allstate legitimately asks that Plaintiffs or their
counsel be made to bear Allstate's fees and costs in having
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to respond to it. (See Defendant The Allstate Corporation's
Memorandum of Law in Opposition to Plaintiffs' Motion For
Sanctions Under Rule 11, dated Oct. 17, 2011 (Dkt.58), at 16;
see alsoFed.R.Civ.P. 11(c) (2) (allowing a court to award the
fees and costs of a sanctions motion to the prevailing party).)
D. Appropriate Sanctions Award in This Case
*21 Based on the flaws in Plaintiffs' pleaded claims against
Allstate, the fact that Plaintiffs, through counsel, insisted on
proceeding with these defective claims despite notice of the
defects, and the fact that Allstate has, as a result, incurred
fees and costs in what should have been unnecessary motion
practice, I recommend that sanctions be awarded in Allstate's
favor, and that the award be made against Suffin, as counsel.
As noted above, however, the Court is not currently in a
position to determine the appropriate amount of a monetary
sanction, given that it lacks information regarding Suffin's
financial circumstances. Accordingly, I recommend that
Allstate be directed to submit to the Court an itemized
statement of the attorneys' fees and costs it incurred on its
motion to dismiss, as well as on both of the sanctions motions,
and that Suffin be directed to submit a sworn affidavit or
declaration made under penalty of perjury, setting out the net
income earned by his law practice over the past 12 months.
I further recommend that Suffin be required, under Rule
11(c), to pay to Plaintiffs the reasonable fees and expenses
incurred in filing or opposing the referenced motions, up
to a cap of 10 percent of the annual net income received
from his law practice, as reflected in his financial affidavit
or declaration. See Weinraub v. Glen Rauch Securities, Inc.,
419 F.Supp.2d 507, 520 (S.D.N.Y.2005) (noting that under
Rule 11, a court must consider the financial circumstances
of the sanctioned party); see also Association of Holocaust
Victims for Restitution of Artwork and Masterpieces v. Bank
Austria Creditanstalt AG, No. 04 Civ. 3600(SWK), 2005
WL 3099592, at *8 (S.D.N.Y. Nov.17, 2005) (“As a final
matter of the [Rule 11] sanctions determination, courts
must take into account the financial circumstances of the
sanctioned party.” (citing Sassower v. Field, 973 F.2d 75, 81
(2d Cir.1992)); Anschutz Petroleum Marketing Corp. v. E.W.
Saybolt & Co., Inc., 112 F.R.D. 355, 357 (S.D.N.Y.1986)
(finding that “adequate deterrence may permissibly fall
short of full compensation,” and that the court has the
discretion to fashion a Rule 11 sanction for purposes of
deterrence which awards part, but not all, of the opposing
party's attorney's fees); Becker v. Dunkin' Donuts of America,
Inc., 665 F.Supp. 211, 217–18 (S.D.N.Y.1987) (taking into
consideration offending litigant's ability to pay, even though
sanctions were fully warranted).
III. THE HARRIS DEFENDANTS' MOTION TO
DISMISS
As noted above (see n. 2, supra ), the Harris Defendants never
properly filed their motion to dismiss on the Court's ECF
system, and the Court would be entitled to reject the motion on
that basis. I do not recommend this, however, as some of the
pleading issues raised by the motion are significant, and, for
the sake of efficient case management, it would be preferable
to resolve those issues as early as possible. For this reason,
this Court has considered the merits of the Harris Defendants'
motion.
A. Applicable Legal Standards
*22 The standards governing motions to dismiss brought
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
are set forth in connection with this Court's discussion of
Allstate's motion to dismiss. (See supra, at 12.) Additionally
relevant to the Harris Defendants' motion are Rules 8(a) and
9(b), which address the question of how specific a plaintiff s
allegations must be.
Rule 8(a) states that a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Under this Rule, a pleading
“does not have to set out in detail the facts on which the claim
for relief is based, but must give the court and the defendant
fair notice of what [the] plaintiffs claim is and the grounds
upon which it rests.” Owens v. Suter, 02 Civ. 8198(SHS), 2003
WL 942554, at *1 (S.D.N.Y. Mar. 7, 2003) (internal citations
and quotations omitted); see Salahuddin v. Cuomo, 861 F.2d
40, 42 (2d Cir.1988) (“The statement should be plain because
the principal function of pleadings under the Federal Rules is
to give the adverse party fair notice of the claim asserted.”).
Rule 8(a) is violated where a plaintiff, by engaging in “group
pleading,” fails to give each defendant fair notice of the claims
against it. Pierson v. Orlando Regional Healthcare Systems,
Inc., 619 F.Supp.2d 1260, 1273 (M.D.Fla.2009) (dismissing
complaint because group-pleading method of collectively
referring to individual defendants and two physician groups
as “Peer Review Defendants” throughout complaint did not
satisfy the “fair notice” requirement of Rule 8).
Rule 9(b) requires a party to “state with particularity the
circumstances constituting fraud or mistake.” Fed.R.Civ.P.
9(b). To state a claim for fraud under New York law, a party
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must plead that: (1) the defendant(s) made a material false
representation or omission, (2) the defendant(s) intended to
defraud the plaintiff(s) thereby, (3) the plaintiff(s) reasonably
relied upon the representation, and (4) the plaintiff(s) suffered
damage as a result of this reliance. Banque Arabe et
Internationale D'Investissement v. Md. Nat'l Bank, 57 F.3d
146, 153 (2d Cir.1995) (relying on New York law) (citations
omitted). To satisfy the Rule 9(b) pleading requirements, a
complaint alleging fraud must: “(1) specify the statement [or
omissions] that the plaintiff contends were fraudulent, (2)
identify the speaker, (3) state where and when the statements
[or omissions] were made, and (4) explain why the statements
[or omissions] were fraudulent. Scantek Medical, Inc. v.
Sabella, 583 F.Supp.2d 477, 493 (S.D.N.Y.2008) (internal
quotations and citations omitted).
In addition, a fraud complaint must also “allege facts that give
rise to a strong inference of fraudulent intent,” which may be
accomplished “(a) by alleging facts to show that defendants
had both motive and opportunity to commit fraud, or (b) by
alleging facts that constitute strong circumstantial evidence of
conscious misbehavior or recklessness.” Id. Motive involves
“concrete benefits that could be realized by one or more of the
false statements ... alleged” and opportunity is shown by “the
means and likely prospect of achieving concrete benefits by
the means alleged.” Shields v. Citytrust Bancorp, Inc., 25 F.3d
1124, 1129 (2d Cir.1994). To allege conscious misbehavior
or recklessness, “the Complaint must link the misleading
statement with facts that give rise to an inference that the
speaker had a basis for knowing it was false.” Shahzad v. H.J.
Meyers & Co., 923 F.Supp. 57, 60 (S.D.N.Y.1996) (citations
omitted).
*23 Rule 9(b) also requires plaintiffs to “connect the
allegations of fraud to each individual defendant.” Trustees
of Plumbers and Pipefitters Nat. Pension Fund v. De–
Con Mechanical Contractors, Inc., 896 F.Supp. 342, 347
(S.D.N.Y.1995); see also Mills v. Polar Molecular Corp., 12
F.3d 1170, 1175 (2d Cir.1993) (“Rule 9(b) is not satisfied
where the complaint vaguely attributes the alleged fraudulent
statements to ‘defendants.’ ”). Plaintiffs alleging fraud “may
not rely on sweeping references to acts by all or some of the
defendants because each named defendant is entitled to be
apprised of the facts surrounding the alleged fraud.” Trustees
of Plumbers and Pipefitters Nat. Pension Fund, 896 F.Supp.
at 347. Further, the allegations must demonstrate that “each
[d]efendant had a specific intent to defraud either by devising,
participating in, or aiding and abetting the scheme.” Id.
The pleading requirements of Rule 9(b) apply both to fraud
claims and to “other claims that are premised on fraud.”
Daly v. Castro Llanes, 30 F.Supp.2d 407, 414 (S.D.N.Y.1998)
(citing O'Brien v. Nat'l Property Analysts Partners, 936 F.2d
674, 676 (2d Cir.1991)). The particularity requirements of
Rule 9(b) also apply to negligent misrepresentation claims.
In re Marsh & McLennan Cos. Sec. Litig., 501 F.Supp.2d
452, 495 (S.D.N.Y.2006) (“Negligent misrepresentation
claims must be pleaded with particularity pursuant to Rule
9(b).”). Accordingly, Plaintiffs' claims of fraud, negligent
misrepresentation, and violation of New York York Debtor
and Creditor Law § 276 are all subject to Rule 9(b)'s pleading
requirements. See also In re Sharp Intern. Corp. 403 F.3d 43,
54 (2d Cir.2005) (noting that New York Debtor and Creditor
Law § 276 must be pleaded with specificity, under Rule 9(b)).
B. Adequacy of Plaintiffs' Allegations Against the
Harris Defendants
In their motion to dismiss, the Harris Defendants argue,
first, that Holmes does not have authority to speak for
Samuel's Temple and thus lacks “standing” to assert claims
on the Church's behalf. Second, the Harris Defendants
argue that Plaintiffs' claims as to them fail under Rules
8(a), 9(b), and 12(b)(6) of the Federal Rules of Civil
Procedure. While their asserted “standing” argument appears
misplaced, the Harris Defendants' arguments for dismissal of
the Amended Complaint on the basis of pleading deficiencies
are persuasive.
1. Propriety of Naming Samuel's Temple as a Plaintiff
As an initial matter, the Harris Defendants contend that
Samuel's Temple is not controlled by Holmes and that the
Church itself never assented to bringing this action. (See
Harris Defs. Mem., at 6; see also id., at 8 (stating that Holmes
“has no authority whatsoever to bring this lawsuit on behalf
of the Church”).) Rather, the Harris Defendants assert that the
person with authority to act for the Church is Shirley Holmes
Sulton (“Sulton”), Senior Pastor (and purportedly the only
pastor) of Samuel's Temple and Harris's mother, who, they
contend, has not authorized this lawsuit. (Id.) In support of
their position on this point, the Harris Defendants attach a
declaration of Sulton, in which she states:
*24 My son Tyrone is not the pastor,
nor has he ever been the pastor
of Samuel's Temple. Furthermore,
he has no executory or signatory
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powers associated with the church.
I maintain and control all financial
matters concerned with the church.
Neither the church nor I have instituted
any lawsuit or proceedings against Mr.
Bryan Michael [Harris]. Any monies
that I have sent to Mr. Bryan Michael
Harris, whom I consider a loyal and
committed son, are personal matters
between Mr. Harris and me. I am not,
nor will I become a party to the current
lawsuit fostered by my son against
Mr. Harris. Samuel's Temple COGIC
is also not a party to the suit. My son,
Tyrone, does not possess the signatory
powers of the church to institute a suit
against Mr. Harris.
(Declaration of Frank Wheaton in Support of Defendants'
Motion to Dismiss the Amended Complaint of Plaintiffs,
dated Oct. 10, 2011 (“Wheaton Decl.”) (Dkt.56), at Ex. C
(Declaration of Shirley Holmes–Sulton, dated Aug. 12, 2011
(“Sulton Decl.”)), at 1.) The Harris Defendants also appear to
contend that the funds at issue in this case are Church funds,
and that Holmes has no personal standing to assert claims for
recovery of those funds. (See Harris Defs. Mem., at 8–9.)
In response to these arguments, Plaintiffs submit certain
documents purporting to show the Church's authorization for
the suit. (See 11/10/11 Suffin Decl., at Ex. C (email from
Sulton to Holmes, dated Oct. 18, 2011, and attachment),
Ex. D (Resolution and Minutes of Special Meeting of the
Samuel Temple Church of God in Christ, Inc.).) Plaintiffs
also submit their proposed “Alternative Second Amended
Complaint” in response to the Harris Defendants' arguments.
(Alt.2d Am.Compl.)
Given that Samuel's Temple has itself been named as a
plaintiff in this case and is asserting claims on its own behalf,
it is evident that the Harris Defendants' argument regarding
the Church is not appropriately styled as a “standing”
argument. Certainly, the Church would be a real party in
interest to a dispute over the disposition of Church funds.
What the Harris Defendants actually argue, with respect to
the Samuel's Temple, is that whoever purported to act on its
behalf in authorizing this lawsuit was without power to do so.
As shown by the parties' competing submissions, this raises an
issue of fact that cannot be resolved without a more complete
record.
As for the Harris Defendants' seeming argument that Holmes
has no standing to challenge the alleged conversion of funds
belonging to the Church, it is unclear whether Holmes
may be claiming any personal interest in the money, or,
alternatively, whether he may be seeking to proceed as a
third-party beneficiary to agreements allegedly made between
the Church and any of the Harris Defendants regarding the
use of the funds in question. For example, while Holmes
may have never had a right to direct Harris to purchase a
home for him with Church money, if this was something
that Harris promised to Samuel's Temple, and Holmes stood
to benefit from the purchase, then he may have standing
to assert claims against Harris in his own right, for breach
of that promise. Moreover, several of the allegations in the
Amended Complaint, while confusing because they draw no
clear distinction between the two plaintiffs, appear to relate
to personal claims by Holmes. For instance, Holmes seems
to claim that Harris promised him employment at Bluebox,
and then reneged on that promise. Regardless of the viability
of such claims, there seems to be little question that Holmes
would have a personal stake in their outcome.
*25 For these reasons, the Harris Defendants' challenge to
Plaintiffs' “standing” should be rejected at this time, without
prejudice to raise the issue again at a later juncture, on a
clearer pleading and a more complete record, should the case
proceed.
2. Sufficiency of Pleading Under Rules 8(a) and 9(b)
The Harris Defendants are more persuasive in their argument
that the Amended Complaint fails to satisfy the pleading
requirements of Rules 8(a) and 9(b). The most glaring
defect, under both rules, is Plaintiffs' pervasive “group
pleading,” both with respect to (a) the injuries sustained
by “plaintiffs” (referred to collectively) and (b) the alleged
misconduct of “defendants” (also referred to collectively). As
to the former, as noted above, the Amended Complaint fails
to specify whether Holmes entrusted any of his own money to
any defendant, and, if not, the nature of the consideration he
may have provided for any promises made to him personally.
As to the latter, it appears that Plaintiffs or their counsel
may have simply conducted an online search for companies
of which Harris was an officer (see Ex. D to proposed 2d
Am. Compl.), and then named those companies as additional
defendants without any knowledge or information as to what
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role, if any, each of them may have played in the transactions
alleged.
Plaintiffs' failure to differentiate among the Harris Entities,
so as to allege the nature of each particular defendant's
misconduct, has resulted in a failure by Plaintiffs to give each
defendant “fair notice” of Plaintiffs' claims and “the grounds
upon which [they] rest[ ],” as required by Rule 8(a). Owens,
2003 WL 942554, at *1 (internal citations and quotations
omitted). For essentially the same reason, and as the Amended
Complaint also wholly fails to particularize any statements by
Defendants that were allegedly false or misleading, Plaintiffs
have grossly violated Rule 9(b), as well. See Trustees of
Plumbers and Pipefitters Nat. Pension Fund, 896 F.Supp. at
347.
As to the Harris Defendants' arguments regarding the
independent insufficiency of each of Plaintiffs' claims under
Rule 12(b) (6), 21 the vagueness of much of the Amended
Complaint makes it difficult for the Court even to consider
those arguments. It is impossible to determine, for example,
whether Plaintiffs' conversion claim necessarily duplicates
their breach-of-contract claim, as the Harris Defendants argue
(see Harris Defs. Mem., at 15 (citing Salem v. Software
Guidance and Assistance, Inc., No. 96 Civ. 8437(AGS), 1997
WL 777402, at *5 (S.D.N.Y. Dec.16, 1997))), when the
particular contract(s) at issue are not well identified and when
the subject of Plaintiffs' claim of conversion may be money,
but may also be tangible goods. (See, e.g., Am. Compl. at
¶ 84 (alleging that Defendants “comingled and fraudulently
converted plaintiffs' investment capital for defendant Harris's
pecuniary gain”); ¶ 80 (alleging conversion of “various
personal property owned by plaintiff Holmes, including a
rifle, hard drives, two (2) Mackie speakers, video footage,
and sound tools essential to plaintiff Holmes's music and
television production, documents, video masters, and music
masters”).)
*26 Similarly, the Court cannot discern whether, as the
Harris Defendants argue, Plaintiffs' conversion claim is
barred by the applicable three-year statute of limitations
(see Harris Defs. Mem., at 15), given that the Amended
Complaint alleges that Harris converted the physical property
of Holmes “[a]t some point in 2008” (Am. Compl. at ¶ 80),
but does not specify when in 2008 the alleged conversion
occurred. Further, to the extent Plaintiffs are claiming the
conversion of money, see, e.g., Ehrlich v. Howe, 848 F.Supp.
482, 492 (S.D.N.Y.1994) (noting that an action for conversion
of money may lie if the pleading alleges that “the money
converted was in specific tangible funds of which the claimant
was the owner and entitled to immediate possession”), the
Amended Complaint only alleges when certain funds were
transferred to the Harris Defendants (see Am. Compl. at
¶¶ 55–58, 60), not when any particular acts of conversion
occurred.
Because of the significant pleading defects present in the
Amended Complaint against the Harris Defendants—defects
that are not remedied by any version of Plaintiffs' proposed
Second Amended Complaint—I recommend that the Harris
Defendants' motion to dismiss be granted under Rules
8(a) and 9(b) of the Federal Rules of Civil Procedure. In
this instance, though, I recommend that the dismissal be
without prejudice to filing an amended pleading that actually
addresses the defects identified herein, as Plaintiffs may
have viable claims against Harris and/or one or more of the
Harris Entities, for, inter alia, misappropriating a large sum
of money allegedly entrusted to them. SeeFed.R.Civ.P. 15(a)
(stating that courts “should freely give leave [to amend] when
justice so requires”); Rich v. Maidstone Fin., Inc., No. 98
Civ. 2569(DAB), 2001 WL 286757, at *12 (S.D.N.Y. Mar.23,
2001) (holding that leave to amend should be given when
the court “cannot determine that the plaintiff could not, under
any circumstances, sufficiently allege its claims” (internal
quotation marks and citation omitted)).
Finally, given the defects that have, to date, been manifest in
each of Plaintiffs' pleadings or proposed pleadings, I further
recommend that Plaintiffs and their counsel be strongly
cautioned by the Court that, if they choose to proceed with
a further amendment, (1) they take care to plead the claims
of the Church and of Holmes individually, with allegations
that show a basis for each claim, as to the plaintiff asserting
it, (2) they not name as a defendant any corporate entity
without a good faith basis for believing that the particular
entity engaged in any activity that constituted an actionable
wrong, and they provide each such defendant with notice of
its specific alleged wrongdoing, and (3) they plead all claims
falling within the ambit of Rule 9(b) with the particularity
necessary to satisfy that Rule's requirements, as described
herein.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend
that the Court:
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*27 (1) grant Allstate's motion to dismiss the Amended
Complaint (Dkt.18), with prejudice;
(2) deny Plaintiffs' cross-motion for leave to amend as
against Allstate (Dkt.33);
(3) grant Allstate's sanctions motion to the extent it
seeks Rule 11 sanctions against Plaintiffs' counsel, and
otherwise deny the motion (Dkt.27);
(4) deny Plaintiffs' motion for sanctions against Allstate
(Dkt.51);
(5) impose Rule 11 sanctions on Plaintiffs' counsel in the
manner set forth supra at 39–41;
(6) grant the Harris Defendants' motion to dismiss the
Amended Complaint (see Dkt. 55), without prejudice;
and
(7) afford Plaintiffs 30 days to file a Second Amended
Complaint that cures the pleading defects against the
Harris Defendants, as discussed herein.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from service of this Report to file written
objections. See alsoFed.R.Civ.P. 6. Such objections, and any
responses to objections, shall be filed with the Clerk of
Court, with courtesy copies delivered to the chambers of
the Honorable Laura T. Swain, United States Courthouse,
500 Pearl Street, Room 755, New York, New York 10007,
and to the chambers of the undersigned, United States
Courthouse, 500 Pearl Street, Room 525, New York, New
York, 10007. Any requests for an extension of time for
filing objections must be directed to Judge Swain. FAILURE
TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS
WILL RESULT IN A WAIVER OF OBJECTIONS AND
WILL PRECLUDE APPELLATE REVIEW. See Thomas v.
Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);
IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d 1049,
1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300
(2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d
Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–38 (2d
Cir.1983).
All Citations
Not Reported in F.Supp.2d, 2012 WL 627238
Footnotes
1 The Harris Entities include: Bluebox Entertainment, Inc. (“Bluebox”), Harris Financial, Inc. (“HF”), Harris
Financial Insurance, Inc. (“HFI”), B.M. Harris, Inc. (“BMH”), First One Distributors, Inc. (“First”), Associate
Management LLC (“Associate”), I Am Global Ent. LLC, a/k/a Attracknaphobia, LLC (“IAGE”), and Harris
Financial Insurance Services, Inc. (“HFIS”).
2 The Harris Defendants never actually filed a “motion” to dismiss the Amended Complaint; rather, they only
filed a memorandum, with two attached declarations, in support of such a motion. The Court's Docket Clerk
advised counsel that a memorandum and declarations in support of a motion should not be filed until a
formal “motion” had been filed (see Docket entries following Dkt. 56), but it does not appear that counsel
ever complied with the Court's rules. Nonetheless, given the nature of the arguments raised by the Harris
Defendants in their submission, which relate to the adequacy of Plaintiffs' pleading, this Court has determined
that it would be in the interest of effective case management to deem that submission a motion and to consider
it as such.
3 The Amended Complaint predominately refers to “plaintiffs,” without distinguishing between Samuel's Temple
and Holmes. (See generally Am. Compl.) Similarly, throughout the Amended Complaint, Plaintiffs refer
generally to actions of the “defendants,” without differentiating among Allstate, Harris, or any of the Harris
Entities. (See generally id.)
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4 Plaintiffs generally allege that they invested approximately $513,000 with Defendants (id. at 53), but the more
specific allegations concerning Plaintiffs' investments suggest a total of $543,000 (see id. at ¶¶ 56–58, 60
(alleging various wire transfers to Bluebox in amounts totaling $500,000); ¶ 61 (alleging cash investment of
$15,000); ¶ 55 (alleging downpayment of $28,000 for real estate)).
5 On or about August 17, 2006, Plaintiffs transferred approximately $80,000 to Bluebox; on or about August
21, 2006, Plaintiffs transferred approximately $50,000 to Bluebox; on or about September 12, 2006, plaintiffs
transferred approximately $320,000 to Bluebox; and on or about February 3, 2007, Plaintiffs transferred
approximately $50,000 to Bluebox. (See id. at ¶¶ 56–58, 60.)
6 The Court takes judicial notice of the fact that Walter Ronnie Sailor, Jr., was a Georgia state assemblyman
(not a member of the U.S. Congress), who left office after pleading guilty to federal wire fraud and money
laundering charges. See http://www.justice . gov/usao/gan/press/2008/06–17–08.pdf
7 At the initial case conference before this Court on July 26, 2011, the parties informed the Court that Holmes
was in possession of certain Allstate documents, which contained confidential information related to Allstate's
current or former policyholders (the “Allstate Documents”). According to Holmes' counsel, these documents
had been given to Holmes, years ago, by Harris. (See July 26, 2011 Rule 16 Conference Transcript, at 12,
Ex. D to Declaration of Elizabeth D. Schrero in Opposition to Plaintiffs' Motion for Sanctions Under Rule 11,
dated Oct. 17, 2011 (“10/17/11 Schrero Decl.”) (Dkt.57).) The Court directed Holmes to transfer the Allstate
Documents to Allstate's counsel, and directed Allstate to maintain these documents in its possession and
to preserve them for use as potential evidence in this case. (See Scheduling Order, dated Aug. 4, 2011
(Dkt.30).) At the following case conference on November 1, 2011, the document transfer having been made,
Allstate's counsel informed the Court that, among the transferred documents were certain documents in which
Allstate claimed no interest, and which appeared, on their face, to be documents, such as ledgers, related
to the operations of Harris's business(es). This Court directed Allstate to return that subset of the transferred
documents (the “Harris Documents”) to counsel for Holmes, and directed counsel for Holmes to maintain the
Harris Documents as “Attorneys Eyes Only.” This Court further directed counsel for Holmes either to deliver
copies of the Harris Documents to counsel for Harris or to make the documents available to Harris's counsel
for inspection and copying. (See Scheduling Order, dated Nov. 4, 2011 (Dkt.61).)
8 Through an apparent filing error, Plaintiffs' opposition memorandum was filed, in various parts, as Docket
entries 34, 36 and 38.
9 For example, the Amended Complaint alleges that “Plaintiffs and defendants agreed that plaintiff Holmes
would be Chief Executive Officer, Director of Music Production and Video Production, Musician, Webmaster,
Digital Music Engineer and Songwriter, of, for and with defendant Bluebox, while living in real estate
purchased with plaintiffs' capital ... plaintiff Church to benefit from potential profits of defendant Bluebox,
plaintiffs to be 51% stockholders of defendant Bluebox.” (Id. at ¶ 47.) It is difficult to understand how defendant
Allstate could have made such promises. As another example, Plaintiffs allege that “[i]n or about April, 2007
defendants told plaintiffs that defendants sold the mall that defendants' Forest Park, Georgia office was
located in .” (Id. at ¶ 67.) Construing the term “defendants” to include all of the Harris Entities, as well as
Allstate, would make little sense in this instance because defendants Bluebox, HF, HFI, BMH, First, Associate,
and IAGE are not alleged to have had any connection to an office in Forest Park, Georgia, nor does it seem
likely that these defendants or Allstate would have been involved in the alleged sale of the mall that contained
this office. (See id. ¶¶ 12–14.)
10 In this diversity action, plaintiff Holmes alleges that he is a New York resident, and Samuel's Temple also
appears to be located in New York. (See Am. Compl. at ¶¶ 2, 6, 7.) Defendant Harris is alleged to be a
resident of Georgia, and the Harris Entities allegedly have principal places of business, or are incorporated,
in Georgia. (See id. at ¶¶ 11, 12, 14, 23.) Defendant Allstate is alleged to have its principal place of business
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in Illinois. (See id. at ¶ 9.) The subject matter of the alleged contract(s) at issue was located in Georgia, and
the alleged promises seem to have been made while Harris was in his Georgia office. (See id. at ¶¶ 37, 38,
54, 79.) Although this could potentially raise choice of law issues, the parties' submissions all cite New York
case law. Such “implied consent ... is sufficient to establish choice of law.” Khubani v. Ionic White, Inc., No. 05
Civ. 3706(DC), 2008 U.S. Dist. LEXIS 30610, at *3 (S.D.N.Y. Apr. 3, 2008) (citing In re Tehran–Berkeley Civil
& Environmental Engineers, 888 F.2d 239, 242 (2d Cir.1989)); see also Global Switching Inc. v. Kasper, No.
CV–06–412 (CPS), 2006 U.S. Dist. LEXIS 44450, at *32 n. 10 (E.D.N.Y. June 29, 2006) (“In any event, where,
as here, the parties are silent about the choice of law question, the Court may apply the law of the forum .”)
(citing Michele Pommier Models v. Men Women N.Y. Model Mgmt., 14 F.Supp.2d 331, 336 (S.D.N.Y.1998)).
11 For example, it is nearly inconceivable that Allstate would have authorized the transfer to Holmes of a large
volume of Allstate documents containing confidential information of other policyholders, or that Allstate would
—or even could—have authorized the loan of Plaintiffs' funds to a state legislator or the promise of Holmes'
employment with Harris's entertainment company.
12 The Amended Complaint alleges, in fact, that a life insurance policy for Holmes and his children was issued
(id. at ¶ 82), although Plaintiffs do not make clear whether this policy was issued by Allstate or by another
carrier.
13 As the Amended Complaint is defective for the reasons stated herein, the Court need not address Allstate's
alternative arguments for dismissal.
14 For example, an email dated October 18, 2006, from Shane Moody, of Clayton Signs Inc., to “Ty” (presumably
Holmes), states, in part, “Here is the contract for the Allstate location.” (Id.) Yet Plaintiffs do not identify
Clayton Signs Inc., attach the referenced contract, or explain what it is. Another email, dated January 16,
2007, from Harris to “Ty Maximus” (presumably Holmes), states, “U are spending it before we make it you
just have to stop taking 25 to 30,000 a month out of the account and you can keep your inheritance! [Y]ou
need to stop and think! I will send over the reports!” (Id.) Yet another email, from “Ty Maximus,” to Harris,
which is embedded in an email dated June 12, 2008, states, “Hey Bryan, We are days away from ending this
nightmare ... We now have Jews involved in the purchase of the 125 st property ... Br[y]a[ ]n, I need $150.00
to get my Son back home. They are stuck in Columbia SC, with my over due serviced benz ...” (Id.)
15 The Court also notes that some of the documents in both Exhibits C and D appear to contain personal
identifying information, including financial account numbers and at least one taxpayer identification number.
It thus appears that Plaintiffs' counsel has violated Rule 5.2(a) of the Federal Rules of Civil Procedure by
filing these exhibits publicly, without appropriate redaction. By separate Order of January 23, 2011, this Court
has directed that these exhibits be placed under seal, pending their appropriate re-submission by Plaintiffs,
in accordance with the requirements of Rule 5.2.
16 To the extent Plaintiffs seek to amend their claims against the Harris Defendants, Plaintiffs' application is
addressed below.
17 “To ensure ... that fear of an award of attorneys' fees against them will not deter persons with colorable claims
from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both
clear evidence that the challenged actions are entirely without color, and are taken for reasons of harassment
or delay or for other improper purposes and a high degree of specificity in the factual findings of the lower
courts.” Eisemann v. Green, 204 F.3d at 396 (quoting Dow Chem. Pacific Ltd. v. Rascator Maritime S.A., 782
F.2d 329, 344 (2d Cir.1986) (emphasis added) (internal citations, quotation marks, and brackets omitted).
18 Allstate also points out the Court has previously sanctioned Suffin for violating its rules. See Dvorkin v.
New York–Presbyterian Hospital, 10 Civ. 3680(GBD)(AJP), 2011 WL 280801, at *4 (S.D.N.Y. Jan. 19, 2011)
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(affirming, although modifying, sanction imposed by magistrate judge for counsel's failure to bring his client
to a settlement conference, as directed by the Court) (cited in Allstate Mem., at n. 5).
19 See http://lawyers .law.cornell.edu/lawyer/eric–andrew–suffin–1327035.
20 But see Jeffreys v. Rossi, 275 F.Supp.2d 463, 480 (S.D.N.Y.2003) (finding that movant substantially complied
with Rule 11 procedural requirements by serving a “detailed letter,” with attached evidentiary support).
21 The Court notes that the arguments advanced by the Harris Defendants, with respect to whether Plaintiffs
have adequately pleaded the elements of their individual claims, appear to have been copied nearly verbatim
from Allstate's memorandum in support of its motion to dismiss. Compare Allstate Mtn.–To–Dismiss Mem.
at 4–7; 11–22, e.g., with Harris Defs. Mem., at 12–14; 14–23.
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LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 5891888
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrea LAPIETRA, Individually and as Power
of Attorney, and Deashon Tarver, Plaintiffs,
v.
CITY OF ALBANY POLICE
DEPARTMENT, et al., Defendants.
9:19-CV-1527 (TJM/TWD)
|
Signed 10/05/2020
Attorneys and Law Firms
ANDREA LaPIETRA, Plaintiff, pro se, 1030 Washington
Ave. #2, Albany, NY 12203.
DEASHON TARVER, Plaintiff, pro se, Monte Mario Motel,
Room 21, 947 New Loudon Road, Latham, NY 12110.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
I. INTRODUCTION
*1 This action was commenced by two pro se plaintiffs,
Deashon Tarver (“Tarver”) and Andrea LaPietra (“LaPietra”),
individually and “as Power of Attorney” for Tarver, pursuant
to 42 U.S.C. § 1983 (“Section 1983”). (Dkt. No. 1.) A
complete history of this action to date can be found in the
prior Decisions and Orders of this Court filed on January 15,
2020, February 26, 2020, and April 6, 2020. (See Dkt. Nos.
4, 11, 13.) The Court previously granted LaPietra's motion
to proceed in forma pauperis and dismissed any claims that
LaPietra asserted on behalf of Tarver. (Dkt. No. 4 at 4-5.)
The Court also directed Tarver to comply with the filing fee
requirements. Id.
On May 22, 2020, Tarver complied with the Court's directives
and submitted a motion to proceed in forma pauperis
(“IFP Application”). (Dkt. No. 20.) Upon review of Tarver's
IFP application, the Court finds that he has demonstrated
sufficient economic need. See 28 U.S.C. § 1915(a)(2).
Accordingly, the Court grants Tarver's IFP Application.
The Court shall now consider the sufficiency of the
allegations set forth in the Complaint in light of 28 U.S.C. §
1915(e) and 28 U.S.C. § 1915A. (Dkt. No. 1.) The Court will
also address Tarver's motion to appoint counsel (Dkt. No. 21)
and LaPietra's motion to appoint counsel (Dkt. No. 6), which
was previously held in abeyance. (See Dkt. No. 11.)
II. SUFFICIENCY OF THE COMPLAINT
A. Standard of Review
Having found that Plaintiffs meet the financial criteria for
commencing this action in forma pauperis, and because
Plaintiffs seek relief from an officer or employee of a
governmental entity, the Court must consider the sufficiency
of the allegations set forth in the Complaint in light of 28
U.S.C. §§ 1915(e) and 1915A. 1 Section 1915(e) of Title 28
of the United States Code directs that, when a plaintiff seeks
to proceed in forma pauperis, “the court shall dismiss the case
at any time if the court determines that – ... (B) the action ...
(i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). 2
*2 Similarly, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a
governmental entity” and must “identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the
complaint ... is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or ... seeks monetary relief
from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d
Cir. 1999) (per curiam) (noting that Section 1915A applies to
all actions brought by prisoners against government officials
even when plaintiff paid the filing fee).
Additionally, when reviewing a complaint, the Court may
also look to the Federal Rules of Civil Procedure (“Federal
Rules”). Rule 8 of the Federal Rules provides that a pleading
which sets forth a claim for relief shall contain, inter alia,
“a short and plain statement of the claim showing that the
pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The
purpose of Rule 8 “is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to
file a responsive answer, prepare an adequate defense and
determine whether the doctrine of res judicata is applicable.”
Hudson v. Artuz, No. 95 Civ. 4768, 1998 WL 832708, at *1
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(S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland
Bank, No. 95-CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y.
June 23, 1995) (other citations omitted)). 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 of the Federal Rules 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 v. Graphtex, 189
F.R.D. 54, 54 (N.D.N.Y. 1999) (quotation marks and citations
omitted).
A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555). Rule 8 of the Federal
Rules “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. Thus, a pleading that
contains only allegations which “are so vague as to fail to give
the defendants adequate notice of the claims against them” is
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009).
Where a pro se complaint fails to state a cause of action, the
court generally “should not dismiss 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.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and
internal quotation marks omitted). An opportunity to amend is
not required where “the problem with [the plaintiff's] causes
of action is substantive” such that “better pleading will not
cure it.” Id. (citation omitted).
B. Summary of the Complaint
*3 The incidents that form the foundation for the Complaint
occurred on December 14, 2016, and while Tarver was
confined at Albany County Correctional Facility (“Albany
County C.F.”). The Complaint totals 259 pages and is a
rambling, disjointed mix of conclusory allegations, that is, in
large part, comprised of excerpts that appear to have been
cut and pasted throughout the document from legal articles,
statutes, and cases. (Dkt. No. 1. 3 ) Named as defendants
are: City of Albany Police Department, Officer Jan Mika,
Officer Adam Iannacito, Albany County C.F., CO Burns,
Sgt. Remillard, Unknown Officers, Unknown Parole Officers,
Unknown Plain Clothes Officer, Unknown Sgt., Unknown
Correctional Officers, and Unknown Medical and Dental
Workers. The following facts are set forth as alleged by
Plaintiffs.
On December 14, 2016, Plaintiffs were at LaPietra's second-
floor apartment located at 1030 Washington Avenue, #2, in
Albany, New York. (Dkt. No. 1-1 at 5. 4 ) Tarver, identified
as LaPietra's “loved one” and boyfriend, was on parole
supervision. Id. LaPietra left “to pick something up” and
Tarver stayed at the apartment. Id. She left her apartment
keys with Tarver. Id. On the way back to the apartment,
LaPietra received a telephone call from her “case coordinator”
informing her that Albany police officers were outside her
apartment. Id.
When she returned to the apartment, Tarver “was sitting and
being detained, handcuffed in the back seat of a police vehicle
that was parked in front of the apartment.” Id. 5 Tarver was
“under arrest” but the police officers did not tell Tarver “what
he was under arrest for” and did not read him his “Miranda”
rights. Id. “They threatened that they were going to taser
him[.]” Id.
LaPietra states her “apartment was open and the police”
had been through the apartment and her personal belongings
including “paperwork pertaining to [her] health, government
paperwork, [her] garbage, and everything.” Id. at 5, 6.
LaPietra was also questioned by police officers and a sergeant.
Id. at 6. She stated Tarver did not live with her but admitted
he sometimes stayed overnight “with the permission of his
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PO.” Id. LaPietra was also asked other personal questions,
including “confidential” conditions of her residence program.
Id. at 6. “They” also questioned LaPietra about “some items
that were in the corner of the dining room” because “they
suspected that those items were stolen.” Id. at 7. Officer Jan
Mika said to LaPietra, “oh by the way some parole officers
were here earlier.” Id. at 8-9. She thought that was a “strange
comment to make at the time because it did not fit into the
context of what [they] were speaking about.” Id. at 9. 6
*4 LaPietra “was outside with the officers they asked [her] to
go sit in [her] car then another officer said no stand over here
to the side of the driveway.” Id. at 7. LaPietra states she was
“detained” and “questioned” for more than twenty-minutes
and her apartment was searched without a warrant. Id. at 7,
15-6.
During the course of Tarver's arrest, he was “pushed up
against a police vehicle, his earring was ripping out of his
ear ... the police then threated to use a Taser on him ...
and then put him on the ground.” Id. at 101. Tarver was
arrested without a warrant and charged with petty larceny.
Id. at 7. Tarver was “arraigned judicially for a misdemeanor”
and “maliciously prosecuted for a felony.” Id. at 11. Tarver
ultimately “took a plea deal.” Id. at 13.
The Complaint states that defendant “law enforcement
officers observed the illegal nature of the search and seizure
of the residence and willfully ignored it and participated.” Id.
at 10. Plaintiffs claim that “fellow officers had an opportunity
to intervene to prevent further harm and to report the
misconduct. Yet they failed to act or intervene.” Id. The
Complaint further claims the Sergeant of the Albany Police
Department “participated” in Tarver's arrest, was responsible
for the supervision of the defendant police officers, failed to
intervene and prevent the ongoing misconduct of the officers,
“which resulted in the arrest and prosecution” of Tarver. Id.
at 10-11. 7
Later that night, “they” took Tarver from the police station
to the emergency room at Albany Medical Center “because
he tried to hurt himself.” Id. at 92. Tarver's hands and feet
were shackled. Id. at 92-93. At the emergency room, Tarver
was denied his right civil rights to use the bathroom and
was subjected to excessive force. Id. Although Tarver was
permitted to use the bathroom at least once while at the
emergency room, which “went well,” when it “came time
for him to go to the bathroom again ... the police said
no.” Id. Tarver became “emotionally upset and swore” and
“stood up.” Id. “They tackled him to try and force him to
lay down onto the hospital bed.” Id. “Then they shot him
with Benadryl.” Id. “An officer in the process of tackling
him fractured his pinky finger. Then they turned around and
charged [Tarver] with Felony Assault on an Officer.” Id. But
Tarver had “no intention to either interfere with or assault an
officer nor did he assault the officer.” Id. The use of force
aggravated Tarver's preexisting “AC separation.” (Dkt. No.
1-1 at 5.)
Tarver was confined at Albany County C.F. from December
2016 until April 2018. During his confinement, Tarver did
not receive proper medical care for “an AC separation.” (Dkt.
No. 1-1 at 3-4, 85, 89.) Although x-rays were taken of
Tarver's shoulder, he was told by “a doctor” that, “[w]e
don't do surgery here.” Id. at 85, 126; Dkt. No. 1-6 at 27.
Tarver received no other treatment or care for his shoulder
complaints and his requests for an MRI and a visit with his
personal physician were denied. (Dkt. No. 1-1 at 136; Dkt.
No. 1-6 at 27.)
*5 During his confinement at Albany County C.F., Tarver,
who suffers from “Schizo Affective Disorder,” depression,
and PTSD, received seven different types of psychiatric
medicine that were not administered “as scheduled.” (Dkt.
No. 1-1 at 3, 124; Dkt. No. 1-6 at 73.) Tarver was not provided
with trauma therapy or a social worker. (Dkt. No. 1-1 at 136.)
From October 2017 until April 2018, Tarver was denied
adequate dental care for “extreme pain” that impacted his
daily activities. (Dkt. No. 1-1 at 4, 124; Dkt. No. 1-6 at
24.) Tarver submitted numerous medical call slips and waited
“months” to see a dentist. (Dkt. No. 1-1 at 124; Dkt. No.
1-6 at 22, 24.) When he finally saw a nurse in late October
2017, the nurse informed him that he would “see the dentist
in five days” and gave him Motrin for his pain. (Dkt. No.
1-1 at 126; Dkt. No. 1-6 at 22-23.) When Tarver saw the
dentist, he was told that there was an “issue with his wisdom
teeth and a filling in another tooth” but the dentist “did
nothing.” (Dkt. No. 1-1 at 126.) In November 2017, Tarver
was given Amoxycillin, however, the facility records do not
indicate that he suffered from decay or infection. Id. Tarver
continued to suffer from pain and was told, “we don't do root
canals here.” Id. at 24; Dkt. No. 1-1 at 126. As a result, Tarver
had a “tooth fall straight out of his mouth” while at Albany
County C.F. (Dkt. No. 1-1 at 126; Dkt. No. 1-6 at 6, 23.)
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Tarver also claims that his weight, blood sugar, and sleep
apnea were not properly monitored at the facility. (Dkt. No.
1-1 at 129; Dkt. No. 1-6 at 7, 27.)
On October 23, 2017, LaPietra wrote to Melanie Trimble
(“Trimble”) at the Capital Region ACLU, to complain
about Tarver's medical and dental care. (Dkt. No. 1-1 at
125.) Trimble relayed LaPietra's concerns to Michael Lyons
(“Lyons”), who was surprised that there was a dentist at
Albany County C.F. Id. LaPietra also called the Sheriff's
Office and spoke to Mr. Newman (“Newman”). Id. Newman
told LaPietra to speak with a sergeant or superintendent
during a visit with Tarver, but that the sergeant “can't do
anything.” Id. In December 2017, LaPietra wrote to the
Commission of Correction and Inspector General's office
to complain about Tarver's medical and dental care. Id. at
119-20. The Commission responded to Tarver and instructed
him to file a grievance. Id. at 126-27.
On March 9, 2018, Tarver received a letter from Prisoner
Legal Services “about his rights.” (Dkt. No. 1-1 at 4; Dkt.
No. 1-6 at 1, 25.) On March 13, 2018, one day after LaPietra
filed “papers for this case in the Supreme Court Clerk's
office,” Tarver was assaulted by defendant C.O. Burns. Id.
The assault occurred while another officer was performing
“a squat and cough” of Tarver in his cell. Id. Burns willfully
entered Tarver's cell “for the purposes of assault[.]” (Dkt. No.
1-1 at 148-52; Dkt. No. 1-6 at 25-26.) Burns told Tarver that
he was not “coughing properly,” pushed him onto the bed,
punched him in the face, and sprayed him with mace. Id.
At the time of the assault, Tarver was naked and in a squat
position, with his back facing the officers. Id. Defendant Sgt.
Remillard was present during the assault and did not intervene
on Tarver's behalf. Id. Tarver was taken to the nurse so that
his eyes could be flushed. (Dkt. No. 1-1 at 148-152; Dkt. No.
1-6 at 25-26.) As a result of being sprayed with mace, his face
was swollen and his eyes were “red and bloodshot.” (Dkt. No.
1-6 at 25-26.)
*6 After the incident, Tarver was placed in “lockdown”
without any writing utensils, legal materials, or mail. (Dkt.
No. 1-1 at 129, 143; Dkt. No. 1-6 at 26-27.) The “charges”
surrounding his lockdown were not properly or timely
presented to him, he was not provided with an assistant related
to the disciplinary charges, and he was terminated from his
job. (Dkt. No. 1-1 at 164-66; Dkt. No. 1-6 at 26-27.) Tarver's
property, including letters and books, were confiscated. (Dkt.
No. 1-1 at 174, 178.) Tarver was also denied any outdoor or
recreational time. Id. at 168.
In March 2018, LaPietra visited Tarver. (Dkt. No. 1-1 at 156.)
At that time, Burns was “laughing” about the assault and told
LaPietra that Tarver was a “bad boy,” who hadn't coughed for
him. Id. LaPietra telephoned the Commission of Corrections
to report the assault and mailed a letter on April 2, 2018, to
officially complain about the assault, Tarver's inability to file
grievances, and mail tampering. Id. at 162.
On May 3, 2018, LaPietra called the Commission of
Corrections, spoke to Debbie Clark (“Clark”) and reported the
March 2018 assault. Id. at 179. Clark would not share any
information with LaPietra. Id.
During his confinement at Albany County C.F., Tarver was
“blocked from and denied grievance[s]” related to medical
and dental care and “solitary confinement in relation to his
assault.” (Dkt. No. 1 at 2; Dkt. No. 1-1 at 127-128, 141
150; Dkt. No. 1-6 at 27.) The facility also “interfered” with
his legal mail. (Dkt. No. 1-1 at 123-24, 144.) For example,
Tarver sent a letter to “Judge Keefe,” a “consultant” with the
Center for Law and Justice. Id. Tarver marked the envelope
“Attorney Mail” and placed an address on it. Id. at 122-23.
The mail did not reach the intended recipient and “may have
affected his rights to bring a claim against the municipality
in a timely manner.” Id. at 123-24. Tarver was released
from “solitary” in April 2018 and transferred to Downstate
Correctional Facility, shortly thereafter. Id. at 129.
LaPietra alleges that Albany County C.F. would not allow
her to wear “a Native American necklace into the facility”
in violation of her First Amendment rights. (Dkt. No. 1-1 at
190-193.)
Construing the Complaint liberally, Tarver asserts the
following: (1) Fourth Amendment claims for unreasonable
search and seizure, false arrest, excessive force, and malicious
prosecution; (2) Fourteenth Amendment claims for excessive
force, failure-to-protect, and conditions of confinement;
(3) First Amendment retaliation claims; (5) Fourteenth
Amendment claims related to his medical and dental care;
(6) Fourteenth Amendment due process claims; (7) First
Amendment access to court and mail interference claims;
(8) constitutional claims related to the grievance process; (9)
Fourteenth Amendment equal protection claims; (10) Sixth
Amendment claims related to the right to counsel; (11) state
law claims; and (12) claims pursuant to the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (See
Dkt. No. 1-1 at 5, 10, 11, 17, 88, 96, 97, 102, 105, 113,
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127, 128, 146, 152; 164, 172, 182; Dkt. No. 1-6 at 21-27.)
LaPietra asserts the following: (1) Fourth Amendment claims
for unreasonable search and seizure and false arrest; (2) state
law claims; and (3) First Amendment freedom of religion
claim. (See Dkt. No. 1-1 at 5, 10, 11, 17, 88, 190-193.)
Plaintiffs seek unspecified injunctive relief, monetary
damages, and an order allowing them to file a late notice of
claim in state court. (Dkt. No. 1 at 6; Dkt. No. 1-1 at 3, 184-85,
1-6 at 1-2. 8 ) For a more complete statement of Plaintiffs’
claims, reference is made to the Complaint.
C. Nature of Action
*7 Plaintiffs seek relief pursuant to Section 1983, which
establishes a cause of action for “ ‘the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws’ of the United States.” Wilder v. Virginia Hosp.
Ass'n, 496 U.S. 498, 508 (1990)); see also Myers v. Wollowitz,
No. 95-CV-0272 (TJM), 1995 WL 236245, at *2 (N.D.N.Y.
Apr. 10, 1995) (finding that “[Section] 1983 is the vehicle by
which individuals may seek redress for alleged violations of
their constitutional rights”). “Section 1983 itself creates no
substantive rights, [but] ... only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993). Thus, to state a cognizable
claim under Section 1983, a complaint must allege “(1) ‘that
some person has deprived [the plaintiff] of a federal right,’
and (2) ‘that the person who has deprived [the plaintiff] of
that right acted under color of state law.’ ” Velez v. Levy, 401
F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S.
635, 640 (1980)) (alteration omitted).
The Court will construe the allegations in the Complaint with
the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520
(1972) (holding that a pro se litigant's complaint is to be held
“to less stringent standards than formal pleadings drafted by
lawyers”).
III. ANALYSIS
A. City of Albany Police Department
The caption of the Complaint lists the City of Albany Police
Department as a defendant. (Dkt. No. 1 at 1.) “[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.”
Davis v. Lynbrook Police Dep't, 224 F. Supp. 2d 463, 477
(E.D.N.Y. 2002) (dismissing § 1983 claim brought against the
Lynbrook Police Department); see also La Grande v. Town
of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH),
2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) (“Since
the Bethlehem Police Department cannot be sued pursuant to
42 U.S.C. § 1983, [the plaintiff's] [c]omplaint is dismissed
as against the Town of Bethlehem Police Department.”);
Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL
4052286, at *5 (N.D.N.Y. Sept. 13, 2012) (“Because the
Syracuse Police Department is merely an administrative arm
of the City of Syracuse, it is not a proper defendant.”).
However, in deference to Plaintiffs’ pro se status, the Court
will construe Plaintiffs’ claims as if they had been brought
against the City of Albany, the real party in interest. See Solis
v. Cty. of Westchester, No. 94-CV-5102, 1995 WL 14072,
at *1 (S.D.N.Y. Jan. 10, 1995) (noting that the Westchester
County Department of Corrections is not a legal entity and
that the County of Westchester is the real party in interest).
Pursuant to the standard for establishing municipality liability
laid out in Monell v. Dep't of Soc. Servs. of the City of New
York, 436 U.S. 658 (1978), 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 East 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.”) 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) (plurality opinion).
*8 Here, Plaintiffs have failed to identify or allege
any facts plausibly showing the existence of a municipal
policy or custom of the City of Albany authorizing,
permitting, allowing, or tolerating “abuses in violation of
the Constitution” including unreasonable search and seizure,
false arrest, and excessive force incidents or any affirmative
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link between such a policy and defendants’ alleged actions
with regard to Plaintiffs. (See generally Dkt. No. 1.)
Furthermore, Plaintiffs’ conclusory allegations that the City
of Albany failed to train and supervise defendants, see id.,
without supporting factual allegations, fails to state a Monell
claim against the City of Albany that is plausible on its face.
See 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.”).
Based upon the foregoing, the Court recommends that
Plaintiffs’ claims under 42 U.S.C. § 1983 against City
of Albany Police Department be dismissed with prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b).
Moreover, notwithstanding a very liberal interpretation of
the Complaint, to the extent that Plaintiffs’ claims could be
construed to be asserted against the City of Albany, as the
real party in interest, it is recommended that the claims be
dismissed without prejudice and with leave to amend pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for
failure to state a claim upon which relief may be granted.
B. Officer Jan Mika
“It is well settled that, in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff
must show, inter alia, the defendant's personal involvement in
the alleged constitutional deprivation.” Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013). Thus, “a Section
1983 plaintiff must ‘allege a tangible connection between the
acts of the defendant and the injuries suffered.’ ” Austin v.
Pappas, No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y.
Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263
(2d Cir. 1986)) (other citation omitted).
Here, the Complaint states that Officer Jan Mika asked
LaPietra questions on December 14, 2016, such as her “name,
address, date of birth, etc.” and also told her, “Oh by the
way parole officers were here earlier.” (Dkt. No. 1-1 at 10,
46.) However, Plaintiffs do not plead any facts sufficient to
plausibly suggest that this defendant was personally involved
in any conduct that violated either of Plaintiffs’ constitutional
rights and, therefore, the Complaint fails to state a cognizable
claim against this defendant. See Cipriani v. Buffardi, No.
06-CV-0889 (GTS/DRH), 2007 WL 607341, *1 (N.D.N.Y.
Feb. 20, 2007) (“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.”) (citation
omitted).
Accordingly, it is recommended that Plaintiffs’ claims against
Officer Jan Mika be dismissed without prejudice and with
leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.
C. Unknown Officers, Unknown Parole Officers,
Unknown Plain Clothes Officer, Unknown Sgt.
Separate from the substantive personal involvement
requirement, discussed above, is a pleading requirement that,
to adequately state a claim, a plaintiff's complaint must
“differentiate which defendant[s] w[ere] involved in [what]
unlawful conduct.” Ying Li v. City of New York, No. 15-
CV-1599, 2017 WL 1208422, at *6 (E.D.N.Y. Mar. 31, 2017);
see also Wright v. Orleans Cty., No. 14-CV-622, 2015 WL
5316410, at *13 (W.D.N.Y. Sept. 10, 2015) (noting in a § 1983
case that “[g]roup pleading is insufficient for purposes of Rule
8(a)(2), which requires a short and plain statement of the
claim showing that the pleader is entitled to relief” (citation
and quotation marks omitted)); Holmes v. Allstate Corp., No.
11-CV-1543, 2012 WL 627238, at *7, *22 (S.D.N.Y. Jan. 27,
2012) (“Rule 8(a) is violated where a plaintiff, by engaging
in ‘group pleading,’ fails to give each defendant fair notice of
the claims against it.”).
*9 To satisfy the personal involvement requirement and
the rule against group pleading, it is not necessary for a
plaintiff to know the name of the defendant. Where a plaintiff
does not know the name of a defendant, the plaintiff may
identify the defendant in the pleading as John or Jane Doe.
However, the pleading must still satisfy the rules governing
personal involvement and group pleading as to the John
or Jane Doe defendant. See Little v. Mun. Corp., 51 F.
Supp. 3d 473, 493-94 (S.D.N.Y. 2014) (dismissing without
prejudice excessive force claim asserted against “members of
the ‘Special Search Team’ and ‘ESU Officers’ ” and noting
that, “[t]o the extent that [plaintiff] does not know the names
of the members of the Special Search Team or ESU Officers
involved, he may name ‘John Doe’ defendants and include
as much identifying information as he has knowledge of,
for the purpose of filing an amended complaint, should [he]
chose to do so”); Williams v. 120 PCT Undercover, No. 11-
CV-4690, 2011 WL 13128209, at *1 (E.D.N.Y. Oct. 18, 2011)
(dismissing complaint without prejudice where plaintiff's
claims provided information about the alleged constitutional
deprivations, but were brought against “the 120 Precinct and
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District 9, a police precinct and district of the New York City
Police Department”).
Here, Plaintiffs simply list different groups of unidentified
defendants in the caption of the Complaint and generally
allege that on December 16, 2014, their Fourth Amendment
constitutional rights were violated. The use of the terms
“they,” or “the police” or “officer” as a name for alleged
defendants is not adequate to state a claim against a “person”
as required in § 1983 actions. See Williams, 2011 WL
13128209, at *1 (dismissing complaint with leave to amend
where the “[p]laintiff alleges that unnamed undercover police
officers used excessive force against him and caused him to
sustain injuries on August 26, 2008 but does not identify any
particular defendants.”). 9
Moreover, if the defendant is a supervisory official, 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. Polk Cty. v. Dodson, 454 U.S. 312,
325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.
2003). In other words, supervisory officials may not be held
liable merely because they held a position of authority. Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Rather, supervisory
officials may be considered “personally involved” if they (1)
directly participated in the violation; (2) failed to remedy that
violation after learning of it through a report or appeal; (3)
created, or allowed to continue, a policy or custom under
which the violation occurred; (4) had been grossly negligent
in managing subordinates who caused the violation; or (5)
exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that the violation was
occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Based on the foregoing, the Court finds Plaintiffs have
failed to adequately plead that any individual defendant
was personally involved in any alleged wrongdoing on
December 14, 2016, and has contravened the rule against
group pleading. Therefore, the Court recommends dismissing
Plaintiffs’ claims against these “Unknown” defendants
without prejudice and with leave to amend pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim upon which relief may be granted. 10
D. Officer Adam Iannacito
*10 Tarver claims Iannacito used “excessive force on” him
on December 14, 2016, in the Emergency Room by, inter alia,
by “tackling” Tarver while he was restrained in shackles and
prevented him from using the bathroom in violation of his
constitutional rights, “which worsened [Tarver's] injury from
a prior workplace assault, which was an AC separation.” (Dkt.
No. 1-1 at 96-113, Dkt. No. 1-6 at 5-6, 20-21.) It appears that
during the assault, Iannacito fractured a finger and thereafter
“maliciously prosecuted [Tarver] with felony assault on an
officer.” Id.
To the extent Tarver asserts these claims under Section
1983, such claims are time-barred. Although the statute of
limitations is an affirmative defense, where it is clear from the
face of the complaint that a claim is barred by the applicable
statute of limitations, the claim is subject to dismissal for
failure to state a claim on initial review. See Pino v. Ryan,
49 F.3d 51, 53 (2d Cir. 1995) (holding that a complaint
can be dismissed on initial review based on a defense that
appears on the face of the complaint). The applicable statute
of limitations for a Section 1983 action is governed by “the
law of the state in which the cause of action arose.” Wallace
v. Kato, 549 U.S. 384, 387 (2007). In New York, the general
statute of limitations for personal injury claims is three years.
See N.Y. C.P.L.R. § 214(5).
Here, Tarver executed the Complaint on February 6, 2020.
(See Dkt. No. 7.) The alleged assault and deprivations by
Iannacito at the Emergency Room occurred on December
16, 2016. Accordingly, Tarver's Section 1983 claims against
Iannacito are barred by the applicable statute of limitations.
To the extent these claims are asserted under New York law,
claims for intentional torts, such as assault and battery, and
intentional infliction of emotional distress, are governed by
a one-year statute of limitations. N.Y. C.P.L.R. § 215(3);
see also Ashjari v. Nynex Corp., 182 F.3d 898 (2d Cir.
1999) (“Under N.Y. C.P.L.R. § 215(3), claims of assault and
battery ... must be brought within one year from the date the
claim accrued.”); see also Forbes v. Merrill Lynch, Fenner &
Smith, Inc., 957 F. Supp. 450, 455 (S.D.N.Y. 1997) (“It is well
established under New York law that a claim of intentional
infliction of emotional distress has a one–year statute of
limitations.”). Accordingly, Tarver's claims against Iannacito,
asserted under state law, are also barred by the applicable
statute of limitations.
Therefore, the Court recommends dismissing Tarver's claims
against Officer Adam Iannacito without prejudice and with
leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii) and
1915A(b)(1). Because a district court typically should not
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dismiss a claim as time-barred without providing a pro se
plaintiff with “notice and opportunity to be heard” as to
whether there might be a meritorious tolling argument or
other reason why the complaint might be considered, if
Tarver files an amended pleading with claims asserted against
this defendant arising from the alleged December 14, 2016,
incidents, he should address the issue of timeliness. See Abbas
v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007).
E. Albany County C.F.
The caption of the Complaint lists Albany County C.F. as a
defendant. (Dkt. No. 1.) However, as set forth above, because
the Albany County C.F. is an administrative arm of Albany
County, without a legal identity separate and apart from the
County, it lacks the capacity to be sued. See Part III.A., supra.;
see also Lukes v. Nassau Cty. Jail, No. 12-CV-1139, 2012
WL 1965663, at *2 (E.D.N.Y. May 29, 2012) (dismissing
claims against defendant Nassau County Jail because it “is
an administrative arm of Nassau County, without a legal
identity separate and apart from the County”); see Solis v.
Cty. of Westchester, No. 94-CV-5102, 1995 WL 14072, at *1
(S.D.N.Y. Jan. 10,1995) (noting that the Westchester County
Department of Corrections is not a legal entity and that the
County of Westchester is the real party in interest);
*11 Based upon the foregoing, the Court recommends that
Plaintiffs’ claims under 42 U.S.C. § 1983 against Albany
County C.F. be dismissed with prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
Nevertheless, in deference to Plaintiffs’ pro se status, the
Court will construe Plaintiffs’ claims as if they had been
brought against Albany County, the real party in interest.
See Shabazz v. Johnson City Police Dep't, No. 3:18-CV-0570
(MAD/DEP), 2018 WL 5660406, at * (June 21, 2018)
(reviewing complaint against the real party in interest).
As discussed above, municipal liability is limited under
Section 1983 by Monell. See Part III.A., supra.
Here, with one minor exception discussed below, Plaintiffs
have failed to identify or allege any facts plausibly showing
the existence of a municipal policy or custom of Albany
County authorizing, permitting, allowing, or tolerating
“abuses in violation of the Constitution” including deliberate
medical indifference and excessive force incidents or any
affirmative link between such a policy and any defendants’
alleged actions with regard to Tarver. See Dkt. No. 1-1 at
146-147. See Missel v. Cty. of Monroe, 351 F. App'x 543,
545 (2d Cir. 2009) (Monell claim requires “factual allegations
that would support a plausible inference that the County[ ]’s
‘policies’ or ‘customs’ caused ... violations ... of rights.”).
Furthermore, Plaintiffs’ conclusory allegations that Albany
County failed to train and supervise defendants, see id.,
without supporting factual allegations, fails to state a Monell
claim against Albany County that is plausible on its face. See
Tuttle, 471 U.S. at 824 n.8.
The Complaint states that “[t]he Albany County [C.F.] refused
to allow [LaPietra] to wear a Native American necklace into
the facility at a visitation stating that it is not a religion
recognized by the United States government and that it had to
be a religion like Christianity or the Muslim religion. This is
a First Amendment rights violation. It is also inherently false
that it is not a form of religion recognized by the United States
government because the United States recognizes Natives
through the American Indian Religious Freedom Act.” (Dkt.
No. 1-1 at 190.) Mindful of the Second Circuit's direction
that a pro se plaintiff's pleadings must be liberally construed,
see Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191
(2d Cir. 2008), LaPietra has sufficiently plead, albeit thinly,
a cognizable claim regarding the aforementioned policy at
Albany County C.F.
Accordingly, based upon a very liberal interpretation of the
Complaint, to the extent that Plaintiffs’ claims could be
construed to be asserted against Albany County as the real
party in interest, it is recommended that only LaPietra's First
Amendment Monell claim survives initial review and requires
a response and that all other claims be dismissed without
prejudice and with leave to amend pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted. The Court expresses
no opinion as to whether LaPietra's First Amendment Monell
claim can withstand a properly filed motion to dismiss or for
summary judgment.
F. Fourteenth Amendment Excessive Force and
Failure-to-Protect Claims Against Burns and
Remillard
*12 Tarver contends Burns assaulted him and that Remillard
failed to intervene to protect him from harm at Albany
County C.F. in March 2018. See generally Dkt. No. 1-1.
In the context of excessive force and failure-to-protect
claims asserted by pretrial detainees, the Supreme Court
distinguished between Eighth and Fourteenth Amendment
claims in holding that a pretrial detainee alleging that an
officer used excessive force against him in violation of
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the Fourteenth Amendment need not demonstrate that such
officer was subjectively aware that his use of force was
unreasonable. See Kingsley v. Hendrickson, 576 U.S. 389
(2015); see also Francis v. City of New York, No. 17-
CIV-1453, 2018 WL 4659478, at *4 (S.D.N.Y. Aug. 21,
2018) (applying Kingsley to failure-to-protect claim). 11 “[A]
pretrial detainee must only show that the force purposely or
knowingly used against him was objectively unreasonable
to prevail on an excessive force claim.” Kingsley, 576 U.S.
at 397. “[I]f the use of force is deliberate – i.e., purposeful
and knowing – the pretrial detainee's claim may proceed.”
Id. Courts consider a number of factors when determining
objective reasonableness, including:
the relationship between the need for
the use of force and the amount of
force used; the extent of the plaintiff's
injury; any effort made by the officer to
temper or to limit the amount of force;
the severity of the security problem at
issue; the threat reasonably perceived
by the officer; and whether the plaintiff
was actively resisting.
Id.
Mindful of the Second Circuit's direction that a pro se
plaintiff's pleadings must be liberally construed, see Sealed
Plaintiff, 537 F.3d at 191, Tarver has sufficiently plead
Fourteenth Amendment excessive force and failure-to-protect
claims against Burns and Remillard.
Therefore, the Court recommends that Tarver's Fourteenth
Amendment excessive force and failure-to-protect claims
against Burns and Remillard survive sua sponte review and
require a response. The Court expresses no opinion as to
whether these claims can withstand a properly filed motion to
dismiss or for summary judgment.
G. Assault and Battery Claims Against Burns
Tarver also asserts assault and battery claims against Burns.
To the extent that Tarver asserts these claims under Section
1983, it is duplicative of his excessive force claim and must
be dismissed for failure to state a claim upon which relief may
be granted. See Raymond v. Bunch, 136 F. Supp. 2d 71, 81
(N.D.N.Y. 2001). To the extent these claims are asserted under
New York law, as discussed above, claims for intentional
torts are governed by a one-year statute of limitations. N.Y.
C.P.L.R. § 215(3); see also Ashjari v. Nynex Corp., 182 F.3d
898 (2d Cir. 1999) (“Under N.Y. C.P.L.R. § 215(3), claims of
assault and battery ... must be brought within one year from
the date the claim accrued.”). As discussed above, although
the statute of limitations is an affirmative defense, where it
is clear from the face of the complaint that a claim is barred
by the applicable statute of limitations, the claim is subject
to dismissal for failure to state a claim on initial review. See
Pino, 49 F.3d at 53.
Here, Tarver executed the Complaint on February 6, 2020.
(See Dkt. No. 7.) The alleged assault by Burns occurred in
March 2018. Accordingly, Tarver's assault and battery claims,
asserted under state law, are barred by the applicable statute
of limitations.
Therefore, the Court recommends dismissing Tarver's assault
and battery claims with leave to amend pursuant to 28 U.S.C.
§§ 1915(e)(2)(ii) and 1915A(b)(1). Because a district court
typically should not dismiss a claim as time-barred without
providing a pro se plaintiff with “notice and opportunity
to be heard” as to whether there might be a meritorious
tolling argument or other reason why the complaint might
be considered, if Tarver files an amended pleading with a
claim for assault and battery, he should address the issue of
timeliness. See Abbas, 480 F.3d at 640.
H. First Amendment Retaliation Claims Against
Burns and Remillard
*13 Tarver claims that Burns and Remillard acted with
retaliatory intent when they assaulted him because he received
legal mail and filed a state court lawsuit. (See generally
Dkt. No. 1-1.) Retaliation claims find their roots in the First
Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81
(2d Cir. 2004). In a prison setting, prison officials may
not take actions that would have a chilling effect upon an
inmate's exercise of First Amendment rights. Id. at 381-83.
However, as the Second Circuit has repeatedly cautioned,
such claims are easily incanted and prone to abuse, as inmates
often attribute adverse actions to retaliatory animus. Dawes
v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on
other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002). Courts must therefore approach retaliation claims
with “skepticism and particular care.” Id. Accordingly, claims
of retaliation must be supported by specific facts; conclusory
statements are not sufficient. Flaherty v. Coughlin, 713
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F.2d 10, 13 (2d Cir. 1983), overruled on other grounds by
Swierkiewicz, 534 U.S. at 506.
To establish a prima facie First Amendment retaliation claim,
the plaintiff must establish “(1) that the speech or conduct at
issue was protected, (2) that the defendant took adverse action
against the plaintiff, and (3) that there was a causal connection
between the protected speech and the adverse action.” Gill,
389 F.3d at 380 (citing Dawes, 239 F.3d at 492).
The filing of lawsuits and grievances is protected conduct for
purposes of First Amendment retaliation claims. See Colon
v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Graham v.
Henderson, 89 F.3d 75, 80 (2d Cir. 1996). Therefore, the
allegations in the Complaint plausibly suggest that Tarver was
engaged in protected conduct. Moreover, the alleged assault
constituted an “adverse action” against Tarver that would
deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights. See Rivera v.
Goord, 119 F. Supp. 2d 327, 339-340 (S.D.N.Y. 2000).
An inmate bears the burden of showing “the protected
conduct was a substantial or motivating factor” in the
defendant's decision to take action against the plaintiff.
Graham, 89 F.3d at 79. In evaluating whether a causal
connection exists between the plaintiff's protected activity
and a prison official's actions, “a number of factors may be
considered, including: (i) the temporal proximity between
the protected activity and the alleged retaliatory act; (ii)
the inmate's prior good disciplinary record; (iii) vindication
at a hearing on the matter; and (iv) statements by the
defendant concerning his motivation.” Baskerville v. Blot,
224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon, 58
F.3d at 872-73). “The causal connection must be sufficient
to support an inference that the protected conduct played
a substantial part in the adverse action.” Id. A showing of
temporal proximity, without more, has generally been found
insufficient to survive summary judgment. See Roseboro v.
Gillespie, 791 F. Supp. 2d 353, 370 (S.D.N.Y. 2011) (citations
omitted).
Here, Tarver has not adequately stated a claim for retaliation
against Burns and Remillard because he has not alleged facts
to suggest that they were aware Tarver received a letter from
Prisoner Legal Services or that LaPietra filed a lawsuit in state
court. Moreover, there is no allegation that Burns or Remillard
were defendants in that lawsuit. As a result, Tarver has failed
to allege plausibly that the lawsuit was causally connected to
Burns’ or Remillard's allegedly adverse actions. See Wilson v.
Kelly, No. 9:11-CV-00030 (MAD/RFT), 2012 WL 3704996,
at *9 (N.D.N.Y. Aug. 27, 2012) (claim dismissed due to
failure by plaintiff to allege plausibly that protected activity
was causally connected to any alleged adverse action taken
by the defendant where plaintiff failed to allege that the
defendant was aware of the protected activity).
*14 Therefore, the Court recommends that Tarver's
retaliation claims against Burns and Remillard be dismissed
with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii)
and 1915A(b)(1).
I. ADA Claims 12
Tarver claims that, as a prisoner with a mental illness, he
was entitled to modifications of his conditions of confinement
in the SHU. (Dkt. No. 1-1 at 170.) Title II of the ADA
provides, in pertinent part, 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.” 42 U.S.C. § 12132. The
ADA is applicable to inmates in state correctional facilities.
See Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 213
(1998). “Under Title II of the ADA ... prison officials may
not discriminate against inmates on the basis of disability
in administering work programs.” Harrington v. Vadlamudi,
No. 9:13-CV-795 (BKS/RFT), 2015 WL 4460994, at *3
(N.D.N.Y. July 21, 2015) (citations omitted). To successfully
plead a Title II claim, “[t]he inmate must establish that he
(1) is a qualified individual with a disability; (2) is being
excluded from participation in, or being denied benefits of
some service, program or activity by reason of his or her
disability; and (3) the entity providing the service is a public
entity.” Allah v. Goord, 405 F.Supp.2d 265, 274 (S.D.N.Y.
2005).
Here, the Complaint does not clearly indicate who Tarver is
suing for violations of his rights under the ADA and what
relief, if any, he seeks with respect to that claim. Assuming
Tarver asserts this claim against individual officers, he has not
indicated whether those officers are sued in their individual
capacity, official capacity, or both. (See generally Dkt. No. 1.)
To the extent that Tarver seeks monetary damages against any
defendant, in his or her individual capacity, the Second Circuit
has held Title II of the ADA does not provide for individual
capacity suits for monetary damages. See Garcia v. S.U.N.Y.
Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir.
2001). While individuals may be sued under the ADA in their
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official capacities, a plaintiff must plead that the defendant
“was motivated by discriminatory animus or ill-will based on
the plaintiff's disability.” See Keitt v. New York City, 882 F.
Supp. 2d 412, 455-57 (S.D.N.Y. 2011) (holding that under
Garcia, claims for money damages against state officials in
their official capacities under Title II of the ADA are barred by
the Eleventh Amendment, absent a showing that a violation
was motivated by discriminatory animus or ill will due to the
disability) (citing Garcia, 280 F.3d at 112).
Even assuming Tarver was disabled under the ADA, the
Complaint fails to state a viable cause of action against
any individual defendant because Tarver does not allege
facts to plausibly suggest that any defendant discriminated
against him. See Wenger v. New York State Dep't of Health,
No. 5:14-CV-885 (DNH/TWD), 2015 WL 3397958, at *5
(N.D.N.Y. May 26, 2015) (dismissing the discrimination
claim under ADA where the complaint “provide[d] few
specifics regarding [the plaintiff's] care, the services of which
he was allegedly deprived, or programs in which he was
allegedly not allowed to participate, or any reasons therefor
articulated by [the defendants”).
*15 Although “Title II [...] suits for prospective injunctive
relief may ... proceed against individual officers in their
official capacity,” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009), an inmate's request for injunctive relief becomes moot
when the inmate is released from custody. See Roque v.
Armstrong, 392 F. Supp. 2d 382, 386-87 (D. Conn. 2005)
(finding that the plaintiff's request for injunctive relief under
the ADA for the provision of medical care became moot when
he was discharged from prison) (citations omitted); see also
McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999)
(noting that an inmate's claim for prospective injunctive relief
regarding conditions of confinement is rendered moot upon
his release from confinement). In April 2020, Tarver notified
the Court that he was no longer incarcerated. (See Dkt. No.
15.)
Accordingly, the Court recommends dismissing Tarver's
ADA claims for monetary damages and injunctive relief for
failure to state a claim upon which relief may be granted.
J. Remaining Claims
The remaining constitutional and state law claims are asserted
by Tarver against “Unknown Corrections Officers,” and
“Unknown Medical and Dental Workers.” (See Dkt. No. 1 at
1; Dkt. No. 1-1 at 1.)
The Complaint fails to identify any corrections officers or
medical personnel involved in Tarver's medical treatment,
dental treatment, the decision to confine Tarver to keeplock,
decisions related to Tarver's mail or property, decisions
related to grievances or visitors at the facility, or any of other
remaining alleged constitutional violations. As previously
discussed, the use of the terms, “they,” “corrections officers,”
“medical and dental workers,” or “all facility employees”
as a name for alleged defendants is not adequate to state a
claim against a “person” as required in Section 1983 actions.
See Part.III.C., supra.; see also Ferguson, 1991 WL 115759,
at *1 (“The allegations plaintiff makes against the Otisville
Correctional Facility Medical Staff are not sufficient to state
a cause of action.”). Moreover, the Court notes that while
the Complaint includes a plethora of constitutional claims
arising from Tarver's confinement at Albany County C.F.,
the pleading lacks any specificity related to those claims
including dates, times, and locations of the alleged violations.
Because the Complaint fail to identify any individuals
personally involved in the remaining alleged constitutional
violations and state law claims, the Court recommends
dismissing the remaining claims without prejudice and with
leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted. See Martin v. UConn Health Care, No.
3:99-CV-2158, 2000 WL 303262, at *1 (D. Conn. Feb. 9,
2000) (giving the plaintiff leave to file an amended complaint
“provided he can identify at least one physician or other
health care provider who has been deliberately indifferent
to his medical needs”) (citing Soto v. Brooklyn Correctional
Facility, 80 F.3d 34 (2d Cir. 1996) (permitting plaintiff to file
amended complaint where inmate named only correctional
facility and was not aware of the requirement that he name
individuals)). 13
IV. MOTIONS TO APPOINT COUNSEL
*16 It is well-settled that there is no right to appointment
of counsel in civil matters. Burgos v. Hopkins, 14 F.3d
787, 789 (2d Cir. 1994). Title 28 of United States Code
Section 1915 specifically provides that a court may request an
attorney to represent any person “unable to afford counsel.”
28 U.S.C. § 1915(e)(1). Appointment of counsel must be done
carefully in order to preserve the “precious commodity” of
volunteer lawyers for those litigants who truly need a lawyer's
assistance. Cooper v. A. Sargenti, Inc., 877 F.2d 170, 172-73
(2d Cir. 1989).
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In Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d
Cir. 1994), the Second Circuit reiterated the factors that
a court must consider in ruling upon such a motion. In
deciding whether to appoint counsel, the court should first
determine whether the indigent's position seems likely to be
of substance. If the claim meets this threshold requirement,
the court should then consider a number of other factors in
making its determination. See id. at 1341 (quoting Hodge v.
Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)); Sawma v.
Perales, 895 F.2d 91, 95 (2d Cir. 1990). Among these are
[t]he indigent's ability to investigate
the crucial facts, whether conflicting
evidence implicating the need for
cross-examination will be the major
proof presented to the fact finder, the
indigent's ability to present the case,
the complexity of the legal issues, and
any special reason ... why appointment
of counsel would be more likely to lead
to a just determination.
Hodge, 802 F.2d at 61. None of these factors are controlling,
however, and each case should be decided on its own facts. Id.
Here, the main facts upon which this Court may base its
decision as to whether this lawsuit is of substance are those
portions of Plaintiffs’ Complaint wherein they state the facts
surrounding their claims. Where a plaintiff does not provide
a Court with evidence, as opposed to mere allegations,
relating to his or her claims, such party does not meet the
first requirement imposed by the Second Circuit relative
to applications seeking appointment of pro bono counsel.
See Harmon v. Runyon, No. 96-CV-6080, 1997 WL 118379
(S.D.N.Y. Mar. 17, 1997).
Furthermore, even if the Court were to assume that this case
may be of substance, these claims do not present overly
complex issues. In addition, the record currently before the
Court indicates that Plaintiffs have an ability to investigate
pertinent facts and present the case. While it is possible,
should this case proceed to a trial, that there will be conflicting
evidence implicating the need for cross-examination, as is
the case in many actions brought by pro se litigants, “this
factor alone is not determinative of a motion for appointment
of counsel.” Velasquez v. O'Keefe, 899 F. Supp. 972, 974
(N.D.N.Y. 1995). Further, if this case proceeds to trial, it is
highly probable that this Court will appoint trial counsel at
the final pretrial conference. This Court is not aware of any
special reason why appointment of counsel at this time would
be more likely to lead to a just determination of this litigation.
For all of these reasons, the Court finds that appointment
of counsel is unwarranted and Plaintiffs’ motions are denied
without prejudice. (Dkt. Nos. 6, 21.) Plaintiffs may file
another motion for appointment of counsel in the event
that they can demonstrate that, in light of specific changed
circumstances, consideration of the above factors warrants
granting the application.
*17 WHEREFORE, it is hereby
ORDERED that Tarver's IFP Application (Dkt. No. 20) is
GRANTED; 14 and it is further
RECOMMENDED that Plaintiffs’ claims against City of
Albany Police Department and Albany County Corrections
Facility be DISMISSED WITH PREJUDICE pursuant to
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for
failure to state a claim upon which relief may be granted; and
it is further
RECOMMENDED that the Clerk be directed to revise the
docket sheet to ADD Albany County as a defendant in this
action; and it is further
RECOMMENDED that Tarver's Fourteenth Amendment
excessive force and failure-to-protect claims against C.O.
Burns and Sgt. Remillard SURVIVE initial review and
require a response; and it is further
RECOMMENDED that LaPietra's First Amendment Monell
claim against Albany County SURVIVES initial review and
requires a response; and it is further
RECOMMENDED that the remaining claims be
DISMISSED WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND 15 pursuant to 28 U.S.C. § 1915(e)(2)
(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon
which relief may be granted; 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
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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 same was served on 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 stricken from the docket.
Plaintiffs must comply with any 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. Plaintiffs are also
required to promptly notify the Clerk's Office and all
parties or their counsel, in writing, of any change in his
or her address; their failure to do so may result in the
dismissal of the action; and it is further
*18 ORDERED that Plaintiffs’ motions for counsel (Dkt.
Nos. 6, 21) are DENIED WITHOUT PREJUDICE; and it
is further
ORDERED that the Clerk of the Court shall serve a copy of
this Report-Recommendation and Order on Plaintiffs, along
with copies of the unpublished decisions cited herein in
accordance with the Second Circuit's decision in Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections to
the foregoing report. 16 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, 87 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72, 6(a).
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 5891888
Footnotes
1 Tarver was incarcerated at Mid-State Correctional Facility at the time the action was commenced. See http://
nysdoccslookup.doccs.ny.gov (DIN 18A1582) (last visited Sept. 27, 2020). Therefore, 28 U.S.C. § 1915A is
applicable. See Rogers v. New York City Police Dep't, No. 12 CV 3042, 2012 WL 4863161, at *1 n.3 (E.D.N.Y.
Oct. 12, 2012) (a plaintiff who has been released from incarceration is still considered a prisoner under §
1915A if he was imprisoned at the time the action was commenced); see also Brown v. Jacobson, No. 98 Civ.
0565, 1999 WL 1125122, at *5 (S.D.N.Y. Dec. 8, 1999) (prisoner's complaint subject to heightened scrutiny
under the Prison Litigation Reform Act of 1999 even after release from custody because it concerns prison
officials’ misconduct).
2 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
3 The Complaint includes exhibits. (See Dkt. No. 1-1 through Dkt. No. 1-6.) To the extent that the exhibits
are relevant to the incidents described in the Complaint, the Court will consider the Complaint as well as
any documents attached. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (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).
4 LaPietra is “part of an independent living program for a health-related reason.” (Dkt. No. 1-1 at 5.) Her
apartment is on the second floor.
5 According to Tarver, he was “coming down the stairs, and had the door to stairwell open a crack, and he and
the officer saw each other through the glass cutout window in the door to the house/vestibule. The officer
pushed in on the door to the house and entered into the vestibule while [Tarver] was still in the stairwell. At
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some point, he asked [Tarver] what he was doing there and he said he lived there; He cuffed him, sat him
down on the outside stoop, asked what was in his pocket, and he told them the keys and his wallet and they
took the keys and wallet out of his pocket and immediately went in the other 2 doors without even checking
on who he was, that he had a parole condition, or where he lived, which could have been easily ascertained.”
6 LaPietra continues: “If there were parole officers there they were not there when I got there and they were
not the ones who originally went into the apartment or conducted a search. They city officer who entered did
not have a warrant to enter, but they had a witness [Tarver's] counsel later told me. If there was a witness
I saw no signs of them.” (Dkt. No. 1-1 at 9.) “It would have been more than reasonable to doubt anything
[Tarver] said and because the officer had access to [Tarver's] wallet and had him handcuffed it would have
been reasonable enough to ascertain whose residence it was, and that [Tarver] had a parole condition, to
contact his parole officer, or to obtain a warrant. None of this was done.” Id. at 9-10.
7 The complaint further states that “They also called and invited parole officers to the scene to illegally search
the residence as well. Someone is responsible for the arrival of officers in plain clothes and parole officers
who also illegally searched the residence.” (Dkt. No. 1-1 at 11.)
8 While not entirely clear, it appears Plaintiffs filed a “late notice of claim in regard to the Albany Police and
Albany County Correctional Facility violating [their] civil rights,” as alleged in Complaint but State Court Judge
Hon. Kimberly A. O'Conner “denied” that request. (Dkt. No. 1-6 at 1.) The Court notes, however, “New
York's General Municipal Law has only vested the power to grant notice of claim extensions to the New
York State supreme courts and county courts.” Farquharson v. Lafayette, No. 19-cv-3446 (NSR), 2020 WL
1699985, at *13 (S.D.N.Y. Apr. 7, 2020) (citing N.Y. Gen. Mun. Law § 50-e(7)). Thus, “[f]ederal courts are
not authorized to grant such extensions.” Id. (citing Davis v. City of New York, No. 12 Civ. 3297 (PGG), 2018
WL 10070540, at *13 (S.D.N.Y. Mar. 30, 2018) (“New York has given the power to extend deadlines for
serving [a] notice of claim to state supreme courts and county courts, and federal courts are not authorized to
grant such extensions.”); Dayton v. City of Middletown, 786 F. Supp. 2d 809, 824-25 (S.D.N.Y. 2011) (“[T]his
Court lacks jurisdiction, pursuant to § 50-e(7), to deem Plaintiffs’ 5/30/09 Amended Notice of Claim for their
state law claims against Orange County timely filed, or to grant an extension of time to file a late notice of
claim.”). The Court further notes that to the extent Plaintiffs seek to collaterally attack a state court's judgment
rendered before filing this action in federal court, such claims may be barred under Rooker-Feldman doctrine,
which divests the federal court of jurisdiction to consider actions that seek to overturn state court judgments.
See generally District of Colombia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923). This doctrine also bars the federal court from considering claims that are
“inextricably intertwined” with a prior state court determination. Fernandez v. Turetsky, No. 12-CV-4092, 2014
WL 5823116, at *3 (E.D.N.Y. Nov. 7, 2014) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005)).
9 See Williams, 2011 WL 13128209, at *1 (giving the plaintiff leave to file an amended complaint to name
the individuals responsible for the alleged deprivation of his rights and noting if “if plaintiff cannot identify
the individual defendant(s) within the time allowed in this order or because they were undercover, he may
designate the individual as John (or Jane) Doe #1, and so on.”).
10 Inasmuch as the Court is recommending dismissal of Plaintiffs’ Fourth Amendment claims without prejudice,
the Court does not address the merits, timeliness, and/or whether any such claims are barred by Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994).
11 It is unclear whether Tarver was a pretrial detainee or was serving a sentence at the time of the events
complained of in the complaint. For purposes of this initial review, the Court assumes that Tarver was a
pretrial detainee when his claims arose.
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12 Tarver does not specify what portions of the ADA are triggered. Reading the complaint liberally, it appears
that he brings this action under Title II.
13 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). A party not named in the caption of the complaint is not a party to the action.
Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (the failure to name a
party in the caption makes it “infeasible for the Court to determine which of the individual officers mentioned
in the body of the complaint should be deemed to be defendants to which claims”). “If people are not also
named in the caption of the [ ] complaint, they will not be defendants in the case.” Whitley v. Krinser, No.
06-CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007); see also Robles v. Armstrong, No. 3:03-
CV-1634, 2006 WL 752857, at *1 n.1 (D. Conn. Mar. 17, 2006) (“The plaintiff refers to John Doe/Jane Doe
of the Correctional Managed Health Care Program and John Doe/Jane Doe Members of the Revitalization
Committee in the body of the amended complaint. Rule 10(a) of the Federal Rules of Civil Procedure requires
that all defendants be listed in the caption of the complaint. Because the John and Jane Does are not listed
in the caption of the amended complaint, they are not defendants and the court does not consider claims
against them.”). In this instance, while LaPietra claims that she notified certain individuals about “the issues”
at Albany County C.F., including Newman, Lyons, and Trimble, see Dkt. No. 1-1 at 136, 139; Dkt. No. 1-6 at
22, the aforementioned individuals are not identified as defendants in the caption of the complaint or the list
of parties. Thus, the Court will not construe the complaint to include any claims or causes of action against
these individuals. For the same reason, the Court will not construe the complaint to include any claims or
cause of actions against other private individuals referenced in the body of the complaint, including attorneys
and grocery store employees, as they are not identified as defendants in the caption of the complaint or list
of parties.
14 Tarver should note that, although the Court has granted his IFP Application, he will still be required to pay
fees that he may incur in this action, including copying and/or witness fees.
15 If the District Court approves this Report-Recommendation, and if Plaintiffs choose to file an amended
complaint, any amended complaint must comply with Rules 8 and 10 of the Federal Rules. Any such amended
complaint must be signed by both Plaintiffs and 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. See Bass, 790 F.2d at 263. Any such amended complaint will
replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely
upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v.
Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint
ordinarily supersedes the original and renders it of no legal effect.”).
16 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P.
6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P.
6(a)(1)(C).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 141 of 340

LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 7021589
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrea LAPIETRA, Individually and as Power
of Attorney, and Deashon Tarver, Plaintiffs,
v.
CITY OF ALBANY POLICE
DEPARTMENT, et al., Defendants.
9:19-CV-1527
|
Signed 11/30/2020
Attorneys and Law Firms
Andrea LaPietra, Albany, NY, pro se.
Deashon Tarver, Albany, NY, pro se.
DECISION and ORDER
THOMAS J. McAVOY, Senior United States District Judge
I. INTRODUCTION
*1 This pro se action was referred to the Hon. Thérèse W.
Dancks, United States Magistrate Judge, to review Tarver's
in forma pauperis application 1 and for an initial review of
the Complaint pursuant to 28 U.S.C. § 1915(e). Judge Dancks
issued a Report-Recommendation and Order on October 5,
2020. Dkt. No. 24. On October 16, 2020, plaintiffs requested
an extension of time to file objections, citing a delay in
receipt of the Report-Recommendation and Order, limited
resources due to the coronavirus pandemic, the restriction
on library access because of the coronavirus pandemic, a
death in the family of one of the plaintiffs, and because
the plaintiffs were intending to seek the help of an attorney
regarding their objections. This application was granted by
Judge Dancks on October 19, 2020, and plaintiffs were given
until November 19 2020 to file their objections. On November
19, 2020, plaintiffs filed a letter with the Court requesting an
additional 2-3 week extension to file objections, citing that
they were intending to consult with a specified attorney and
because they intended to obtain information from Tarver's
doctor that they wanted to incorporate in their objections.
Plaintiffs’ request for an additional extension of time to
file objections is denied. They have failed to demonstrate
good cause for an additional extension of time. Further,
Plaintiffs will suffer no prejudice by the denial of this request
because Judge Dancks recommends that certain claims be
allowed to proceed, that others be dismissed without prejudice
and with leave to replead, and that plaintiffs’ motion for
appointment of counsel (which may now be moot) be denied
with leave to renew. While Judge Dancks recommends that
claims against the Albany Police Department and the Albany
County Corrections Facility be dismissed with prejudice, she
also recommends that these claims be allowed to proceed
against the real parties in interest, the City of Albany and
Albany County, respectively. In this regard, Judge Dancks
recommends that the claims against the Albany Police
Department be allowed to be repled against the City of
Albany, and that the County of Albany be added to the docket
as the real party in interest in the claims against the Albany
County Corrections Facility.
Because plaintiffs expressed an intention to file objections but
waited until the last day to request an extension, the Court will
deem them to have filed a general objection and will review
Judge Dancks's recommendations accordingly.
II. STANDARD OF REVIEW
When objections to a magistrate judge's report and
recommendation are lodged, the district court makes a “de
novo determination of those portions of the report or specified
proposed findings or recommendations to which objection
is made.” See 28 U.S.C. § 636(b)(1). After reviewing the
report and recommendation, the Court may “accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge. The judge may also receive
further evidence or recommit the matter to the magistrate
judge with instructions.” 28 U.S.C. § 636(b).
III. DISCUSSION
*2 After conducting a de novo review of the issues addressed
by Judge Dancks in her Report-Recommendation and Order,
the Court adopts the recommendations for the reasons stated
in Judge Dancks's thorough report.
IV. CONCLUSION
For the reasons discussed above, plaintiffs’ letter motion
for an extension of time to file objections to the Report-
Recommendation and Order (Dkt. No. 31) is DENIED.
Further, the Court ACCEPTS and ADOPTS Judge Dancks's
recommendations in the Report-Recommendation and Order
(Dkt No. 24). Therefore, it is hereby
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 142 of 340

LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
ORDERED that plaintiffs’ claims against City of Albany
Police Department and Albany County Corrections Facility
are DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim upon which relief may be granted; and it is
further
ORDERED that the Clerk is directed to revise the docket
sheet to ADD Albany County as a defendant in this action;
and it is further
ORDERED that Tarver's Fourteenth Amendment excessive
force and failure-to-protect claims against C.O. Burns and
Sgt. Remillard SURVIVE initial review and require a
response; and it is further
ORDERED that LaPietra's First Amendment Monell claim
against Albany County SURVIVES initial review and
requires a response; and it is further
ORDERED that the remaining claims are DISMISSED
WITHOUT PREJUDICE AND WITH LEAVE TO
AMEND pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.
If plaintiffs choose to file an amended complaint, any
amended complaint must comply with Rules 8 and 10 of the
Federal Rules. Any such amended complaint must be signed
by both plaintiffs and 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 deprivations alleged in sufficient
detail to establish that they were tangibly connected to those
deprivations. Any such amended complaint will replace the
existing Complaint, and must be a wholly integrated and
complete pleading that does not rely upon or incorporate by
reference any pleading or document previously filed with the
Court.
If plaintiffs intend to file an amended complaint they must
do so within thirty (30) days of the date of this Decision and
Order. If they fail to timely do so, the case will proceed on the
remaining claims in the Complaint.
The Clerk can terminate all defendants EXCEPT Albany
County, C.O. Burns, and Sgt. Remillard.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 7021589
Footnotes
1 The Court previously granted LaPietra's motion to proceed in forma pauperis and dismissed any claims that
LaPietra asserted on behalf of Tarver. (Dkt. No. 4 at 4-5.)
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 143 of 340

Lewis v. Bartosh, Not Reported in Fed. Rptr. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Salaman v. Carney, D.Conn., August 22, 2025
2023 WL 8613873
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Oswald A. LEWIS, Plaintiff-Appellant,
v.
Christopher BARTOSH, Deputy U.S. Marshal Brian
Banks, Deputy Ryan Thomas Westfield, Deputy Robert
Ledogar, Deputy Antony Dineen, Defendants-Appellees,
Bureau of Alcohol, Tobacco, Firearms and Explosives,
(ATF), United States Marshals Service, (USMS),
Howard Stern, Bureau of Alcohol Firearm and
Explosives (ATF), Ayesha Winston, Bureau of Alcohol,
Firearm and Explosives (ATF), Patrick Donahue,
United States Marshal Service (USMS), Sandy Rao,
United States Marshal Service (USMS), Defendants.
22-3060-pr
|
December 13, 2023
Appeal from a judgment of the United States District Court
for the Eastern District of New York (Kovner, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Attorneys and Law Firms
For Plaintiff-Appellant: Oswald A. Lewis, pro se, Joint Base
MDL, NJ.
For Defendants-Appellees: Varuni Nelson, Kevan Cleary,
Melanie M. Speight, Assistant United States Attorneys, of
counsel, for Breon Peace, United States Attorney for the
Eastern District of New York, Brooklyn, NY.
Present: Barrington D. Parker, Eunice C. Lee, Sarah A. L.
Merriam, Circuit Judges.
SUMMARY ORDER
*1 In 2016, Plaintiff-Appellant Oswald Lewis, proceeding
pro se, brought Bivens 1 claims against various Deputy
United States Marshals, among others (together, Defendants-
Appellees), including for use of excessive force during an
arrest at his home and for failure to intervene in that use
of force. Lewis's Bivens claims partially survived summary
judgment. See Lewis v. Bureau of Alcohol, Tobacco &
Firearms, No. 16-CV-1057(KAM)(JO), 2018 WL 4853043,
at *11–12 (E.D.N.Y. Oct. 4, 2018). In July 2022, on the
eve of trial, the district court sua sponte recognized that the
Supreme Court's recent decision in Egbert v. Boule, 596 U.S.
482 (2022) might foreclose Lewis's claims under Bivens and
invited the parties to brief the issue. After receiving that
briefing, the district court determined that Egbert foreclosed
Lewis's remaining claims against the Defendants-Appellees
and entered judgment for them. See Lewis v. Westfield, 640 F.
Supp. 3d 249, 252–55 (E.D.N.Y. 2022). Lewis appealed the
decision to this Court.
We assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues on appeal. Our review is
de novo. Garcia v. Hartford Police Dep't, 706 F.3d 120, 126
(2d Cir. 2013) (per curiam); see also Vengalattore v. Cornell
Univ., 36 F.4th 87, 101 (2d Cir. 2022) (The availability of “a
private right of action is of course a purely legal ruling, which
we review de novo.”).
As an initial matter, and contrary to Lewis's arguments that
the district court wrongly reopened the judgment, the district
court was permitted to sua sponte raise the effect of the Egbert
decision. A district court may exercise its discretion to revisit
its earlier rulings in the same case when, among other things,
there has been a change of controlling law. See Off. Comm.
of Unsecured Creditors of Color Tile, Inc. v. Coopers &
Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003). While Lewis
invokes preclusion doctrines, preclusion affects subsequent
lawsuits, not usually “later stages of the same litigation.”
Rezzonico v. H & R Block, Inc., 182 F.3d 144, 148 (2d Cir.
1999) (emphasis added). 2
We otherwise agree with the district court that Egbert
precludes Lewis's Bivens claims. In Egbert, the Supreme
Court emphasized once again that “recognizing a cause
of action under Bivens is a disfavored judicial activity.”
Egbert, 596 U.S. at 491 (internal quotation marks omitted).
“[I]f a claim arises in a new context” — such as if it
involves “a new category of defendants” — or if there
is an “alternative remedial structure,” a Bivens remedy is
generally “unavailable.” Id. at 492, 493 (internal quotation
marks omitted).
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Lewis v. Bartosh, Not Reported in Fed. Rptr. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
*2 The district court concluded that several of the factors
recognized in Egbert precluded a Bivens remedy here,
including the professional identity of Defendants-Appellees
(Deputy Marshals, rather than federal narcotics agents) and
the existence of an alternative remedial scheme through
which the Directors of the Marshals Service must investigate
reported misconduct. See Lewis, 640 F. Supp. 3d at 253–55
(citing 28 U.S.C. § 561(g); 28 C.F.R. § 0.111(n)); see also
Egbert, 596 U.S. at 497–98 (explaining that a similar remedial
scheme “independently foreclose[d]” a Bivens remedy against
the Border Patrol agents). In response to the former, Lewis
argues primarily that Egbert should be read to shield only
agents of the Department of Homeland Security. But Egbert
rebuts Lewis's position by indicating that new Bivens contexts
arise whenever there is “a new category of defendants.”
Egbert, 596 U.S. at 492 (internal quotation marks omitted).
And even giving Lewis's submissions the liberal construction
afforded to litigants proceeding pro se, we do not proceed
further in our discussion because Lewis does not address the
district court's finding of an available alternative remedial
scheme 3 and has, therefore, abandoned any challenge to that
determination. See Green v. Dep't of Educ. of City of N.Y., 16
F.4th 1070, 1074 (2d Cir. 2021) (per curiam).
In sum, Lewis has not provided any reason to disturb the
district court's ruling that his claims arose in a new Bivens
context. Finding his remaining arguments to be unavailing
or without merit, we AFFIRM the judgment of the district
court. Accordingly, the related pending motion in this matter
is DENIED.
All Citations
Not Reported in Fed. Rptr., 2023 WL 8613873
Footnotes
1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (holding that
there is an implied cause of action for money damages against federal officials for violations of the Fourth
Amendment).
2 While the clerk of the district court entered partial judgment in favor of Defendants-Appellees after the original
summary judgment decision, the district court did not direct partial entry of judgment under Fed. R. Civ. P.
54(b). Thus, the clerk's entry would not have cabined the subsequent exercise of the district court's discretion
because there was no finality.
3 Lewis asserted that “even alternative remedies did not foreclose a Bivens action,” but this statement neither
addresses the district court's discussion nor accurately reflects the law.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 145 of 340

Madera v. United States, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1019139
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Antonio MADERA, Plaintiffs,
v.
UNITED STATES of America, The City of New
York, Craig W. Tietjen, William Arnold, Metehan
Egilmez, Omar Saad and Douglas Lopez, Defendants.
24-cv-2903 (PKC)
|
Signed April 4, 2025
Attorneys and Law Firms
Cassandra Rohme, Joshua Joseph Lax, Adam Ivan
Strychaluk, Liakas Law, P.C., New York, NY, for Plaintiff.
Kellyanne Holohan, New York City Law Department, New
York, NY, for Defendant The City of New York.
Silvia L. Serpe, Kimberly Lindsay Friedman, Serpe LLC,
New York, NY, Elizabeth Wolstein, Schlam Stone & Dolan
LLP, New York, NY, for Defendant Craig W. Tietjen.
David J, Goldsmith, Elizabeth Wolstein, Schlam Stone &
Dolan LLP, New York, NY, for Defendant William Arnold.
Bertrand Rolf Madsen, Madsen Law P.A., Tampa, FL,
Elizabeth Wolstein, Schlam Stone & Dolan LLP, New York,
NY, for Defendant Metehan Egilmez.
Danielle Marryshow, DOJ-United States Attorney's Office,
New York, NY, for Defendant United States of America.
OPINION AND ORDER
CASTEL, United States District Judge
*1 Defendants Craig W. Tietjen, William Arnold and
Metehan Egilmez are officers employed by the United States
Park Police (the “Park Police” and “Park Police defendants”).
Plaintiff Antonio Madera asserts that they deprived him of
protections guaranteed by the United States Constitution
when they used excessive force against him, participated in
his false arrest and malicious prosecution and denied him
medical treatment. Madera brings a claim against the Park
Police defendants under 42 U.S.C. § 1983, asserting that
although they are federal officers, they acted under color of
state law because they conspired with members of the New
York City Police Department (“NYPD”) and exercised power
afforded to them by a New York statute. In the alternative,
Madera asserts that the Park Police defendants acted under the
color of federal law, and brings a claim under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). He also asserts that their actions denied him
access to a public accommodation on the basis of race, and
brings a claim under the New York City Human Rights Law
(the “NYCHRL”).
The Park Police defendants move to dismiss all claims against
them pursuant to Rule 12(b)(6), Fed. R. Civ. P. As will be
explained, the section 1983 claim will be dismissed because,
accepting the truth of Madera's allegations, the Park Police
defendants enforced New York law in their capacity as
federal officers, not as state actors. The Bivens claim will
be dismissed because the claim arises in a “new context”
and there are “special factors” that preclude extension of
the Bivens remedy. Egbert v. Boule, 596 U.S. 482 (2022).
Lastly, the NYCHRL claim will be dismissed as to the
Park Police defendants because Madera does not plausibly
allege that their conduct amounted to the denial of a public
accommodation.
BACKGROUND.
For the purposes of this Rule 12(b)(6) motion and in its
summary of the Complaint, the Court accepts Madera's non-
conclusory factual allegations as true. See, e.g., In Re Shanda
Games Ltd. Sec. Litig., 128 F.4th 26, 41 (2d Cir. 2025).
On January 7, 2020, Madera was near Battery Place and
West Street in Lower Manhattan, where he managed ticket-
selling agents as an employee of Midtown Tours, a tourism
company. (Second Amended Complaint (the “Complaint”
or “Compl't”) ¶¶ 29-33.) The Park Police defendants, along
with NYPD officer Omar Saad, approached Madera from
behind and demanded to search him. (Compl't ¶ 35.) Madera
objected and asked why the officers wanted to conduct a
search. (Compl't ¶ 36.) When Madera walked away, the Park
Police defendants struck him in the head and body with what
Madera believes were police batons and forced him to the
ground while continuing to strike him. (Compl't ¶¶ 39-40.)
Madera did not resist arrest or attempt to strike any officer.
(Compl't ¶¶ 42-43.)
The officers refused to provide Madera with medical
treatment and a bystander called an ambulance. (Compl't ¶
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Madera v. United States, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
45.) Madera was transported to a hospital, where he showed
signs of traumatic brain injury, including confusion, agitation,
looping words and inability to recall the date or year. (Compl't
¶ 47.) Tietjen and Arnold were not forthcoming with medical
staff about the extent of the force used against Madera and
did not disclose that he had been mute and unresponsive for
several minutes. (Compl't ¶¶ 48-50.) Tietjen and Arnold told
hospital staff that Madera suffered from a psychiatric episode
and they would not permit staff to examine him unless he
was sedated. (Compl't ¶¶ 54-55.) Madera states that he has
a severe allergy to a sedative called Haldol and successfully
objected to its administration. (Compl't ¶¶ 56-58.) Madera
asserts that Tietjen and Arnold prevented hospital staff from
administering a more thorough examination that would have
revealed that he had suffered traumatic brain injury. (Compl't
¶¶ 52-53.)
*2 At the insistence of Tietjen and Arnold, Madera was
removed from the hospital approximately an hour after he
arrived, and taken to the NYPD's First Precinct, where
Madera continued to show symptoms consistent with a
traumatic brain injury. (Compl't ¶¶ 59-62.) While Madera
was in rear handcuffs, Arnold threw him to the ground and
left him there for several minutes, before he was taken to a
holding cell, where Arnold, Tietjen and defendant Douglas
Lopez engaged in additional acts of force, including strikes to
the face. (Compl't ¶¶ 63-69.)
Madera asserts that the individual defendants made false
statements to the Brooklyn District Attorney for use in his
prosecution. (Compl't ¶¶ 71-73.) Madera was charged with
obstruction of government administration, resisting arrest and
harassment in the second degree, arraigned on January 8,
2020, and released on his own recognizance. (Compl't ¶
74-75.) All charges against him were dropped on July 14,
2020. (Compl't ¶ 77.)
Pursuant to 42 U.S.C. § 1983, Madera asserts that the
Park Police defendants deprived him of the protections
of the Fourth and Fourteenth Amendments by subjecting
him to excessive force, falsely arresting him, maliciously
prosecuting him and denying him medical treatment, all
while acting color of state law. (Compl't ¶¶ 81-93.) In the
alternative, Madera brings a Bivens claim against the Park
Police defendants, premised on the assertion that they acted
under the color of federal law. (Compl't ¶¶ 176-81.) He
separately brings a claim under the NYCHRL, asserting that
because he is Black, defendants denied him access to a
public sidewalk, which he asserts is a public accommodation.
(Compl't ¶¶ 167-75.)
This action was originally filed in the New York Supreme
Court, New York County. (ECF 1.) On April 17, 2024, the
United States removed the action to federal court pursuant
to 28 U.S.C. § 2679(d)(2) because the Second Amended
Complaint added the Park Police defendants as parties. (ECF
1.) The Second Amended Complaint also brought common
law claims of false arrest, malicious prosecution and assault
and battery against the Park Police defendants. (Compl't ¶¶
94-114.) By a Stipulation and Order of August 6, 2024, the
United States was substituted as defendant for each Park
Police defendant under the Federal Tort Claims Act for the
three common law claims. (ECF 18.) Only the Park Police
defendants have filed a motion to dismiss.
RULE 12(b)(6) STANDARD.
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
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
court assessing the sufficiency of a complaint must disregard
legal labels or conclusions, which are not entitled to the
presumption of the truth. Iqbal, 556 U.S. at 678. Instead, the
court must examine only the well-pleaded factual allegations,
if any, “and then determine whether they plausibly give rise
to an entitlement to relief.” Id. at 679. “Dismissal under Rule
12(b)(6) is therefore appropriate only if ‘it is clear from the
face of the complaint, and matters of which the court may
take judicial notice, that the plaintiff's claims are barred as a
matter of law.’ ” Michael Grecco Products, Inc. v. RADesign,
Inc., 112 F.4th 144, 150 (2d Cir. 2024) (quoting Sewell v.
Bernardin, 795 F.3d 337, 339 (2d Cir. 2015)).
DISCUSSION.
I. MADERA'S SECTION 1983 CLAIM AGAINST THE
PARK POLICE DEFENDANTS WILL BE DISMISSED.
*3 Madera seeks to hold the Park Police defendants liable
under 42 U.S.C. § 1983, urging that because they were
enforcing New York law and worked in collaboration with
NYPD officers, they acted under color of state law and are
liable as state actors. But federal law enforcement officers
often act jointly with state officials or enforce a state law
based on powers expressly afforded to them as federal
officers, not as state actors. Because the Complaint does
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Madera v. United States, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
not plausibly allege facts describing the extremely limited
circumstances in which a federal official can be liable as a
state actor under section 1983, Madera's section 1983 claim
will be dismissed.
Section 1983 provides for an action to redress “the
deprivation of any rights, privileges or immunities secured
by the Constitution and laws” committed by a person acting
under color of state law. “The traditional definition of acting
under color of state law requires that the defendant in a § 1983
action have exercised power ‘possessed by virtue of state law
and made possible only because the wrongdoer is clothed with
the authority of state law.’ ” West v. Atkins, 487 U.S. 42, 49
(1988) (quoting United States v. Classic, 313 U.S. 299, 326
(1941)).
“The determination as to whether a non-state party acts under
color of state law requires an intensely fact-specific judgment
unaided by rigid criteria as to whether particular conduct may
be fairly attributed to the state.” Arar v. Ashcroft, 585 F.3d
559, 568 (2d Cir. 2009). Typically, however, “[a]n action
brought pursuant to 42 U.S.C. § 1983 cannot lie against
federal officers.” Kingsley v. Bureau of Prisons, 937 F.2d 26,
30 n. 4 (2d Cir. 1991); accord United States v. Acosta, 502
F.3d 54, 60 (2d Cir. 2007) (“Section 1983, of course, does not
apply to allegedly unlawful acts of federal officers ....”). “A
federal actor may be subject to section 1983 liability where
there is evidence that the federal actor was engaged in a
‘conspiracy’ with state defendants.” Beechwood Restorative
Care Ctr. v. Leeds, 436 F.3d 147, 154 (2d Cir. 2006). “[E]ven
specific allegations of conspiracy, if conclusory, would not
be sufficient to state a claim for conspiratorial violation of
[a plaintiff's] rights.” Morales v. City of New York, 752 F.3d
234, 237 (2d Cir. 2014).
Judge Garnett recently summarized the circumstances in
which federal officers may be liable under section 1983:
Federal actors can potentially be held
liable under § 1983 under extremely
limited circumstances where their
conduct is the joint product of the
exercise of a State power and of a non-
State power and where the state or its
officials played a significant role in the
result. Cooperation between state and
federal bureaucracies is insufficient;
federal actors must have acted with
an improper motive rather than just in
a spirit of cooperation with the state
defendants. Moreover, federal officers
who conspire with a state officer may
act under color of state law, but since
federal officials typically act under
color of federal law, they are rarely
deemed to have acted under the color
of state law.
Escobar v. Correa, 2024 WL 4042122, at *6 (S.D.N.Y. Sept.
4, 2024) (citations, quotation marks and alterations omitted).
In Escobar, Judge Garnett granted a motion to dismiss
a section 1983 claim brought against two deputy United
States Marshals who allegedly used excessive force alongside
NYPD members to arrest a plaintiff who absconded from a
Queens County court after his bail was revoked. Id. at *1, *6-8
& n. 3. The plaintiff was then transported from the Bronx to
central booking in Queens. Id. at *2. Judge Garnett concluded
that the deputy Marshals acted pursuant to a federal grant
of authority as deputized members of the federal Marshal
Fugitive Task Force. Id. at *7. The execution of a state warrant
and presence of deputized state law-enforcement officers did
not alter the federal nature of the conduct, and it was “plainly
insufficient” to merely allege that the task force included state
employees and that defendants acted in violation of state law.
Id.
*4 Section 2.15(9) of the New York Criminal Procedure
Law expressly provides that Park Police officers can enforce
New York's criminal laws, including the authority to make
a warrantless arrest and to use physical force in making an
arrest. N.Y. C.P.L. §§ 2.15(9), 2.20(1)(a), (b). “[U]nder CPL
2.15, certain ‘federal law enforcement officers’ are accorded
limited peace officer powers.” People v. Page, 35 N.Y.3d 199,
206 (2020). Section 2.15(9) incorporates several provisions
of CPL section 140.25. “In fact, U.S. Park Police officers are
granted broader authorities [under section 2.15(9)] than most
of their federal counterparts.” Evans v. Solomon, 681 F. Supp.
2d 233, 241-42 (E.D.N.Y. 2010).
In adopting section 2.15, “[t]he obvious intention was to grant
the designated federal officers specified powers to enforce
New York (as distinguished from federal) law and to extend
those powers to locations beyond federal property.” N.Y.
C.P.L. § 2.15, Practice Commentary (McKinney's). “[S]ection
2.15 does establish that when circumstances such as those
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faced by [the officer] arise, New York encourages federal
officers to enforce New York law.” United States v. Hoy, 137
F.3d 726, 731 n.1 (2d Cir. 1998); see also United States v.
Samuels, 2004 WL 2823079, at *3 (S.D.N.Y. Dec. 7, 2004)
(DEA agents lawfully made a warrantless arrest for driving
with a defective tail light under New York law, consistent with
CPL section 2.15) (Patterson, J.); People v. Boyea, 44 A.D.3d
1093, 1094 (3d Dep't 2007) (Border Patrol officer's “status
as a federal agent did not deprive him of authority” to search
vehicle for violation of state law).
Madera urges that the grant of authority under section 2.15(9)
demonstrates that the Park Police defendants acted under
color of state law when they arrested Madera and used force
against him. But without more, enforcement of a state law
in the course of a federal officer's work does not make that
officer a state actor. Section 2.15 conditions its grant of
authority on the officer's position at one of the identified
federal agencies. While the Court has been unable to locate
any authority that discusses section 2.15 in relation to section
1983, Evans considered section 2.15(9) in the context of
a Bivens claim premised on the officer acting under color
of federal law, and concluded that the statute permitted a
Park Police officer to make a warrantless stop for a traffic
offense. 681 F. Supp. 2d at 241-44. In criminal proceedings,
the Second Circuit has cited section 2.15 to support the
conclusion that a defendant can be guilty of the crime of
assaulting a federal officer who is in the process of enforcing a
state law. Hoy, 137 F.3d at 731 (a deputy Marshal “is expected
and authorized” to intervene “where there is harm or a threat
of harm as a consequence of the violation of state law.”); cf.
United States v. Reid, 517 F.2d 953, 964 (2d Cir. 1975) (“If
DEA agents or other federal law enforcement officers do what
they are properly expected to do in the enforcement of state
criminal laws, they should have the same federal protection
they would receive in the performance of their other duties.”).
These decisions support the conclusion that a federal officer
enforcing a state law under section 2.15 does so under color
of federal law, not as a state actor.
That the Park Police defendants acted within the scope of
their authority as federal officers is further supported by
sections .06 and .07 of Park Police General Order No. 2101.
(ECF 32-7.) The General Order “allows the exercise of such
state law enforcement authority when there is some sort
of unexpected occurrence that requires immediate action”
while “outside the National Park System” and states that
“[p]rosecution of all state law offenses ... shall be handled
only in State court.” Gen. Order § 2101.06(C). The General
Order quotes from CPL section 2.15(9) when noting that
a Park Police officer may make an arrest under New York
law where there is reasonable cause to believe that “any
offense” has been committed. Id. § 2101.07(A)(1). While
this General Order is not among the policies currently in
effect on the Park Police website, 1 it is consistent with the
plain language of CPL 2.15(9) and supports the conclusion
that Park Police officers act in a federal capacity when
enforcing New York law. Cf. Hoy, 137 F.3d at 730 (courts
and Congress use “expansive reasoning” when determining
whether enforcement of state law is part of an officer's official
duties, including consideration of unwritten policies).
*5 Madera also urges that the Park Police defendants could
not have acted under color of federal law because they
were not on federal property during the events described
in the Complaint, and even accompanied Madera to the
NYPD precinct. (Opp. Mem. at 17-18.) But, as previously
discussed, there is ample precedent recognizing that federal
law enforcement officers have authority to enforce state law,
and the view of the Park Police as set forth in the General
Order permits the exercise of state law enforcement authority
“outside the National Park System.”
To the extent that the Complaint purports to describe the
Park Police defendants as participants in a conspiracy,
conclusory allegations that they “conspired” or acted “in
conspiracy” (Compl't ¶¶ 82-83, 85) with state actors are
legal labels not afforded a presumption of truth. See, e.g.,
Doe v. Fenchel, 837 Fed. App'x 67, 68-69 (2d Cir. 2021) (“
‘A complaint containing only conclusory, vague, or general
allegations of conspiracy to deprive a person of constitutional
rights cannot withstand a motion to dismiss.’ ”) (quoting
Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (per
curiam)). As Judge Garnett observed, mere cooperation
between state and federal officers is insufficient, and a
plaintiff must identify an improper motive of the federal
actors. Escobar, 2024 WL 4042122, at *6 (“[c]ooperation
between state and federal bureaucracies is insufficient; federal
actors must have acted with an improper motive rather than
just in a spirit of cooperation with the state defendants.”)
(quotation marks omitted). 2
Accepting the truth of the Complaint's non-conclusory factual
allegations, Madera describes actions taken by federal law
enforcement officers to enforce state law based on their
authority as federal officials, and not as state actors. The
motion to dismiss Madera's section 1983 claim will therefore
be granted.
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II. MADERA'S BIVENS CLAIM WILL BE
DISMISSED.
Pleading in the alternative, Madera also brings a Bivens
claim, asserting that the Park Police Defendants deprived him
of rights guaranteed by the Constitution while acting under
color of federal law. (Compl't ¶¶ 176-81.) Because Madera's
claim arises in a new context and special factors counsel
against an extension of the Bivens remedy, the claim fails as
a matter of law and will be dismissed. Egbert v. Boule, 596
U.S. 482 (2022).
To state a valid Bivens claim against a federal official in his or
her individual capacity, a plaintiff must allege that he or she
“has been deprived of a constitutional right by a federal agent
acting under color of federal authority.” Thomas v. Ashcroft,
470 F.3d 491, 496 (2d Cir. 2006). Not all such wrongs,
however, give rise to a Bivens action. The Supreme Court
historically recognized three categories of Bivens claims and
since emphasized that “expanding the ... remedy is now a
‘disfavored’ judicial activity.” Ziglar v. Abbasi, 582 U.S. 120,
135 (2017) (quoting Iqbal, 556 U.S. at 675). The approved
claims arose in: (i) Bivens itself, a Fourth Amendment search-
and-seizure suit against federal narcotics officers; (ii) Davis
v. Passman, 442 U.S. 228 (1979), a Fifth Amendment due
process suit against a congressman-employer on the grounds
of gender discrimination; and (iii) Carlson v. Green, 446
U.S. 14 (1980), an Eighth Amendment cruel and unusual
punishment suit against federal prison authorities for failure
to provide adequate medical treatment. See Ziglar, 582 U.S. at
130-31. “After those decisions, however, the Court changed
course,” and has “consistently rebuffed requests to add to the
claims allowed under Bivens.” Hernandez v. Mesa, 589 U.S.
93, 99, 102 (2020).
*6 A bifurcated framework governs whether a Bivens claim
should proceed. First, the court determines “whether the
request involves a claim that arises in a ‘new context’ ”
for a Bivens action. Id. at 102. The court's “understanding
of a ‘new context’ is broad,” and the court “ ‘regard[s] a
context as ‘new’ if it is different in a meaningful way from
previous Bivens cases decided by’ ” the Supreme Court. Id.
(quoting Ziglar, 528 U.S. at 147). “[A] case that involves a
new category of defendants” is a new context that does not
allow for a Bivens remedy because it is a “situation[ ] in which
a court is not undoubtedly better positioned than Congress to
create a damages action.” Egbert, 596 U.S. at 492 (quotation
marks omitted).
Second, “if a claim arises in a new context, a Bivens remedy
is unavailable if there are ‘special factors’ indicating that the
Judiciary is at least arguably less equipped than Congress to
‘weigh the costs and benefits of allowing a damages action to
proceed.’ ” Id. (quoting Ziglar, 582 U.S. at 136). If “Congress
or the Executive has created a remedial process that it finds
sufficient to secure an adequate level of deterrence, the courts
cannot second-guess that calibration by superimposing a
Bivens remedy,” “even if a court independently concludes
that the Government's procedures are not as effective as an
individual damages remedy.” Id. at 498 (quotation marks
omitted). “If there is even a single reason to pause before
applying Bivens in a new context, a court may not recognize
a Bivens remedy.” Id. (quotation marks omitted). “While our
cases describe two steps, those steps often resolve to a single
question: whether there is any reason to think that Congress
might be better equipped to create a damages remedy.” Id.
Following Egbert, the Second Circuit has issued two
summary orders affirming dismissal of Bivens claims against
new categories of defendants. Cohen v. Trump, 2024 WL
20558, at *2-3 (2d Cir. Jan. 2, 2024) (affirming dismissal
of Bivens claim because Bureau of Prisons officials are a
new category of defendants and claim related to solitary
confinement would have extended the Bivens remedy)
(summary order); Lewis v. Bartosh, 2023 WL 8613873, at *2
(2d Cir. Dec. 13, 2023) (affirming dismissal of Bivens claim
because deputy United States Marshals are a new category of
defendants and an alternative remedial scheme was in place)
(summary order); see also Escobar, 2024 WL 4042122, at *4
(citing Cohen and Lewis in dismissing Bivens claim against
deputy Marshal).
Judge Chen of the Eastern District of New York recently
dismissed a Bivens claim against a Park Police officer because
it was brought “against an officer from a different agency
than in Bivens,” noting that “the difference in agency is now
sufficient, after Egbert, to create a new context.” Gray v.
Gomez, 728 F. Supp. 3d 264, 271 (E.D.N.Y. 2024) (quotation
marks and alterations omitted). In Gray, the officer allegedly
used a taser upon plaintiff when a fight broke out at a
barbecue. Id. at 266. Plaintiff was arrested and transported
by Park Police officers to an NYPD precinct and charged
in Kings County Criminal Court, and all charges were later
dismissed. Id. at 266-67. Plaintiff brought a Bivens claim
asserting false arrest, excessive force and deprivation of
the right to fair trial. Id. at 267. While plaintiff's factual
allegations broadly paralleled those in Bivens itself, including
a line-level law-enforcement officer allegedly using excessive
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force and making a warrantless false arrest in violation of
established law, the “caution” advised in Egbert and the
Second Circuit's summary orders in Cohen and Lewis led
Judge Chen to conclude that defendant's role as a Park Police
officer presented a new context for Bivens purposes. Id. at
269-72.
*7 On the second prong of the Bivens analysis, Judge
Chen concluded that complaint procedures used by the
Park Police were a special factor that made the Bivens
remedy unavailable. Id. at 273 (“the existence of the Park
Police's complaint procedures alone forecloses Plaintiff's
claims.”) (emphasis in original). She stated that, under Egbert,
“the Court ultimately ‘cannot second guess’ that remedial
structure by superimposing a Bivens remedy’ where it does
not already exist.” Id. (quoting Egbert, 596 U.S. at 498);
see also Lewis, 2023 WL 8613873, at *1 (“if there is an
‘alternative remedial structure,’ a Bivens remedy is generally
‘unavailable.’ ”) (quoting Egbert, 596 U.S. at 492, 493).
This Court is persuaded by Judge Chen's thorough opinion,
which addressed a Bivens claim factually similar to Madera's.
Egbert, and its application in the Cohen and Lewis summary
orders, require the conclusion that Madera's claim against
the Park Police defendants presents a “new context” under
Bivens. The Court further concludes that the Internal Affairs
Unit of the Park Police provides a complaint procedure
for the investigation of claims. The Park Police website
states: “The United States Park Police Internal Affairs Unit
documents and investigates allegations of misconduct against
Department personnel that are received both through internal
(administrative) and external (citizen generated) means....
The supervisor assigned to the case will conduct a thorough
investigation, to include an interview of the involved
employee and any witnesses that have been identified.” 3
When a complaint is sustained, “appropriate disciplinary
action will be taken against the affected employee.” The
agency's alternative remedial scheme “preclude[s] a Bivens
remedy here ....” Lewis, 2023 WL 8613873, at *2 (citing
Marshals Service remedial scheme); see also Kunstler v.
Central Intelligence Agency, 2023 WL 8776339, at *5
(S.D.N.Y. Dec. 19, 2023) (CIA's internal remedial process
precluded Bivens relief) (Koeltl, J.). 4
Because Madera's Bivens claim arises in a new context and
because the availability of Park Police complaint procedures
is a special factor that makes a Bivens remedy unavailable,
the Bivens claim fails as a matter of law and will be dismissed.
III. THE COURT DECLINES TO REACH
DEFENDANTS' ARGUMENTS ON TIMELINESS.
*8 As an alternative grounds for dismissal, the Park Police
defendants urge that Madera's section 1983 and Bivens claims
should be dismissed as time-barred because they were not
filed within the three-year limitations period. See Kane v.
Mount Pleasant Central School District, 80 F.4th 101, 104 (2d
Cir. 2023); Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir.
1999).
In response, Madera argues that the claims were subject
to tolling under New York Executive Order 202.8, under
which then-Governor Cuomo tolled the time period for
the commencement of personal-injury actions due to the
Covid-19 pandemic. See 9 C.R.R.-N.Y. § 8.202. District
Courts have reached conflicting conclusions about the
applicability of that Executive Order to section 1983 claims.
See Miehle-Kellogg v. County of Suffolk, 2024 WL 5120017,
at *10-12 (E.D.N.Y. Dec. 16, 2024) (surveying authorities
and concluding that Executive Order 202.8 tolls section
1983 claims). The Second Circuit has not yet spoken to the
issue. See Mallet v. New York State Dep't of Correction &
Community Supervision, 126 F.4th 125, 134 n.7 (2d Cir.
2025) (declining to address the issue as “not necessary to
decide this appeal.”). The Court is unaware of authority that
considers what effect, if any, the Executive Order has on the
tolling of a Bivens claim.
Because the Complaint does not plausibly state a claim
against the Park Police defendants under section 1983 or
Bivens, the Court need not decide whether the claims were
timely brought, including the issue of whether the Executive
Order tolled the period to bring these claims.
IV. MADERA DOES NOT PLAUSIBLY STATE
A CLAIM AGAINST THE PARK POLICE
DEFENDANTS UNDER THE NYCHRL.
Madera asserts that the Park Police defendants violated the
NYCHRL. (Compl't ¶¶ 167-75.) He asserts that a sidewalk is
a public accommodation under the NYCHRL and that he was
treated differently than non-Black individuals who used that
same public accommodation. (See id.)
The NYCHRL applies to “any person who is the
owner ... or employee of any place or provider of public
accommodation ....” NYC Admin. Code § 8-107(4). “The
term ‘place or provider of public accommodation’ includes
providers, whether licensed or unlicensed, of goods, services,
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facilities, accommodations, advantages or privileges of any
kind, and places, whether licensed or unlicensed, where
goods, services, facilities, accommodations, advantages or
privileges of any kind are extended, offered, sold, or
otherwise made available.” Id. § 8-102. The NYCHRL
makes it unlawful “[b]ecause of any person's actual or
perceived race ... [to] withhold from or deny to such
person the full and equal enjoyment, on equal terms and
conditions, of any of the accommodations, advantages,
services, facilities, or privileges of the place or provider
of public accommodation ....” Id. § 8-107(4)(1)(a). The
NYCHRL provides that its terms “shall be construed liberally
for the accomplishment of [its] uniquely broad and remedial
purposes.” Id. § 8-130(a). “[E]ven under the City HRL, the
general principle of liberal construction does not substitute
for evidence ....” Russell v. New York Univ., 42 N.Y.3d 377,
385 (2024) (quotation marks and brackets omitted).
In discussing administrative enforcement of the New
York State Human Rights Law (the “NYSHRL”), the
Appellate Division has noted that while law enforcement
“could” provide a public accommodation “under certain
circumstances,” “arrest and incarceration are properly viewed
as the antithesis of a public accommodation.” Letray v.
New York State Div. of Human Rights, 181 A.D.3d 1296,
1297 (4th Dep't 2020) (emphasis in original; quotation
marks and ellipsis omitted). It affirmed the dismissal of
petitioner's administrative complaint for lack of jurisdiction,
stating that “it defies logic to suggest that law enforcement
is providing ‘conveniences’ or ‘services’ to those arrested
and detained.” Id.; see also O'Brien v. City of Syracuse,
2023 WL 6066036, at *24 n. 11 (N.D.N.Y. Sept. 18, 2023)
(concluding that the NYSHRL “does not apply to police-
citizen encounters ....”) (citing Letray). While the NYSHRL
differs from the NYCHRL, they are both construed liberally.
See, e.g., Griffith v. Coney Food Corp., 2020 WL 4748452,
at *3 n. 4 (E.D.N.Y. Aug. 17, 2020).
*9 In D.H. v. City of New York, 309 F. Supp. 3d 52, 81
(S.D.N.Y. 2018), the undersigned assumed without deciding
that services offered by the NYPD could constitute a public
accommodation under the NYCHRL and NYSHRL, but that
an officer's determination of probable cause to arrest a person
was not a service, accommodation or other act covered by the
NYCHRL and NYCHRL, and was instead “a power bestowed
by statute to police and peace officers that is held in check by
two centuries of established judicial precedent” and “subject
to well-developed state and federal constitutional restraints.”
Id. The Court dismissed plaintiffs' claim that their arrests were
unlawful under the NYCHRL. Id.
Madera argues that the NYCHRL claim is directed to the
NYPD's interference with his use and enjoyment of a public
sidewalk on the basis of race, as opposed to “mere arrest
and detention ....” (Opp. Mem. 23.) But his NYCHRL
claim expressly alleges that defendants “stopped, questioned,
arrested, assaulted, battered, frisked, and [used] excessive
force” against him, resulting in “serious physical injuries ...
because of the Constitutional violations carried out and/or
allowed by Defendants.” (Compl't ¶¶ 169, 172.) The claimed
deprivations of Madera's constitutional rights are the same
actions that allegedly deprived him of use and enjoyment of
the public sidewalk. For the reasons set forth in Letray and
D.H., an officer's actions during an arrest and use of force
while making an arrest do not plausibly allege the denial of a
public accommodation under the NYCHRL.
Madera's NYCHRL claim will therefore be dismissed as to
the Park Police defendants.
CONCLUSION.
The motion to dismiss filed by Craig W. Tietjen, William
Arnold and Metehan Egilmez is GRANTED. (ECF 30.)
SO ORDERED.
All Citations
Slip Copy, 2025 WL 1019139
Footnotes
1 https://www.nps.gov/subjects/uspp/u-s-park-police-general-orders.htm (last visited April 4, 2025)
2 On the question of whether defendants acted under the color of state law, the Court does not afford weight to
certain language in the Stipulation and Order substituting the United States as defendant on Madera's FTCA
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claims. (ECF 18.) While that Stipulation and Order provides that defendants' alleged wrongful acts occurred
within the scope of their federal employment as Park Police, it also states that “[n]othing in this Stipulation
shall be construed to impact Plaintiff's Bivens or Section 1983 claims ....” (Id.)
3 https://www.nps.gov/subjects/uspp/file-a-complaint.htm (last visited: April 4, 2025)
4 Hicks v. Ferreyra, 64 F.4th 156 (4th Cir. 2023), affirmed a jury verdict and damages awarded on a Bivens
claim brought by a secret service agent who asserted that he had been unlawfully detained by Park Police
officers. Among other things, the Fourth Circuit noted that defendants did not identify an alternative remedial
procedure offered by the Park Police. Id. at 168 n. 3. The Hicks defendants also first challenged the availability
of Bivens relief in an interlocutory appeal filed after the district court denied a motion for summary judgment on
qualified immunity grounds, and apparently did not raise the issue with the district court until a motion brought
under Rule 50(a) during the trial. See id. at 163-64. The absence of an alternative remedy and the procedural
history of Hicks distinguish that case from Madera's claims. Courts outside of the Fourth Circuit have declined
to adopt the reasoning of Hicks. See Lovett v. United States, 2024 WL 4286054, at *6 (D.D.C. Sept. 25,
2024) (Hicks did not follow Egbert’s “admonition to resist ‘superficial similarities’ when asking whether a case
presents a new context.”); Gray, 728 F. Supp. 2d at 270-72 (discussing Hicks but concluding that “ ‘our
watchword is caution.’ ”) (quoting Egbert, 596 U.S. at 491).
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Martinez v. D'Agata, Not Reported in Fed. Supp. (2019)
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KeyCite Yellow Flag
Distinguished by Powell v. United States, S.D.N.Y., August 31, 2020
2019 WL 6895436
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jason MARTINEZ, Plaintiff,
v.
Steven D'AGATA, Mark Hess, Andrew Frank,
Anthony Costales, and Sean Grogan, Defendants.
16 CV 44 (VB)
|
Signed 12/16/2019
|
Filed 12/18/2019
Attorneys and Law Firms
Jonathan Robert Goldman, Sussman and Associates, Michael
Howard Sussman, Sussman & Watkins, Goshen, NY, for
Plaintiff.
Robert Varga, Law Office of Thomas K. Moore, White Plains,
NY, Eric Daniel Feldman, Law Firm of Louis Ginsberg, P.C.,
New York, NY, for Defendants Detective Steven D'Agata,
Mark Hess.
Eric Daniel Feldman, Law Firm of Louis Ginsberg, P.C., New
York, NY, for Defendant John Doe 1-3.
Andrew Edward Krause, United States Attorney's Office,
New York, NY, for Defendants Andrew Frank, Anthony
Costales, Sean Grogan.
OPINION AND ORDER
Briccetti, United States District Judge:
*1 Plaintiff Jason Martinez brings a Fourth Amendment
claim against defendants Investigators Andrew Frank and
Sean Grogan for failing to intervene while unnamed
individuals used excessive physical force against plaintiff
without justification. Plaintiff also asserts a Fifth Amendment
claim against defendants Frank, Grogan, and Detective
Anthony Costales (collectively, the “federal defendants”),
and a Fourteenth Amendment claim against Detectives
Steven D'Agata and Mark Hess (collectively, the “Liberty
defendants”), for deliberate indifference to serious medical
needs.
Before the Court are motions for summary judgment filed
by the federal defendants and the Liberty defendants. (Docs.
##103, 110).
For the reasons set forth below, the federal defendants’
motion is GRANTED, and the Liberty defendants’ motion is
DENIED.
The Court has subject matter jurisdiction under 28 U.S.C. §
1331.
BACKGROUND
The parties submitted briefs, declarations with exhibits, and
statements of material fact pursuant to Local Civil Rule 56.1,
which reflect the following factual background.
The federal defendants were members of the United States
Marshals Service's New York/New Jersey Regional Fugitive
Task Force when the events relevant to this action occurred.
The task force is overseen by the United States Marshals
Service, a federal agency. Its members are appointed Special
Deputy United States Marshals, even though the members
are employees of different state and local law enforcement
agencies.
The Liberty defendants were members of the Village of
Liberty Police Department when the events relevant to this
action occurred.
I. Plaintiff's Arrest
Plaintiff, a registered level-two sex offender, moved from
Liberty, New York, to his friend's home in Maspeth, Queens,
in January 2015.
Thereafter, D'Agata of the Liberty Police Department
provided Frank of the task force with a warrant authorizing
plaintiff's arrest for failing to report a recent address change. 1
On February 18, 2015, Frank sent an e-mail to members of
the task force seeking assistance to execute the arrest warrant
the following day.
At least eight members of the task force participated in
the operation to apprehend plaintiff. The group met at 5:30
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a.m. on February 19, 2015, at the New York City Police
Department's 104th Precinct, in Queens, and proceeded to
plaintiff's friend's home at 52-24 71st Street in Maspeth,
where plaintiff was staying with his family.
Plaintiff was arrested that morning.
A. Apprehension and Arrest
The parties offer differing accounts of plaintiff's arrest.
Plaintiff testified the task force members entered the home
of Jaime Morales, plaintiff's friend, in search of plaintiff.
According to plaintiff, two task force members—whom
plaintiff described as a short, “bald”, and “chubby” white man
and a tall black man—went into the basement and handcuffed
plaintiff. (Doc. #116 (“Sussman Aff.”), Ex. 3 (“Pl. Dep.”)
at 55, 60–61). 2 The officers pushed plaintiff's head into a
protruding pipe, and then proceeded with plaintiff upstairs
toward the backyard. (Id. at 62). Plaintiff testified he was
dragged from the house to a snow bank where the two task
force members “pushed [his] face first into the snow bank”
and struck him with a flashlight in the back of his head. (Id. at
68, 143). Plaintiff then was repeatedly “kicked in [his] groin
area ... until [he] started losing consciousness.” (Id. at 71).
*2 Morales testified he heard somebody “getting beat up
downstairs” and indicated this occurred both inside and
outside the house. (Sussman Aff. Ex. 2 (“Morales Dep.”)
at 58). Morales further testified he heard plaintiff's wife
screaming and telling the officers to stop. (Morales Dep. at
61). Plaintiff's wife also testified plaintiff was screaming.
Defendants tell a different story. Members of the task force
testified that they knocked on the door, waited two to
five minutes and heard a door slam, and then someone
opened the front door. According to the federal defendants,
Frank, Costales, and three other task force members entered
Morales's home after a brief conversation with one of the
residents.
Grogan testified that as members of the task force went to
the front door, he and task force member Canario attempted
to access the back of the house but were unable to do so.
Instead, Grogan and Canario proceeded to a residence three
or four houses away from 52-24 71st Street. While Grogan
could not recall seeing plaintiff prior to his arrest, he did
recall Canario yelling stop at someone who was “four or five
houses” away. (Doc. #108 (“Krause Decl.”) Ex. B (“Grogan
Dep.”) at 38). When Grogan and Canario arrived at the place
where the unidentified person had been standing, Grogan
encountered a chain link fence and “obvious footprints.” (Id.
at 41). Kurzhals, another task force member, said he saw
the suspect “running, but slowly. Limping, running.” (Krause
Decl. Ex. E (“Kurzhals Dep.”) at 40). Eventually, Kurzhals
caught up with plaintiff, drew his weapon, and told plaintiff
to stop running and lay on the ground. Kurzhals then arrested
plaintiff. 3
According to Frank, plaintiff was apprehended “at a location
several blocks away” from Morales's home. (Doc. #105
(“Frank Decl.”) ¶ 6). Frank drove over to the site of plaintiff's
arrest and saw plaintiff lying in a snow bank. Frank observed
plaintiff was “bleeding from the bottom of his feet.” (Krause
Decl. Ex. A (“Frank Dep.”) at 36). Frank testified he drove
plaintiff back to the house before leaving for the 104th
Precinct.
Plaintiff, however, denies any attempt to flee and maintains he
did not jump over any fence. (Pl. Dep. at 33). Plaintiff testified
that the officers who drove him to the 104th Precinct were
the same officers that beat him up. However, both Frank and
Grogan state that they did not see plaintiff until after he was
arrested by Kurzhals, and Frank said plaintiff later apologized
for running from the house.
B. Transport to the Precinct
A task force member had called for medical assistance to
respond to Morales's home and subsequently redirected the
ambulance to the 104th Precinct.
Frank and Grogan transported plaintiff to the precinct, five
minutes from 52-24 71st Street. Plaintiff testified he was
unconscious during the ride, vomited on his shirt, experienced
pain in his groin, and had difficulty breathing. Frank and
Grogan recalled plaintiff's heavy breathing but attributed it to
the fact that plaintiff had just been running. (Frank Dep. at 48–
50). Plaintiff did not request medical care during this drive.
II. Medical Treatment at the 104th Precinct
At 6:28 a.m., emergency medical technicians (“EMTs”) Edith
Moog and Siewnarine Persad of the New York City Fire
Department treated plaintiff at the precinct. The medical
evaluation lasted approximately thirty minutes and included
checks of plaintiff's breathing, skin, temperature, and vitals, as
well as head-to-toe and neurological assessments. The EMTs
also applied wound dressings. The EMTs did not perform
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any exam that involved palpating any body parts, which
they would do only when an individual makes a specific
complaint of injury. Nor did the EMTs remove plaintiff's
clothing because standard practice is to not remove a patient's
clothing unless the patient asked for them to do so or they had
express permission.
*3 According to the EMTs’ report, plaintiff suffered “soft
tissue injuries.” (Krause Decl. Ex. Q at ECF 2). Plaintiff
did not tell the EMTs that he suffered an injury to his groin
area, and he declined to be transported to a hospital for
further medical treatment. However, plaintiff refused to sign
a document stating that he declined medical treatment.
The federal defendants were present during the EMTs’
evaluation.
III. Transfer of Custody
Frank and Grogan brought plaintiff to the Sex Offender
Management Unit (“SOMU”) at 100 Centre Street in
Manhattan. Plaintiff did not request medical treatment during
the drive from Queens to Manhattan. Around 6:30 a.m., Frank
called D'Agata to inform him they had plaintiff in custody.
Frank and Grogan turned plaintiff over to Costales at SOMU.
Plaintiff testified he spoke with only one law enforcement
officer, an individual he described as “short, chubby, maybe
like my height [5’6”], real chubby.” (Pl. Dep. at 102). Plaintiff
claims he told that officer—whom he identifies as Costales
—he was in pain and required medical attention, and that his
request was denied. Plaintiff testified he did not get medical
attention at SOMU and was told he could go to the hospital
after he was released.
Plaintiff's physical description of the law enforcement officer
whom he identifies as Costales does not match Costales's
description of himself. Costales claims he is six feet and two
inches tall. (Doc. #108 (“Costales Decl.”) ¶ 3). Moreover,
Frank, Grogan, and Costales all testified that they each spent
no more than fifteen minutes at SOMU.
IV. Transport to Liberty
Plaintiff remained at SOMU from 7:30 a.m. to about 8:00
p.m., when he was picked up by Liberty Police Department
Detectives D'Agata and Hess. The Liberty defendants drove
plaintiff to Liberty, New York, approximately a two-hour
drive. During the drive, plaintiff asserts he asked to be taken
to the hospital, but that request was denied. The Liberty
defendants dispute this assertion and maintain they asked
plaintiff if he wanted to go to the hospital, but that plaintiff
declined. (Doc. #112 (“Varga Decl.”) Ex. K (“D'Agata Dep.”)
at 49). The Liberty defendants drove plaintiff to the Liberty
police station.
At the police station, the Liberty defendants read plaintiff his
Miranda rights and interviewed plaintiff. Before the interview
began, however, plaintiff “said he was in pain, and he pointed
to his abdominal stomach area” and “lifted his shirt,” at which
point the Liberty defendants saw plaintiff's bruises. (Varga
Decl. Ex. L (“Hess Dep.”) at 42). The Liberty defendants
then interviewed plaintiff for approximately twenty-seven
minutes.
The Liberty defendants assert that after plaintiff showed them
his bruises, plaintiff told them he would see a doctor after he
was released from custody. However, plaintiff insists he asked
for medical care and his request was denied.
V. Medical Attention
After about an hour at the police station, plaintiff was
transferred to the Sullivan County Jail, arriving after midnight
on February 20, 2015. There, it was determined plaintiff
should be transferred to Catskill Regional Medical Center
for treatment. According to an admission note at Catskill
Regional Medical Center, plaintiff “injured his toes while
attempting to elude the police while barefoot” and the injuries
to his “groin, back, and right hand were the result of the
physical altercation with the police.” (Krause Decl. Ex. R at
ECF 6).
*4 At 8:56 a.m. that same morning, plaintiff was transferred
and admitted to Albany Medical Center, where he was
diagnosed with rhabdomyolysis, a right groin hematoma, and
an injury to his right testicle. (Krause Decl. Ex. R at ECF 3).
The urologist, Dr. Robert C. Welliver, indicated “[b]y the time
we were consulted, the testis was not viable as it had been
well over 4 hours since his injury.” (Krause Decl. Ex. R at
ECF 4). Plaintiff remained at Albany Medical Center until
February 24, 2015, after which he was transferred back to
Sullivan County Jail.
Plaintiff's right testicle returned to normal blood flow
by March 9, 2015. (Krause Decl. Ex. S at ECF 2).
Defendants’ expert Dr. Arnold Melman attributed the healing
to plaintiff's medical treatment being done “rapidly and
appropriately.” (Varga Decl. Ex. X at ECF 3). Plaintiff
disputes this assessment.
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DISCUSSION
I. Legal Standard
The Court must grant a motion for summary judgment if
the pleadings, discovery materials before the Court, and any
affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). 4
A fact is material when it “might affect the outcome of the suit
under the governing law.... Factual disputes that are irrelevant
or unnecessary” are not material and thus cannot preclude
summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
A dispute about a material fact is genuine if there is sufficient
evidence upon which a reasonable jury could return a verdict
for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. The Court “is not to resolve disputed
issues of fact but to assess whether there are any factual issues
to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60
(2d Cir. 2010). It is the moving party's burden to establish the
absence of any genuine issue of material fact. Zalaski v. City
of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010).
If the non-moving party has failed to make a sufficient
showing on an essential element of his case on which he has
the burden of proof, then summary judgment is appropriate.
Celotex Corp. v. Catrett, 477 U.S. at 323. If the non-
moving party submits “merely colorable” evidence, summary
judgment may be granted. Anderson v. Liberty Lobby, Inc.,
477 U.S. at 249–50. The non-moving party “must do more
than simply show that there is some metaphysical doubt as to
the material facts, and may not rely on conclusory allegations
or unsubstantiated speculation.” Brown v. Eli Lilly & Co.,
654 F.3d 347, 358 (2d Cir. 2011). The mere existence of a
scintilla of evidence in support of the non-moving party's
position is likewise insufficient; there must be evidence on
which the jury could reasonably find for him. Dawson v. Cty.
of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
On summary judgment, the Court construes the facts, resolves
all ambiguities, and draws all permissible factual inferences
in favor of the non-moving party. Dallas Aerospace, Inc. v.
CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there
is any evidence from which a reasonable inference could be
drawn in favor of the non-moving party on the issue on which
summary judgment is sought, summary judgment is improper.
See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line,
Inc., 391 F.3d 77, 82–83 (2d Cir. 2004).
*5 In deciding a motion for summary judgment, the Court
need only consider evidence that would be admissible at trial.
Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d
736, 746 (2d Cir. 1998).
II. Failure to Intervene Claim
A. Bivens Standard
The federal defendants argue the Supreme Court's recent
decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), precludes
a private right of action under Bivens for failure to intervene
when excessive force was used to effectuate an arrest, and that
plaintiff's claim against them should therefore be dismissed. 5
The Court agrees.
“For a plaintiff to enforce his constitutional rights he must
have a cause of action. That is, there must be a statute passed
by Congress or a judicially implied claim for relief.” Rivera v.
Samilo, 370 F. Supp. 3d 362, 366 (E.D.N.Y. 2019). Because
plaintiff cannot identify a statute to prosecute this action, the
question remains “whether there is a judicially implied claim
for relief.” Id.
“In Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388
(1971), the Supreme Court recognized an implied private
action for damages against federal officers alleged to have
violated a citizen's constitutional rights.” McGowan v. United
States, 825 F.3d 118, 123 (2d Cir. 2016). Specifically, the
Court implied a private right of action under the Fourth
Amendment for an unreasonable search and seizure claim
against FBI agents for handcuffing a man in his own home
without a warrant. Rivera v. Samilo, 370 F. Supp. 3d at 366
(discussing Bivens v. Six Unknown Narcotics Agents, 403
U.S. at 389, 397).
Since Bivens, the Supreme Court has recognized a damages
remedy for constitutional violations in only two other
contexts: (1) under the Fifth Amendment's Due Process
Clause for gender discrimination against a congressman for
firing his female secretary, Davis v. Passman, 442 U.S. 228,
99 (1979), and (2) under the Eighth Amendment's prohibition
on cruel and unusual punishment against prison officials for
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failure to treat an inmate's asthma which led to his death,
Carlson v. Green, 446 U.S. 14 (1980).
Recently, the Supreme Court emphasized that “[t]hese three
cases—Bivens, Davis, and Carlson—represent the only
instances in which the Court has approved of an implied
damages remedy under the Constitution itself.” Ziglar v.
Abbasi, 137 S. Ct. at 1855. The Abassi Court expressed
the need for restraint in expanding the Bivens remedy to
additional contexts and cautioned that courts should not
imply rights and remedies pursuant to Bivens as a matter of
course. Id. at 1856–57. Indeed, “the Court has made clear that
expanding the Bivens remedy is now a ‘disfavored’ judicial
activity.” Id. at 1857.
*6 The Supreme Court set out a two-step inquiry for courts
to determine whether to infer a Bivens cause of action in a
new context or against a new category of defendants. “First,
the court must determine whether a plaintiff's claims arise in
a new Bivens context.” Rivera v. Samilo, 370 F. Supp. 3d
at 367. “If the case is different in a meaningful way from
previous Bivens cases decided by [the Supreme Court], then
the context is new.” Ziglar v. Abbasi, 137 S. Ct. at 1859.
The Court provided some examples of ways in which a case
“might differ in a meaningful way” including:
[T]he rank of the officers involved;
the constitutional right at issue; the
generality or specificity of the official
action; the extent of judicial guidance
as to how an officer should respond
to the problem or emergency to be
confronted; the statutory or other
legal mandate under which the officer
was operating; the risk of disruptive
intrusions by the Judiciary into the
functioning of other branches; or
the presence of special factors that
previous Bivens cases did not consider.
Ziglar v. Abbasi, 137 S. Ct. at 1860.
“Second, if the claim arises in a new context, a court
must consider whether there are special factors counseling
hesitation in creating a Bivens remedy.” Ramirez v. Tatum,
2018 WL 6655600, at *5 (S.D.N.Y. Dec. 19, 2018) (citing
Ziglar v. Abbasi, 137 S. Ct. at 1857), reconsideration denied,
2019 WL 2250339 (S.D.N.Y. May 24, 2019). “The question
of what special factors counsel hesitation ‘must concentrate
on whether the Judiciary is well suited, absent congressional
action or instruction, to consider and weigh the costs and
benefits of allowing a damages action or proceed.’ ” Id.
(citing Ziglar v. Abbasi, 137 S. Ct. at 1857–58). “Thus, to
be a ‘special factor counselling hesitation,’ a factor must
cause a court to hesitate before answering that question in the
affirmative.” Id. (citing Ziglar v. Abbasi, 137 S. Ct. at 1858).
“[I]f there is an alternative remedial structure present in a
certain case, that alone may limit the power of the Judiciary
to infer a new Bivens cause of action.” Ziglar v. Abbasi, 137
S. Ct. at 1858).
Few courts in this Circuit have considered a plaintiff's Bivens
claim for excessive force in effectuating an arrest with a
warrant post-Abassi. In Lehal v. Cent. Falls Det. Facility
Corp., 2019 WL 1447261, at *11 (S.D.N.Y. Mar. 15, 2019), a
district court reasoned that because the case “directly involved
a Fourth Amendment claim that the arresting federal agents
had used unreasonable force in arresting the plaintiff” the
claim did not present a new Bivens context. Next the Lehal
court found several other Abbasi factors similarly weighed
in favor of this determination such as the type of federal
officers (i.e., arresting agents), who carried out the same type
of official action, and the substantial judicial guidance as to
the unconstitutionality of employing excessive force in the
course of an arrest. Id. at *11. The Lehal court concluded
it was not apparent that allowing plaintiff to proceed on
excessive-force claims “would risk disruptive intrusion by the
Judiciary into the functioning of other branches,” or that such
a finding would “erode legitimate distinctions between Fourth
Amendment claims that fall within the contours of the Bivens
decision and those that do not.” Id. (citing Ziglar v. Abbasi,
137 S. Ct. at 1860). 6
*7 However, in Rivera v. Samilo, 370 F. Supp. 3d at 369,
a district court performed a similar analysis on an excessive
force claim involving DEA agents and refused to recognize a
Bivens remedy for a “claim aris[ing] from the force allegedly
applied in making a lawful street arrest.” There, the court
determined that the claim presented a new Bivens context, as
it differed meaningfully from Bivens, notably that the arrest
did not take place in plaintiff's home and therefore did not
implicate plaintiff's privacy rights. Id. at 369. The court then
found that special factors counseled against recognizing a
new Bivens claim. Id. at 369–70.
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Other courts have left open the question of whether excessive
force and failure to intervene claims present a new Bivens
context. See, e.g., Ojo v. United States, 2019 WL 3852391,
at *13 (E.D.N.Y. Aug. 15, 2019), report and recommendation
adopted, 2019 WL 4602823 (E.D.N.Y. Sept. 23, 2019);
Johnson v. O'Connell, 2018 WL 5085702, at *13 (S.D.N.Y.
Oct. 17, 2018).
B. Application
The Court declines to find a Bivens remedy for plaintiff's
claim against the federal defendants for failure to intervene.
Concerning the first step in the new Bivens analysis, there
is a meaningful difference between Bivens and plaintiff's
allegations. First, the officers in this case operated under a
different legal mandate than the officers in Bivens. Ziglar v.
Abbasi, 137 S. Ct. at 1860. Bivens involved a warrantless
arrest and search of the plaintiff's home, whereas this case
involves an arrest made pursuant to a warrant, outside
plaintiff's home. Second, the type of officers involved in
Bivens were DEA agents, whereas here the officers were
appointed members of a federal task force. Third, the Court
in Bivens reasoned that the right at issue was primarily a
Fourth Amendment right to privacy, Bivens v. Six Unknown
Narcotics Agents, 403 U.S. at 389, whereas here the Fourth
Amendment right plaintiff asserts is to be free from excessive
force. And fourth, plaintiff's theory of liability is based on
Frank and Grogan's alleged failure to intervene rather than the
underlying excessive force violation.
As for the second step, special factors counsel hesitation
in creating a new Bivens remedy. Plaintiff clearly had
multiple alternatives to bringing a Bivens claim. Plaintiff
could have pursued his claim under the Federal Tort Claims
Act (“FTCA”). See Rivera v. Samilo, 370 F. Supp. 3d at 369–
70. In addition, he could have sought relief in state court. Id.
at 370. Given these alternative remedial structures, the Court
declines to infer a new Bivens cause of action for failure to
intervene.
Accordingly, plaintiff's failure to intervene claim against
Frank and Grogan fails as a matter of law.
III. Deliberate Indifference to Medical Needs Claim
The federal and Liberty defendants argue plaintiff fails as a
matter of law to establish a claim for deliberate indifference
to medical needs.
The Court agrees with the federal defendants but disagrees
with the Liberty defendants.
A. Legal Standard
Plaintiff was a pretrial detainee at the time of his arrest.
Deliberate indifference to medical needs claims brought by
pretrial detainees against state actors under Section 1983 are
analyzed under the Fourteenth Amendment's Due Process
Clause, rather than the Eighth Amendment 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.’ ” Darnell v. Pineiro, 849 F.3d at 29 (quoting
Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007)). Likewise,
deliberate indifference to medical needs claims brought
against federal actors under Bivens are analyzed under the
Fifth Amendment's Due Process Clause. Laurent v. Borecky,
2018 WL 2973386, at *4 (E.D.N.Y. June 12, 2018) (rejecting
argument that a pretrial detainee's Fifth Amendment due
process claim arises in a new Bivens context).
*8 To succeed on a claim of constitutionally inadequate
medical care, a plaintiff must make a sufficient showing of
“acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429
U.S. 97, 106 (1976).
To establish a claim for deliberate indifference to serious
medical needs, a plaintiff must satisfy a two-prong test
comprising an objective prong and a mens rea prong. Darnell
v. Pineiro, 849 F.3d at 29 (“the elements for establishing
deliberate indifference under the Fourteenth Amendment
[are] the same as under the Eighth Amendment”). Namely,
plaintiff must establish “the challenged conditions were
sufficiently serious,” and defendants “acted with at least
deliberate indifference to the challenged conditions.” Id.
For the objective prong, a pretrial detainee must establish
the challenged conditions “either alone or in combination,
pose[d] an unreasonable risk of serious damage to his health.”
Darnell v. Pineiro, 849 F.3d at 30 (quoting Walker v. Schult,
717 F.3d 119, 125 (2d Cir. 2013)). “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)).
In the context of medical care, two inquiries determine
whether a deprivation is objectively serious. “The first inquiry
is whether the prisoner was actually deprived of adequate
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medical care.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d
Cir. 2006). Because “the prison official's duty is only to
provide reasonable care,” prison officials are liable only
if they fail “ ‘to take reasonable measures’ in response
to a medical condition.” Id. at 279–80 (quoting Farmer v.
Brennan, 511 U.S. 825, 847 (1994)).
The second inquiry is “whether the inadequacy in medical
care is sufficiently serious.” Salahuddin v. Goord, 467 F.3d
at 280. If the allegedly offending conduct “is a failure to
provide any treatment for an inmate's medical condition,
courts examine whether the inmate's medical condition is
sufficiently serious.” Id. If the offending conduct is the
“medical treatment given,” however, “the seriousness inquiry
is narrower.” Id. When “the prisoner is receiving appropriate
on-going treatment for his condition,” and brings a “denial of
medical care claim based on a temporary delay or interruption
in treatment,” courts look to “the severity of the temporary
deprivation alleged by the prisoner,” not “the severity of the
prisoner's underlying medical condition.” Smith v. Carpenter,
316 F.3d 178, 186 (2d Cir. 2003).
To satisfy the mens rea prong, a pretrial detainee must
sufficiently show defendants “recklessly failed to act with
reasonable care to mitigate the risk that the condition posed
to the pretrial detainee even though the [defendants] knew, or
should have known, that the condition posed an excessive risk
to health or safety.” Darnell v. Pineiro, 849 F.3d at 35. The
mens rea prong “is defined objectively” and “can be violated
when an official does not have subjective awareness that
the official's acts (or omissions) have subjected the pretrial
detainee to a substantial risk of harm.” Id.
B. Application
*9 Here, no reasonable juror could conclude Frank or
Grogan deprived plaintiff of adequate medical treatment.
Following plaintiff's arrest, Frank and Grogan brought him
to the 104th Precinct, five minutes away, where plaintiff was
immediately treated by the EMTs. The medical evaluation
lasted approximately thirty minutes and included checks of
plaintiff's breathing, skin, temperature, and vital signs, as well
as head-to-toe and neurological assessments. The EMTs also
applied wound dressings. Moreover, plaintiff does not allege
he requested further medical attention during the two car rides
with Frank and Grogan—from Morales's home to the precinct
and then from the precinct to SOMU. Further, plaintiff did
not tell Frank or Grogan he suffered injuries to his groin and
testicles.
Accordingly, the deliberate indifference claim against Frank
and Grogan fails. The undisputed facts demonstrate Frank and
Grogan provided plaintiff with adequate medical care.
Likewise, no reasonable juror could conclude Costales
deprived plaintiff of adequate medical treatment. Costales,
like Frank and Grogan, was present for the EMT evaluation
at the 104th Precinct. Costales then took custody of plaintiff
after he was transferred to SOMU. Although Costales stated
he spent no more than fifteen minutes at SOMU, plaintiff
claims he told an officer—whom he identifies as Costales—
he was in pain and required medical attention, and that his
request was denied. However, plaintiff's physical description
of the officer he spoke to does not match Costales's
description of his appearance. 7
Thus, the record evidence does not support a finding that
Costales deprived plaintiff of adequate medical care.
However, construing the facts and drawing all reasonable
inferences in plaintiff's favor, the Court concludes that a
reasonable juror could find that the Liberty defendants
deliberately denied or unreasonably delayed plaintiff's
medical treatment. First, plaintiff may be able to satisfy the
objective prong. As a preliminary matter, the parties dispute
whether the Liberty defendants offered plaintiff medical care
at all. Moreover, there is evidence that plaintiff's condition
was sufficiently serious. Even though defendants’ expert, Dr.
Melman, reported plaintiff's injuries were not permanent and
have not prevented him from fathering a child, plaintiff has
provided evidence, such as the contemporaneous statements
of Albany Medical's Dr. Welliver, that the delay of more than
four hours in treatment could have caused irreparable harm.
Smith v. Carpenter, 316 F.3d at 186 (in a claim for “denial of
medical care claim based on a temporary delay” courts look
to “the severity of the temporary deprivation alleged by the
prisoner.”).
Second, plaintiff may be able to satisfy the mens rea prong
as well. The Liberty defendants drove plaintiff from SOMU
to Liberty, New York, two hours away. Plaintiff testified he
repeatedly asked for medical attention and requested to be
taken to a hospital. The Liberty defendants dispute this claim
and insist they asked plaintiff if he needed to go to the hospital
and he said no. Yet prior to his interview at the Liberty
police station, plaintiff told the Liberty defendants “he was
in pain, and he pointed to his abdominal stomach area” and
“lifted his shirt,” at which point the Liberty defendants saw
the bruises. (Hess Dep. at 42). Plaintiff testified he told the
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Liberty defendants he was kicked in the groin. Nevertheless,
the Liberty defendants held plaintiff for at least an hour and
proceeded to conduct an interview with plaintiff, which lasted
approximately twenty-seven minutes.
*10 After the interview, instead of being taken for
medical treatment, plaintiff was taken to the Sullivan County
Jail. Shortly after he arrived at the jail, plaintiff was
transferred to Catskill Regional Medical Center, and then
on to Albany Medical Center for medical treatment. Thus,
a reasonable juror could conclude that the approximately
four hour window from when the Liberty defendants took
custody of plaintiff at SOMU to when he was transferred
to Sullivan County Jail constituted an unreasonable delay
in medical care, and these defendants were deliberately
indifferent to plaintiff's medical needs despite plaintiff's
repeated complaints and visible injuries.
Accordingly, there is sufficient admissible evidence in the
record from which a reasonable juror could conclude D'Agata
and Hess were deliberately indifferent to plaintiff's medical
needs.
IV. Qualified Immunity
The Liberty defendants argue they are entitled to qualified
immunity.
The Court disagrees.
Qualified immunity shields government officials whose
conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The scope of qualified immunity is broad, and it protects
“all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
“A qualified immunity defense is established if (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.” Salim v. Proulx, 93
F.3d 86, 89 (2d Cir. 1996).
In the context of an inadequate medical care claim, “to
establish their qualified immunity defense, the defendants
must show that it was objectively reasonable for them to
believe that they had not acted with the requisite deliberate
indifference.” Odom v. Kerns, 2008 WL 2463890, at *13
(S.D.N.Y. June 18, 2008) (citing McKenna v. Wright, 386
F.3d 432, 437 (2d Cir. 2004)).
Here, as explained above, there are genuine material issues
of fact as to whether the Liberty defendants were deliberately
indifferent to plaintiff's medical needs, and whether their
decision to bring plaintiff to the police station for questioning
and then to jail rather than to a hospital or for medical
treatment constituted deliberate indifference. Thus, summary
judgment in favor of the Liberty defendants on the basis of
qualified immunity is inappropriate.
CONCLUSION
Defendants Frank, Grogan, and Costales's motion for
summary judgment is GRANTED.
Defendants D'Agata and Hess's motion for summary
judgment is DENIED.
Plaintiff's Section 1983 Fourteenth Amendment claim against
D'Agata and Hess for deliberate indifference to medical needs
will proceed. Plaintiff's claims against Frank, Grogan, and
Costales are dismissed.
The Court will conduct a status conference on January
27, 2020, at 2:30 p.m. at which time the Court will set
a trial date and a schedule for pretrial submissions. To
conserve resources, to promote judicial efficiency, and in
an effort to achieve a faster disposition of this case, the
parties, prior to that date, are directed to discuss whether
they are willing to consent, under 28 U.S.C. § 636(c), to
conduct all further proceedings, including trial, before the
assigned Magistrate Judge.
The Clerk is instructed to terminate the motions. (Docs.
##103, 110).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 6895436
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Footnotes
1 Plaintiff claims he reported his change of address but also concedes the validity of the arrest warrant is not
at issue here. (Doc. #119 (“Pl. Br.”) at 31).
2 “Doc. #____ at ECF____” refers to the page numbers automatically assigned by the Court's Electronic Case
Filing system. “Pl. Dep. #____” refers to the to the page numbers in the top right of the transcript of plaintiff's
deposition.
3 Kurzhals testified Grogan and Canario appeared after he had apprehended plaintiff, but he could not recall
who helped him place handcuffs on plaintiff. (Kurzhals Dep. at 44–45).
4 Unless otherwise indicated, case quotations omit all internal citations, quotations, footnotes, and alterations.
5 Plaintiff argues the defendant task force members are not in fact federal defendants. The Court rejects this
assertion. The task force members were appointed Special Deputy Marshals for the federal task force at
the relevant times. The Court finds defendants Frank and Grogan were “acting in the capacity of a federal
employee because of [their] involvement on the task force”; therefore, “Bivens is the appropriate jurisdictional
basis for this action.” Aikman v. Cty. of Westchester, 691 F. Supp. 2d 496, 499 (S.D.N.Y. 2010). See also
Ochoa v. Bratton, 2017 WL 5900552, at *6 (S.D.N.Y. Nov. 28, 2017); Hester-Bey v. Donaruma, 2017 U.S.
Dist. LEXIS 43378, *8, 2017 WL 1148613 (E.D.N.Y. Mar. 23, 2017).
6 The Lehal court did not reach a determination of whether defendants “could be held liable on a Bivens claim
based on any alleged failure to intervene in the claimed use of force by [another defendant].” Lehal v. Cent.
Falls Det. Facility Corp., 2019 WL 1447261, at *17.
7 Nor does plaintiff argue that he cannot identify the individual who allegedly deprived him medical care while
at SOMU. Instead plaintiff insists he “spoke at SOMU with defendant Costales, though, at his deposition, he
did not know this officer's name.” (Doc. #117, ¶¶ 64–67).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Mirvis v. Quay, Not Reported in Fed. Supp. (2023)
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2023 WL 5671935
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Ruslan MIRVIS, Plaintiff,
v.
Herman QUAY, Warden; Eleazar Garcia, Associate
Warden; Jonathan White, Captain; “John”
Poe, Lieutenant; “John” Metzger, Lieutenant;
“John” Calixte, Correction Officer; “John Doe”
#1-3, Correction Officers; “G.” Gonzalez,
Correction Officer; “Jane Doe,” Correction
Officer; and Maury “Doe,” Counselor, Defendants.
19-CV-2573 (LDH) (VMS)
|
Signed September 1, 2023
Attorneys and Law Firms
Philip M. Hines, Uri Nazryan, Held & Hines, LLP, Brooklyn,
NY, for Plaintiff.
Sean Patrick Greene-Delgado, United States Attorney's
Office, Brooklyn, NY, for Defendant Federal Bureau of
Prisons.
Matthew Modafferi, Frier Levitt LLC, New York, NY, Sean
Patrick Greene-Delgado, United States Attorney's Office,
Brooklyn, NY, Kimberly Francis, DOJ-USAO, Brooklyn,
NY, for Defendants Lieutenant Poe, Lieutenant Metzger,
“John” Calixte.
MEMORANDUM AND ORDER
LaSHANN DeARCY HALL, United States District Judge:
*1 Ruslan Mirvis (“Plaintiff”) brings the instant action
asserting Bivens claims against former Warden Herman
Quay, Associate Warden Eleazar Garcia, Captain Jonathan
White, former Lieutenant Thomas Pope, Lieutenant
Veronica Metzger, Senior Officer Specialist Pierre Calixte,
Correctional Counselor Lawrence Murray, and former
Correctional Officer George Gonzalez 1 (collectively,
“Defendants”) for violations of his rights, privileges,
and immunities under the Fifth, Eighth, and Fourteenth
Amendments of the United States Constitution. Defendants
move pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. 2
BACKGROUND 3
I. June 6 – July 7, 2017 Sexual Assaults
Plaintiff was a pretrial detainee at MDC Brooklyn. (Am.
Compl. ¶ 9, ECF No. 26.) On a daily basis, between June
6, 2017, and July 7, 2017, Plaintiff was sexually threatened,
abused, and assaulted by two inmates in the J-72 housing
area. (Id. ¶ 28.) During this period, the two inmates frequently
used objects to sexually assault Plaintiff. (Id. ¶ 33.) Typically,
one inmate would restrain Plaintiff while the other would
beat him and insert an object into Plaintiff's anus. (Id. ¶ 33.)
During this time, the same inmates demanded that Plaintiff
direct his family to deposit money into their respective
MDC Brooklyn commissary accounts. (Id. ¶ 34.) Plaintiff
acquiesced to their demands out of fear, and, over time,
Plaintiff directed his family to deposit thousands of dollars
into the inmates’ accounts. (Id.) Eventually, Plaintiff refused
because his family could no longer afford any payments. (Id.
¶ 35.)
On July 7, 2017, the two inmates attacked Plaintiff and
sodomized him with a broomstick (the “July 7 attack”). (Id.
¶ 36.) During the attack, Plaintiff screamed out to officers for
help but did not receive a response. (Id.) Following the attack,
Plaintiff returned to his cell and pushed the panic button. (Id.
¶ 37.) Correctional Officer (“C.O.”) John Doe 1 arrived, and
Plaintiff reported the attack to him. (Id.) Following, C.O. John
Doe 1 informed Plaintiff he would “be right back” but did not
return. (Id.) Throughout that evening, Plaintiff continued to
cry out for help and eventually a correctional officer escorted
Plaintiff to an “SIS location.” (Id. ¶ 38.) There, Plaintiff
informed Defendant Lt. Pope, the supervisor in charge of the
SIS location, what had occurred and informed him of his need
for urgent medical attention. (Id.) Defendant Lt. Metzger was
also present and mockingly told Plaintiff that he should “learn
to defend himself.” (Id. ¶¶ 39–40.) Neither Defendants Lt.
Pope or Lt. Metzger offered immediate medical or mental
health care to Plaintiff, nor did they arrange for Plaintiff to
receive such care. (Id. ¶¶ 38, 40.)
*2 Eventually, Plaintiff was escorted to a medical unit where
pictures and X-Rays were taken of his injuries, and he was
provided aspirin. (Id. ¶ 41.) Following, he was placed in a
special housing unit (“SHU”). (Id.) Plaintiff spent at least one
month in the SHU, and during that time, Plaintiff repeatedly
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complained to C.O. John Doe 2 of continuing pain and
swelling to his ribs and swelling of his mouth. (Id. ¶ 42.) C.O.
John Doe 2 ignored Plaintiff's complaints. (Id.) A month later,
Plaintiff was informed that he sustained three fractured ribs
and needed an extraction of his tooth. (Id. ¶ 43.)
Additionally, during the June 6, 2017, to July 7, 2017 period,
Plaintiff informed C.O. Gonzalez approximately five to six
times, Counselor Maury two to three times, and C.O. Jane
Doe twice that he was being sexually abused and threatened
by the two inmates. 4 (Id. ¶ 48.) In response, Defendant C.O.
Gonzalez told Plaintiff that this is what happens in prison
and suggested he beat his attackers with a “lock in a sock”
next time they come after him. (Id.) Plaintiff also sent at least
85 emails to Defendants Warden Quay, Associate Warden
Garcia, Cpt. White, and other MDC Brooklyn staff. (Id. ¶
49.) Defendants failed to provide adequate responses to his
emails, investigate the allegations, separate Plaintiff from his
two attackers, or take any action to remedy the situation. (Id.
¶ 50.)
According to the amended complaint, the two inmates who
assaulted Plaintiff were known by Defendants to be violent
gang members who were involved in other incidents while
at MDC Brooklyn and no remedial action was taken. (Id. ¶¶
28-30.) Specifically, Defendants were aware the two inmates
extorted and sexually abused another inmate assigned to the
J-72 unit. (Id. ¶ 31.) Nonetheless, no action was taken against
the inmates. (Id.)
II. January 27 – February 3, 2019 Power Outage
From about January 27, 2019, through February 3, 2019,
MDC Brooklyn underwent a power outage. (Id. ¶ 44.) During
that time, MDC Brooklyn did not have heat, hot water, or
electricity and Plaintiff was repeatedly denied medical care by
the MDC staff. (Id.) On or about February 5, 2019, Plaintiff
reported to Defendants C.O. Calixte and Lt. Metzger that he
was experiencing numbness to his left side and that he had
vomited blood. (Id. ¶ 45.) In response, Defendant Lt. Metzger
told Plaintiff, he was “sick in the head.” (Id.) Plaintiff was
eventually taken to the hospital and diagnosed with a hole
in his stomach and pinched nerve. (Id. ¶ 46.) Plaintiff was
confined to the hospital for at least three days. (Id.)
STANDARD OF REVIEW
To withstand a Rule 12(b)(6) motion to dismiss, a complaint
“must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
is facially plausible when the alleged facts allow the court
to draw a “reasonable inference” of a defendant's liability
for the alleged misconduct. Id. While this standard requires
more than a “sheer possibility” of a defendant's liability, id.,
“[i]t is not the Court's function to weigh the evidence that
might be presented at trial” on a motion to dismiss. Morris v.
Northrop Grumman Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y.
1999). Instead, “the Court must merely determine whether the
complaint itself is legally sufficient, and, in doing so, it is well
settled that the Court must accept the factual allegations of the
complaint as true.” Id. (citations omitted).
DISCUSSION
I. Failure to Exhaust
*3 Defendants urge the Court to dismiss the amended
complaint on the grounds that Plaintiff failed to exhaust his
administrative remedies as required by the Prisoner Litigation
Reform Act of 1995 (the “PLRA”). 5 (Defs.’ Mem. L. Supp.
Mot. Dismiss (“Defs.’ Mem.”) at 23-25, ECF No. 65.) The
PLRA provides that a prisoner may not bring an action under
federal law “with respect to prison conditions ... until such
administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a).
In Ross v. Blake, the Supreme Court made clear that
the exhaustion requirements of the PLRA were mandatory
and only subject to limited exceptions. See 136 S. Ct.
1850, 1856 (2016). However, and of particular relevance
here, the Supreme Court recognized that exhaustion can
be mandated only where “[administrative] remedies [are]
indeed [ ] ‘available’ to the prisoner.” Id. Following Ross,
the Second Circuit found that administrative remedies could
be unavailable to inmates under three circumstances. See
Williams v. Correction Officer Priatno, 829 F.3d 118, 123
(2d Cir. 2016). First, an administrative remedy is unavailable
when “it operates as a simple dead end—with officers unable
or consistently unwilling to provide any relief to aggrieved
inmates.” Id. (quoting Ross, 136 S. Ct. at 1859). Second, “an
administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use.” Id. Put differently,
“some mechanism exists to provide relief, but no ordinary
prisoner can discern or navigate it.” Id. at 123–24 (quoting
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Ross, 136 S. Ct. at 1856). Third, an administrative remedy
may be unavailable “when prison administrators thwart
inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 124
(quoting Ross, 136 S. Ct. at 1860). Importantly, “failure to
exhaust administrative remedies is an affirmative defense
under the PLRA, not a pleading requirement” and, thus,
“inmates are not required to specially plead or demonstrate
exhaustion in their complaints.” Williams, 829 F.3d at 122
(quoting Jones v. Bock, 549 U.S. 199, 216 (2007)). That said,
“a district court still may dismiss a complaint for failure
to exhaust administrative remedies if it is clear on the face
of the complaint that the plaintiff did not satisfy the PLRA
exhaustion requirement.” Id. (citing Jones, 549 U.S. at 215).
Here, the Court declines to dismiss Plaintiff's claims for
failure to exhaust. Plaintiff's amended complaint does not
itself contain any allegations that would make it clear that the
PLRA exhaustion requirement was not satisfied. Rather, the
amended complaint alleges Plaintiff sent at least 85 emails
to Defendants Warden Quay, Captain Garcia, Captain White,
and numerous other MDC Brooklyn staff. (Am. Compl. ¶
49.) Plaintiff further alleges the staff provided inadequate
responses, failed to investigate, and failed to separate Plaintiff
from his two attackers. (Id. ¶ 50.)
II. Plaintiff's Deliberate Indifference Claims Under
Bivens
In Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, the Supreme Court, for the first time,
recognized a constitutional cause of action for damages
against federal officers. 403 U.S. 388 (1971). Specifically,
the Supreme Court held that a plaintiff may sue federal
officers in their individual capacities for violating her Fourth
Amendment protection against unreasonable searches and
seizures. Id. at 389, 395–97. In doing so, the Supreme Court
“held that courts must ‘adjust their remedies so as to grant
the necessary relief’ when ‘federally protected rights have
been invaded.’ ” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855
(2017) (quoting Bivens, 403 U.S. at 392). Consistent with
its holding in Bivens, the Supreme Court later found implied
rights of action and granted Bivens remedies in two additional
contexts: one where a plaintiff alleged gender discrimination
in violation of the Fifth Amendment's Due Process Clause,
Davis v. Passman, 442 U.S. 228 (1979), and the other where
a plaintiff complained of deliberate indifference to medical
needs in violation of the Eighth Amendment, Carlson v.
Green, 446 U.S. 14 (1980). The Supreme Court has not
explicitly extended Bivens to other contexts in the ensuing
forty years. Indeed, in Ziglar v. Abbasi, the Supreme Court
made plain that Bivens would not operate as the “substantial
equivalent of 42 U.S.C. § 1983” to permit recovery in any
new context and new category of defendant. 137 S. Ct. at 1855
(internal quotation marks omitted). Instead, the Supreme
Court noted a change in its approach to recognizing implied
causes of action, now clearly disfavoring extending Bivens to
“new context[s].” Id. at 1864.
*4 When determining whether Bivens is being extended into
such a new context, the Supreme Court has indicated that,
while not exhaustive, factors that might be instructive include:
[T]he rank of the officers involved;
the constitutional right at issue; the
generality or specificity of the official
action; the extent of judicial guidance
as to how an officer should respond
to the problem or emergency to be
confronted; the statutory or other
legal mandate under which the officer
was operating; the risk of disruptive
intrusion by the Judiciary into the
functioning of other branches; or the
presence of potential special factors
that previous Bivens cases did not
consider.
Id. at 1860.
A. Plaintiff's Deliberate Indifference
to His Serious Medical Needs Claims
1. Availability of a Remedy Under Bivens
Plaintiff alleges Defendants were deliberately indifferent to
his serious medical needs arising out of the July 7 attack and
the February 2019 blackout at MDC Brooklyn (collectively,
the “deliberate medical indifference claims”). (Pl.’s Mem.
at 12–21.) In response, Defendants argue that, by nature
of Plaintiff's pre-trial status and other factual distinctions,
recognizing such a claim would extend Bivens to a new
context. (Defs.’ Mem. at 7.) The Court disagrees with
Defendants.
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In Carlson v. Greene, the Supreme Court held that the
Eighth Amendment's prohibition against cruel and unusual
punishment gave an inmate a damages remedy for failure
to provide adequate medical treatment. See 446 U.S. at
17–18. There, the inmate had a known chronic asthmatic
condition, but, against the advice of doctors, the plaintiff
was nonetheless held in a corrections center with known
inadequate medical facilities. Id. at 16 n.1. And, officials
failed to give him competent medical
attention for some eight hours after he
had an asthmatic attack, administered
contra-indicated drugs which made his
attack more severe, attempted to use
a respirator known to be inoperative
which further impeded his breathing,
and delayed for too long a time his
transfer to an outside hospital.
Id. Ultimately, the alleged failure to provide medical
treatment resulted in the inmate's death. Id.
Similarly, here, as to Plaintiff's deliberate indifference to
medical issues claims, Plaintiff alleges repeated concerns and
complaints related to injuries resulting from ongoing sexual
assaults and at least three specific instances of reporting to
officers who did not immediately provide medical care. (Am.
Compl. ¶¶ 27–33, 37–40.) Plaintiff further alleges reports to
specific officers that he was experiencing numbness to his
left side and vomiting blood. (Id. ¶ 45.) Again, the amended
complaint contains allegations that Plaintiff reported these
medical issues, but the officers failed to act. (Id.) Thereafter,
Plaintiff alleges he experienced severe pain, fractured ribs,
a hole in his stomach, and a pinched nerve. (Id. ¶ 46). In
other words, at base, Plaintiff in the instant action, like the
respondent in Carlson, alleges “federal jailers[ ] fail[ed] to
provide adequate medical treatment[.]” Gonzalez v. Hasty,
755 F. App'x 67, 69 (2d Cir. 2018).
Nonetheless, Defendants maintain that, although the
Supreme Court has previously extended Bivens to an
Eighth Amendment deliberate medical indifference claim
in Carlson, Plaintiff's status as a pretrial detainee requires
his claims be considered under the Fifth Amendment.
(Defs.’ Mem. at 7–8.) Therefore, as Defendants’ argument
goes, Plaintiff's claims arise under a new Bivens context.
(Id.) To be sure, the Supreme Court has not explicitly
recognized a Bivens remedy for deliberate indifference
to serious medical needs under the Fifth Amendment.
However, contrary to Defendants’ contention, that Plaintiff's
claims arise under a different constitutional provision is
not necessarily dispositive as to whether Plaintiff's claims
implicate a new Bivens context.
*5 In Abbasi, the Supreme Court considered a Fifth
Amendment due process claim, brought against a warden
by several pretrial detainees under Bivens for “deliberate
indifference to prisoner abuse.” 137 S. Ct. at 1864. In
determining whether the claim arose under a new Bivens
context, the Court recognized the parallels to Carlson, where
“the Court did allow a Bivens claim for prisoner mistreatment
—specifically, for failure to provide medical care.” Id.
Despite these parallels, the Supreme Court concluded that
plaintiffs sought to extend Bivens in a new context. Id. In
reaching this conclusion, the Supreme Court noted first that
there was a difference in the constitutional right at issue. Id.
Like here, the claim was predicated on the Fifth Amendment,
while Carlson was predicated on the Eighth Amendment. Id.
At least equally important to the Court's calculus was that
the judicial guidance with regard to the plaintiffs’ pretrial
abuse claims at issue was less developed than the legal claim
at issue in Carlson. In particular, the Supreme Court raised
the concern that although “the Court has long made clear
the standard for claims alleging failure to provide medical
treatment to a prisoner ... [t]he standard for a claim alleging
that a warden allowed guards to abuse pre-trial detainees is
less clear under the Court's precedents.” Id. at 1864–65. That
concern is not present here.
In this case, Plaintiff does not bring a pre-trial abuse claim.
Rather, Plaintiff seeks to hold federal officials liable for
damages he sustained as a result of their indifference to his
medical claims as a pretrial detainee. If the claims proceed,
in assessing its sufficiency, the Court would employ the
same analysis that it would have had Plaintiff's claims arose
under the Eighth Amendment. Indeed, the Second Circuit has
noted that “[w]e have often applied the Eighth Amendment
deliberate indifference test to pre-trial detainees bringing
actions under the Due Process Clause of the Fourteenth
Amendment ... [w]e see no reason why the analysis should
be different under the Due Process Clause of the Fifth
Amendment.” Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d. Cir.
2000).
In deciding a Fifth Amendment medical indifference claim,
the Court would ask whether Plaintiff pleaded a sufficiently
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serious medical need and that the official acted with a culpable
state of mind. Compare Cannenier v. Skipper-Scott, 18-
cv-2383, 2019 WL 764795, at *4 (S.D.N.Y. Feb. 20, 2019)
(considering a deliberate indifference to serious medical need
claim under the Eighth Amendment), with Laurent v. Borecky,
No. 17-cv-3300, 2018 WL 2973386, at *5 (E.D.N.Y. June
12, 2018) (considering a deliberate indifference claim brought
under the Fifth Amendment and finding that while “this
case ... presents a different constitutional right at issue ...
it bears an extremely strong resemblance to [one of] the
three Bivens claims the [Supreme] Court has approved in the
past[ ]”) (alternations in original) (internal quotation marks
omitted). In other words, there is clear judicial guidance
on the “standard[s] for alleging failure to provide medical
treatment to a prisoner.” Laurent, 2018 WL 2973386 at *5.
As such, Plaintiff's Bivens claims for deliberate indifference
to serious medical needs under the Fifth Amendment arise in
the same context as the Eighth Amendment claim recognized
in Carlson. In so finding, the Court joins several other district
courts within this circuit to find the same. See, e.g., id.;
Geritano v. AUSA Office for E.D.N.Y., No. 20-cv-0781, 2020
WL 2192559, at *4 (S.D.N.Y. May 5, 2020) (“Courts in
this district have held that a federal pretrial detainee may
bring a medical claim under the Fifth Amendment because
such a claim is the same context as an Eighth Amendment
claim already recognized in Carlson.”); Sisk v. MCC, et
al., No. 20-CV-10293, 2021 WL 412487, at *3 (S.D.N.Y.
Feb. 3, 2021) (“Federal pretrial detainees may bring a Fifth
Amendment claim for failure to provide medical treatment
as a Bivens action because such a claim bears a strong
resemblance to the claim in Carlson”); Martinez v. D'Agata,
No. 16-cv-44, 2019 WL 6895436, at *7 (S.D.N.Y. Dec. 18,
2019) (“Plaintiff was a pretrial detainee at the time of his
arrest .... deliberate indifference to medical needs claims
brought against federal actors under Bivens are analyzed
under the Fifth Amendment's Due Process Clause.”); Morgan
v. Shivers, No. 14-cv-7921, 2018 WL 618451, at *7 n.4
(S.D.N.Y. Jan. 29, 2018) (“The Court notes that, even in
light of the proscription against creating new Bivens remedies,
it would be counterintuitive if a convicted prisoner could
remedy a federal officer's failure to provide medical care
amounting to punishment, but a pre-trial detainee—who,
unlike convicted prisoners, cannot be punished at all, could
not.”) (internal quotation marks omitted).
*6 Certainly, the Court is mindful of the Supreme Court's
recent decision in Egbert v. Boule, which has been interpreted
to significantly constrict the pathway for redress under
Bivens. 142 S. Ct. 1793, 1818 (2022). Indeed, post-Egbert,
at least two district courts have interpreted the current scope
of Bivens to preclude relief for pre-trial detainees alleging
deliberate indifference to their medical needs. See Choice
v. Michalak, No. 21-CV-0060, 2022 WL 4079577, at *4
(N.D. Ill. Sept. 6, 2022) (holding that because the plaintiff's
claim arose under the Fifth Amendment instead of the Eighth
Amendment, “it implicate[d] a different constitutional right,”
and therefore was meaningfully different from Carlson);
see also Stennis v. Armstrong, No. 18 CV 7846, 2023 WL
1319561, at *6-7 (N.D. Ill. Jan. 31, 2023) (reasoning that
plaintiff's status as a pretrial detainee claiming a right to
adequate medical care under the Fifth Amendment arises
under a new context). Nonetheless, this Court cannot draw the
same conclusion.
Imagine twin brothers, Alex and Terence, are each charged
with bank robbery and held in the same cell at a federal
facility. Alex has already pleaded guilty, was sentenced,
and is awaiting placement at a permanent facility. Terence
denied any wrongdoing and remained held as a pre-trial
detainee. Both Alex and Terence were diagnosed as chronic
asthmatics. In facts strikingly similar to Carlson, prison
officials were aware that the two brothers suffered from a
chronic asthmatic condition, as the two recently returned from
a week-long hospital stay. On the same day, both Alex and
Terence each suffered from a severe asthmatic attack. Prison
officials declined to provide medical attention for nearly six
hours. Once medical attention was provided, prison officials
administered contra-indicated drugs that exacerbated each
brother's medical condition. Despite the advice of prison
doctors, the two brothers were not transferred to a hospital for
over twelve hours, where they were subsequently pronounced
dead.
As Defendants would have it, only Alex, the brother who
pleaded guilty, would have the ability to seek relief based on
a claim for indifference to his medical needs. Terence, on the
other hand, would be denied any such recourse. Yet, the only
difference between the two brothers lies in their status — one
is a convicted felon who may bring an Eighth Amendment
claim and the other is a pre-trial detainee who seeks to prove
his innocence, and therefore, must pursue any claim under
the Fifth Amendment. Under these circumstances, the Court
finds that this distinction is neither meaningful nor relevant.
In drawing this conclusion, this Court is mindful of Justice
Sotomayor's sage counsel in her dissent to Egbert. There she
writes, “although [the Egbert] opinion will make it harder for
plaintiffs to bring a successful Bivens claim ... the lower courts
should not read it to render Bivens a dead letter.” Egbert,
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142 S. Ct. at 1823 (Sotomayor, J., concurring in part and
dissenting in part). I have not.
2. Existence of Actionable Claims
Having determined that Plaintiff can bring a Fifth
Amendment claim for deliberate indifference to his serious
medical needs under Bivens, the Court must consider whether
Plaintiff has sufficiently alleged a constitutional violation.
As a threshold matter, personal involvement of a defendant
is a prerequisite to any Bivens claim. See Ashcroft, 556 U.S.
at 676; Ganek v. Leibowitz, 874 F.3d 73, 92 (2d Cir. 2017).
Specifically, “[b]ecause the doctrine of respondeat superior
does not apply in Bivens actions, a plaintiff must allege
that the individual defendant was personally involved in the
constitutional violation.” Thomas v. Ashcroft, 470 F.3d 491,
496 (2d Cir. 2006). Indeed,
[t]he personal involvement of a
supervisory defendant may be shown
by evidence that the defendant:
(1) directly participated in the
constitutional violation; (2) failed to
remedy the violation after learning
of it through a report or appeal;
(3) created a custom or policy
fostering the violation or allowed
the custom or policy to continue
after learning of it; (4) was grossly
negligent in supervising subordinates
who caused the violation; or (5) failed
to act on information indicating that
unconstitutional acts were occurring.
*7 Id. at 496–97.
Defendants argue that Plaintiff does not allege Defendants
were aware of his medical complaints or that any Defendants
were personally involved in any constitutional violation
arising from his deliberate medical indifference claims.
(Defs.’ Mem. at 19.) The Court agrees as to Defendants Quay,
Garcia, White, Gonzalez, and Maury because the amended
complaint contains only conclusory allegations as to their
personal involvement.
As to former Warden Quay, Associate Warden Garcia, 6 and
Cpt. White, the amended complaint only generally alleges that
Plaintiff informed them of “what was happening to him”—
referring to the alleged sexual assault and extortion—but
“no remedial action was taken.” (Am. Compl. ¶ 32.) The
amended complaint also alleges that Quay, White, and Garcia
were amongst a group of Defendants to whom Plaintiff sent
“at least eighty-five [ ] emails ... wherein he described”
the details alleged in the amended complaint. (Id. ¶ 49.)
Similarly, the amended complaint alleges Plaintiff informed
Defendants Gonzalez, White, and Maury that he was being
extorted and had been sexually abused several times. (Id.
¶¶ 48, 49.) However, Plaintiff does not allege that any of
these communications related to Plaintiff's deliberate medical
indifference claims.
The same conclusion cannot be reached as to Defendants
Lt. Pope, Lt. Metzger, and C.O. Calixte. As to the July 7
attack, Plaintiff alleges sufficient personal involvement of
Defendants Lt. Pope and Lt. Metzger. After being taken to
the SIS location, Plaintiff alleges he informed Lt. Pope of
the attack and made him aware of his need for medical
attention. (Am. Compl. ¶ 38.) Lt. Pope laughed in response
without taking further action. (Id.) Similarly, with respect to
Lt. Metzger, Plaintiff alleges Lt. Metzger was in the vicinity
at the time Plaintiff told Lt. Pope, heard about the attack, and
told Plaintiff he should learn to defend himself. (Id. ¶¶ 39–40.)
Likewise, as to the allegations of deliberate indifference to
Plaintiff's medical needs following the 2019 blackout at MDC
Brooklyn, Plaintiff alleges he reported to C.O. Calixte and Lt.
Metzger that he was experiencing numbness to his left side
and that he had vomited blood. (Id. ¶ 45.) These Defendants
remained indifferent to his pleas. (Id.) According to the
amended complaint, Defendant Metzger simply told Plaintiff
that he was “sick in the head.” (Id. ¶ 45.) Accordingly,
Plaintiff has sufficiently alleged personal involvement as to
Lt. Pope, Lt. Metzger, and C.O. Calixte.
Beyond the personal involvement of each defendant, “[t]o
establish an unconstitutional denial of medical care, a prisoner
must prove deliberate indifference to his serious medical
needs.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994) (internal quotation marks and modification omitted).
Successful assertion of a claim for deliberate indifference
requires a plaintiff to allege facts sufficient to satisfy both
the objective and subjective prongs of the standard. Id.
The objective prong requires “the alleged deprivation must
be, in objective terms, sufficiently serious.” Id. (internal
quotation marks omitted). “The serious medical needs
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standard contemplates a condition of urgency such as one
that may produce death, degeneration, or extreme pain.”
Charles v. Orange Cnty., 925 F.3d 73, 86 (2d Cir. 2019).
Indeed, within the Second Circuit, factors considered include:
“(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.’ ” Laurent, 2018 WL 2973386,
at *3 (quoting Brock v. Wright, 315 F.3d 158, 162 (2d Cir.
2003)). A plaintiff must allege deliberate indifference, or that
the “charged official ... act[ed] with a sufficiently culpable
state of mind.” Hathaway, 99 F.3d at 553. The required state
of mind is:
*8 [T]he equivalent of criminal
recklessness; namely, when the prison
official knows of and disregards 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. Notably here, the “subjective prong” is defined
objectively, and courts must determine whether the official
“knew, or should have known, that the condition posed an
excessive risk to health or safety.” Darnell v. Pineiro, 849 F.3d
17, 35 (2d Cir. 2017); see also Morgan, 2018 WL 618451,
at *7 (“[T]he second requirement—the mens rea prong of
deliberate indifference to serious medical needs claims—
must be analyzed objectively: courts must determine whether
the official knew, or should have known that his or her
conduct posed an excessive risk to health or safety.”) (internal
quotation marks omitted).
Defendants urge dismissal on the grounds that the deprivation
Plaintiff alleges is not sufficiently serious as a matter of law.
(Defs.’ Mem. at 20–21.) Specifically, Defendants maintain
Plaintiff failed to plead sufficient factual allegations to
support a claim that these Defendants disregarded a serious
medical need. (Id.) The Court disagrees. Plaintiff alleges an
attack whereby he was anally sodomized with a broomstick.
(Am. Compl. ¶ 36.) He further alleges he cried out for help,
complaining of “severe pain” in his anus, mouth, and ribs
following the attack. (Id. ¶¶ 36, 38.) Likewise, following
the 2019 MDC Blackout, Plaintiff alleges he experienced
numbness in his left side and was vomiting blood. (Id. ¶
45.) Upon being taken to the hospital, doctors diagnosed
him with a hole in his stomach and a pinched nerve. (Id. ¶
46.) These allegations sufficiently establish a serious medical
need, for which the denial of treatment “could result in further
significant injury or the unnecessary and wanton infliction
of pain.” Abreu v. Lipka, 778 F. App'x 28, 31–32 (2d Cir.
2019) (“The medical need is considered ‘serious’ where the
denial of treatment ‘could result in further significant injury
or the unnecessary and wanton infliction of pain.’ ”) (quoting
Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000)).
Next, Defendants argue that Plaintiff has not sufficiently
pleaded a deliberate indifference claim because “medical
care was afforded [to him] in a matter of hours on each
occasion.” (Defs.’ Mem. at 22.) Not so. With respect to the
July 7 attack, Plaintiff alleges Defendants did not offer him
“immediate” medical care and thus delayed his treatment.
(Am. Compl. ¶ 40.) And, with respect to Plaintiff's medical
condition during the 2019 MDC Blackout, Plaintiff alleges
he was denied medical treatment for several days. (Am.
Compl. ¶¶ 44–45.) These allegations are sufficient. See,
e.g., Lombardo v. Graham, 807 F. App'x 120, 123 (2d
Cir. 2020) (delay of only 28 hours does not necessitate
dismissal); Moco v. Janik, No. 17-cv-398, 2019 WL 3751628,
at *3 (W.D.N.Y. Aug. 8, 2019) (“Although he may have
received care eventually, Plaintiff has sufficiently alleged that
Defendants denied or delayed treatment for a serious medical
need.”).
Accordingly, Plaintiff has sufficiently alleged a claim for
deliberate indifference to his serious medical needs as to
Defendants Lt. Metzger, Lt. Pope, and C.O. Calixte.
B. Plaintiff's Deliberate Indifference to His Safety Claim
1. Availability of a Remedy Under Bivens
*9 In addition to Plaintiff's claims for deliberate indifference
to his serious medical needs, Plaintiff also brings a claim for
failure to protect or deliberate indifference to his safety. (Pl.’s
Mem. at 21–22.) Defendants challenge this claim on the basis
that it arises in a new Bivens context not recognized by the
Supreme Court. (Defs.’ Reply at 11–12, ECF No. 69.) The
Court agrees. Indeed, Plaintiff does not dispute that the claim
arises in a new context, legally and factually distinct from
claims previously recognized under Bivens. (Pl.’s Mem. 22–
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23). Accordingly, the Court must consider whether special
factors counsel hesitation against allowing Plaintiff's Bivens
claim to proceed. 7 Defendants maintain that they do. (Defs.’
Mem. at 12–13.) The Court agrees.
2. Special Factors Counseling Hesitation 8
Where, as here, a court determines a claim arises under a
new Bivens context, the court must then consider “whether
there are any special factors that counsel hesitation about
granting the extension.” Hernandez v. Mesa, 140 S. Ct. 735,
743 (2020) (internal quotation marks omitted). The crux
of this inquiry being “whether the Judiciary is well suited,
absent congressional action or instruction, to consider and
weigh the costs and benefits of allowing a damages action
to proceed.” Abbasi, 137 S. Ct. at 1858. Notably, in Abbasi,
the Supreme Court acknowledged the phrase “special factors
counselling hesitation” had not previously been defined and
identified several factors for the court to consider. Id. at
1857; see also Crespo v. Hurwitz, No. 17-cv-6329, 2020 WL
7021658, at *5 (E.D.N.Y. Nov. 30, 2020) (noting special
factors might include “an alternative remedial scheme, the
manner in which [ ] Congress has structured its regulatory
authority, the burden of a damages remedy on the Government
and individual employees, or any other unforeseeable factor
that would counsel restraint”). Of particular relevance here,
courts must consider whether “there is an alternative remedial
structure present ... [as] that alone may limit the power of
the Judiciary to infer a new Bivens cause of action.” Abbasi,
137 S. Ct. at 1858. Importantly, “when alternative methods
of relief are available, a Bivens remedy usually is not.” Id.
Here, Defendants argue that alternative processes exist to
provide redress for Plaintiff's claims. (Defs.’ Mem. at 12.)
Namely, Defendants point to the Federal Torts Claim Act
(the “FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., equitable
remedies, such as a petition for habeas relief or an injunction,
New York state law claims, and the BOP's Administrative
Remedy Program. (Defs.’ Mem. at 12–15.)
*10 Defendants principally rely on the FTCA in arguing
that Plaintiff has other avenues of redress for his claims.
(Defs.’ Mem. at 13–14.) It is true that Plaintiff has an
available remedy under the FTCA, which provides a cause
of action against the United States for any “negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.”
28 U.S.C. § 1346(b)(1). And, Plaintiff has at least suggested
to this Court that he has a separate pending action under
the FTCA. (Pl.’s Mem. at 3 (“These lawsuits are pending,
as is the evaluation of Plaintiff's potential [FTCA] claim
against the United States.”).) The Court, however, is not
altogether persuaded that the FTCA, standing alone, provides
sufficient alternative relief in light of the Supreme Court's
prior guidance in Carlson. In Carlson, the Supreme Court
considered whether Congress's enactment of the FTCA
preempted a Bivens remedy under the Eighth Amendment
by “creat[ing] an equally effective remedy for constitutional
violations.” 446 U.S. at 19. Ultimately, the Supreme Court
determined it was “crystal clear” Congress viewed the FTCA
as “parallel, complementary causes of action,” and identified
several significant differences between claims brought under
the FTCA and Bivens, including that any remedy under
Bivens is recoverable against individuals. Id. at 20. The
Supreme Court determined the “FTCA is not a sufficient
protector of the citizens’ constitutional rights, and without a
clear congressional mandate we cannot hold that Congress
relegated respondent exclusively to the FTCA remedy.” Id. at
23.
This Court is mindful that at least one circuit court and sister
courts in this district have concluded “that Carlson’s analysis
of adequate alternative remedies cannot survive Abbasi and
dismissed Bivens claims because the FTCA provides an
adequate alternative remedy.” Scott v. Quay, No. 19-cv-1075,
2020 WL 8611292, at *8 (E.D.N.Y. Nov. 16, 2020) (collecting
cases). However, neither the Supreme Court nor the Second
Circuit has explicitly “decided whether, in the wake of
Abbasi, the availability of an FTCA action precludes the
Bivens remedy.” Id. And, absent clear guidance, this Court
joins others unwilling to determine that the FTCA alone is a
sufficient alternate remedy. See Powell v. United States, No.
19-cv-11351, 2020 WL 5126392, at *10 (S.D.N.Y. Aug. 31,
2020) (“The Supreme Court has not been bashful in signaling
its skepticism of the Bivens remedy—if the Court intended to
overrule Carlson, I am quite sure it would simply do so.”);
Bueno Diaz v. Mercurio, 442 F. Supp. 3d 701, 711 (S.D.N.Y.
2020) (“The Supreme Court's prior rulings in [Carlson] and
[Robbins], remain good law ... [t]he Court will follow that
precedent.”).
That said, Defendants argue, and Plaintiff does not contest,
several other alternative remedies exist, including under
New York state laws, BOP regulations, and the federal
habeas statute. The Court agrees. Indeed, the Supreme Court
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has recognized these and similar remedies to be adequate
alternatives to a claim under Bivens. See Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 74 (2001) (“Inmates in respondent's
position also have full access to remedial mechanisms
established by the BOP, including suits in federal court
for injunctive relief and grievances filed through the BOP's
Administrative Remedy Program[.]”); Abbasi, 137 S. Ct. at
1863 (“Indeed, the habeas remedy, if necessity required its
use, would have provided a faster and more direct route to
relief than a suit for money damages. A successful habeas
petition would have required officials to place respondents in
less-restrictive conditions immediately; yet this damages suit
remains unresolved some 15 years later.”). Taken together,
the Court believes there exists special factors counseling
hesitation and, accordingly, Plaintiff's deliberate indifference
to safety claim is dismissed.
III. Plaintiff's Conditions of Confinement Allegations
Defendants maintain that to the extent Plaintiff's amended
complaint challenges the conditions of confinement during
the blackout at MDC, such a claim would arise under a new
Bivens context. (Defs.’ Mem at 11–12.) In response, Plaintiff
represents that he has actions related to the blackout that
remain pending, including an FTCA claim against the United
States and his participation in class action lawsuits against
the MDC and Defendant Quay. (Pl.’s Mem. at 3.) Plaintiff,
however, does not substantively respond to Defendants’
legal argument. Because Plaintiff's opposition is devoid of
any response to Defendants’ arguments, the Court need not
address Defendants’ arguments on the merits as Plaintiff's
claims are deemed abandoned. See, e.g., Malik v. City of New
York, 841 F. App'x 281, 284 (2d Cir. 2021) (internal citations
and quotation marks omitted) (“When a party fails adequately
to present arguments in a brief, a court may properly consider
those arguments abandoned ... [e]specially in the case of a
counseled party where a court may ... infer from a party's
partial opposition that relevant claims or defenses that are not
defended have been abandoned.”).
IV. Qualified Immunity
*11 In a footnote, Defendants argue they are entitled to
dismissal because their actions were protected under the
doctrine of qualified immunity. Specifically, as to Plaintiff's
“medical claims,” Defendants maintain that it was objectively
reasonable for Defendants to believe that their actions, taken
in response to a developing emergent situation, did not violate
any clearly established constitutional rights. 9 (Defs.’ Mem.
at 25 n.8.) The Court disagrees.
The doctrine of qualified immunity shields government
officials from civil liability if their “conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “The issues on qualified immunity
are: (1) whether plaintiff has shown facts making out [a]
violation of a constitutional right; (2) if so, whether that
right was ‘clearly established’; and (3) even if the right was
‘clearly established,’ whether it was ‘objectively reasonable’
for the officer to believe the conduct at issue was lawful.”
Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.
2013) (quoting Taravella v. Town of Wolcott, 599 F.3d 129,
133–34 (2d Cir. 2010)). As to medical indifference claims
specifically, “to establish their qualified immunity defense,
the defendants must show that it was objectively reasonable,
for them to believe that they had not acted with the requisite
deliberate indifference.” McKenna v. Wright, 386 F.3d 432,
437 (2d Cir. 2004) (internal citations and quotation omitted).
On the face of these pleadings, the facts of which are accepted
as true, the Court is unwilling to draw such a conclusion.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss
for failure to state a claim is GRANTED in part and
DENIED in part. Specifically, Defendants’ motion to dismiss
Plaintiff's deliberate indifference as to his safety claim
is GRANTED. Defendants’ motion to dismiss Plaintiff's
deliberate indifference as to his medical needs claims against
Defendants Quay, Garcia, White, Gonzalez, and Maury
is GRANTED. Defendants’ motion to dismiss Plaintiff's
deliberate indifference as to his medical needs claims against
Defendants Pope, Metzger, and Calixte is DENIED.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 5671935
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Footnotes
1 Plaintiff also brings the instant action against Correctional Officer John Doe #1, Correctional Officer John
Doe #2, Correctional Officer John Doe #3, and Correctional Officer Jane Doe. See (Am. Compl. ¶¶ 19, 21,
ECF No. 26.) However, Plaintiff has not served these outstanding Defendants. Accordingly, the amended
complaint is dismissed as to these defendants.
2 In the alternative, Defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary
judgment on all claims. (Defs.’ Mem. L. Supp. Mot. Dismiss (“Defs.’ Mem.”) at 2–3, ECF No. 65.) The Court
declines to entertain a motion for summary judgment.
3 The following facts are taken from the amended complaint and are assumed to be true for the purposes of
this memorandum and order.
4 Plaintiff alleges that he also told several housing unit officers. (Am. Compl. ¶ 48.)
5 Inconsistently, the Defendants state in their Reply Memorandum that they “do not argue that [P]laintiff had
any pleading burden regarding exhaustion, nor do they seek dismissal under Rule 12(b)(6) in connection
with [P]laintiff's failure to exhaust.” (Reply Mem. at 15.)
6 The amended complaint alleges Garcia was responsible for correctional service, food service, and health
services. (Am. Compl. ¶ 13.)
7 In support of his argument, Plaintiff cites the Supreme Court's decision in Farmer v. Brennan, 511 U.S.
825 (1994). In Farmer, the complaint alleged prison officials placed petitioner in the prison's “general
population despite knowledge that the penitentiary had a violent environment and a history of inmate assaults,
and despite knowledge that petitioner, as a transsexual who ‘projects feminine characteristics,’ would be
particularly vulnerable to sexual attack by some USP–Terre Haute inmates.” 511 U.S. at 831. There, the
Supreme Court acknowledged “prison conditions may be restrictive and even harsh, but gratuitously allowing
the beating or rape of one prisoner by another serves no legitimate penological objective, any more than
it squares with evolving standards of decency.” Id. at 833 (internal quotation and alteration omitted). And
while the Supreme Court did not explicitly recognize this as an extension of the Bivens remedy, it did not
reject the petitioner's argument on Bivens grounds, and at least one court in this district have understood this
to mean “conditions of confinement actions under the Eighth Amendment includes both medical care and
safety, [in other words,] they are not distinct claims.” Walker v. Schult, 463 F. Supp. 3d 323, 331 (N.D.N.Y.
2020). While the Court does, to some extent, find this argument persuasive, it is contrary to the Supreme
Court's explicit guidance in Abbasi, which came after the Farmer decision. See Ziglar v. Abbasi, 137 S. Ct.
1843, 1855 (2017) (“These three cases—Bivens, Davis, and Carlson—represent the only instances in which
the Court has approved of an implied damages remedy under the Constitution itself.”).
8 The Court takes into consideration the Supreme Court's recent decision in Egbert v. Boule, 142 S. Ct. 1793
(2022), which supports this Court's finding that special factors counsel hesitation. In its supplemental briefing
in opposition to the motion to dismiss, Plaintiff argues that the holding in Egbert reaffirms the two-step inquiry,
requiring a court to determine, first, whether a claim arises in a new context, and second, whether there
are any special factors counseling hesitation. (Pl. Supp. Opp. Mem. at 1, ECF No. 85.) Defendants argue
that while the Egbert Court did not explicitly replace the two-step inquiry, the Supreme Court made clear
that the inquiry “often boils down to a single question: whether there is any reason to think that Congress
might be better equipped to create a damages remedy.” (Defs.’ Supp. Mem. at 4, ECF No. 86.) Nonetheless,
Defendants apply the two-step analysis, arguing that the case should be dismissed because there are special
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factors counseling hesitation. The Court agrees. Applying the two-step analysis in this case does not alter
the Court's finding.
9 Defendants make a similar argument as to the Plaintiff's “power-outage-related” complaints, separate from
Plaintiff's medical complaints. Having deemed any such claims as abandoned, the Court need not rule on
Defendants’ entitlement to qualified immunity.
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Oehler v. Nietzel, Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4989300
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Fredrick OEHLER, Plaintiff,
v.
Theresa NIETZEL, Matthew Albanese, Matthew
DellaPenta, Peter Colafrancesdri, E. Gaczewski,
John Doe(s) Customs and Border Protection
Officers, and the United States, Defendants.
23-cv-00956(JLS)(JJM)
|
Signed August 6, 2024
Attorneys and Law Firms
Chad A. Davenport, R. Anthony Rupp, III, Timothy P.
Noonan, Jr., Rupp Pfalzgraf LLC, Buffalo, NY, for Plaintiff.
Erin Elizabeth Molisani, Erie County Department of Law,
Buffalo, NY, for Defendant Theresa Nietzel.
Evelyn S. Yarborough, DOJ-Civ, Raleigh, NC, James E.B.
Bobseine, Office of the United States Attorney, Buffalo, NY,
for Defendant United States.
REPORT AND RECOMMENDATION
JEREMIAH J. MCCARTHY, United States Magistrate Judge
*1 Plaintiff Fredrick Oehler commenced this action for
alleged civil rights violations arising from his online purchase
of a device, identified as a fuel filter, that was determined
by Customs and Border Protection (“CBP”) to be an illegal
firearm silencer. This began a series of events culminating
in the execution of a search warrant at Oehler's residence,
followed by criminal charges against him which were later
dismissed. See Complaint [1]. 1
Before the court are the motions by (1) defendants Therese
Nietzel and Matthew Albanese (collectively, the “County
Defendants”) to dismiss the Complaint pursuant to Fed.
R. Civ. P. (“Rule”) 12(b)(6) [4]; (2) defendants Matthew
DellaPenta, Peter Colafranceschi (incorrectly identified in the
Complaint as Peter Colafrancesdri) and Edward Gaczewski
(identified as E. Gaczewski) (collectively, the “Individual
Federal Defendants”) to dismiss the Complaint pursuant
to Rule 12(b)(6) and for substitution of a party [16]; (3)
defendant United States to dismiss the Complaint pursuant
to Rule 12(b)(1) and 12(b)(6) [17]; and (4) Oehler's cross-
motion [20] to strike the Declaration of Gregory Stimmel
submitted in support of the United States’ motion to dismiss,
all of which have been referred to me by District Judge John
L. Sinatra, Jr. for initial consideration [5]. Having reviewed
the parties’ submissions [4, 16, 17, 20, 22-29], I recommend
that Oehler's motion to strike [20] 2 and the Individual Federal
Defendants’ motion to dismiss and substitute [16] be granted,
and that the remaining motions [4, 17] be granted in part and
denied in part.
BACKGROUND
Oehler's Complaint alleges that the Bureau of Alcohol
Tobacco and Firearms (“ATF”) had an increasing concern
“regarding the proliferation of fuel filters that are sometimes
modified and used as unregistered firearms silencers”,
causing it to instruct CBP “and other law enforcement agents
that they should target packages containing fuel filters ... even
though [the] ATF knows that other components and further
steps are required to convert the fuel filter into an illegal
firearm silencer”. [1], ¶¶35, 40. Specifically, it alleged that
in order for a fuel filter to constitute a “firearms silencer”
under the National Firearms Act, “the owner must purchase
baffles and a converter that allows the fuel filter to attach to
a firearm”, as well as “drill holes through the baffles to allow
a projectile to pass through and to prevent the fuel filter and
firearm from exploding”. Id., ¶¶26-28.
Oehler was allegedly swept up in the ATF's enforcement
efforts. He allegedly ordered a fuel filter for one of his
vehicles through a commercial website. Id., ¶¶21-22. When
the package containing the fuel filter arrived in the United
States, it was examined by John Doe CBP Officers, and was
“incorrectly classified ... as a firearms silencer”. Id., ¶¶30-31.
*2 On or about January 25, 2021, defendant Matthew
DellaPenta, a Special Agent (“SA”) with the Department
of Homeland Security (“DHS”) was notified that CBP had
intercepted a package containing a firearm silencer destined
for Oehler's residence. Id., ¶32. The John Doe CBP Officers
allegedly provided him with “misleading photographs” of
the contents of the package that showed a “fuel filter case,
fuel filter core and two end caps”, but “were insufficient
to determine whether the package included other necessary
components to convert the fuel filter into an illegal firearm
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suppressor - i.e., baffles and a converter so that the recipient
of the package could attach the fuel filter to a firearm”. Id.,
¶33. In turn, SA DellaPenta passed this information along to
Theresa Nietzel, a Detective with the Erie County Sheriff's
Office, and requested her assistance “to investigate and seize
the package”. Id., ¶50.
On January 28, 2021, CBP mailed Oehler a “Notice of
Seizure”, which advised him that the package was seized
because it contained an illegal firearm silencer. Id., ¶51.
Oehler also received an “Election of Proceedings” form
that provided him with a variety of options, including
abandonment of the package. Id., ¶52. On or about February
1, 2021, Oehler returned the Election of Proceedings form,
indicating that he intended to abandon the package and its
contents. Id., ¶55.
Despite Oehler's having abandoned the package, SA
DellaPenta proceeded with the investigation by conducting
surveillance to confirm Oehler's residence. Id., ¶56. Oehler
alleges “[u]pon information and belief” that “prior to
receiving such a notification from CBP Officers, John Doe(s),
SA DellaPenta and/or Detective Nietzel were aware that ...
Oehler had an inventory of assault weapons that [they]
believed to be illegal” that they “wished to seize”. Id.,
¶¶58-59. He further alleges “upon information and belief” that
despite them “knowing or having strong reason to know that
the notification of a firearm silencer” from CBP was false,
they used it to obtain the search warrant to seize the weapons.
Id., ¶60.
On February 10, 2021, Detective Nietzel “applied for a search
warrant ... from [Justice] Christopher J. Burns ... of the
Erie County Supreme Court.” Id., ¶57. Detective Nietzel's
supporting Affidavit stated that she had “received information
from a reliable law enforcement source, and fellow officer,
[SA] ... DellaPenta ... that [Oehler] ... will be receiving a
firearm silencer at [his] residence to be delivered during a
controlled delivery” ([4-1] at 3, ¶2), and attached a Supporting
Deposition of Fact from SA DellaPenta stating that CBP had
seized a package addressed to Oehler that contained “one
firearm silencer in violation of US Law”. Id. at 7.
Detective Nietzel's Affidavit did not mention that the package
contained a purported fuel filter, but the search warrant
application attached photographs of the mailing label of
the package identifying the contents as a fuel filter. See
id. at 11-13. The search warrant application was based on
a violation of New York Penal Law § 265.02(2), which
criminalizes the “[p]ossession of a firearm silencer”, defined
as “an attachment for causing the firing of any gun ... to be
silent, or intended to lessen or muffle the noise of the firing of
any gun”. Id. at 3, ¶2(d). See New York Penal Law § 265.00(2)
(defining “firearm silencer”).
Oehler alleges that “Detective Nietzel and/or SA DellaPenta”
“should have opened the package to determine its contents,
but instead they relied entirely on the conclusion by unknown
CBP Officers, John Doe(s), that the package contained a
firearm silencer when in fact they knew or should have known
that it did not”. Complaint [1], ¶68.
The search warrant for Oehler's residence was executed by
Detective Nietzel and Matthew Albanese, a Deputy with the
Sheriff's Office, as well SA DellaPenta and fellow DHS SAs
Peter Colafranceschi and Edward Gaczewski (id., ¶¶79-80),
and resulted in the seizure of a number of firearms. Id., ¶82.
Following the search, Oehler was arrested and charged in
criminal complaints signed by Detective Nietzel with four
counts of possession of an assault rifle in violation of New
York Penal Law § 265.02(7), and with one count of possession
of a firearm silencer in violation of New York Penal Law
§ 265.02(2). Id., ¶¶85, 87, 91. Oehler alleges that Detective
Nietzel “knew, or should have known, that the fuel filter [he]
purchased ... was not modified and therefore it is not a firearm
silencer”. Id., ¶90.
*3 After being provided with a copy of a prior decision from
Justice Burns (People v. John Andrews, Case No. 2020-0079)
that suppressed evidence from a “bogus search warrant”
obtained under similar circumstances - i.e., by falsely alleging
that the defendant “was having a firearm silencer delivered
to his residence when in fact the item that was delivered
was a legal solvent trap”, the District Attorney “agreed to
dismiss the charges ... without a trial and with prejudice”. Id.,
¶¶99-100.
As a result of this alleged conduct, Oehler asserts the
following Causes of Action:
-- First: Unreasonable search and seizure in violation of the
Fourth and Fourteenth Amendments based on the execution
of the search warrant against all defendants under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), and 42 U.S.C. § 1983;
-- Second: Unreasonable search and seizure in violation of
the Fourth and Fourteenth Amendments for presenting a
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false affidavit in support of the search warrant against SA
DellaPenta, Detective Nietzel, and John Doe CBP Officers
under Bivens and 42 U.S.C. § 1983;
-- Third: Failure to intervene in violation of the Fourth and
Fourteenth Amendments, as well as state law, against all
defendants under the Federal Tort Claims Act (“FTCA”),
Bivens, and 42 U.S.C. § 1983;
-- Fourth: Conspiracy to violate rights under the Fourth and
Fourteenth Amendments, as well as state law, against all
defendants under Bivens and 42 U.S.C. § 1983;
-- Fifth: False arrest in violation of the Fourth and Fourteenth
Amendments, as well as state law, against all defendants
under the FTCA, Bivens, and 42 U.S.C. § 1983;
-- Sixth: False imprisonment in violation of the Fourth and
Fourteenth Amendments, as well as state law, against all
defendants under the FTCA, Bivens, and 42 U.S.C. § 1983;
and
-- Seventh: Malicious prosecution in violation of the Fourth
and Fourteenth Amendments, as well as state law, against all
defendants under the FTCA, Bivens, and 42 U.S.C. § 1983.
DISCUSSION
The standards for dismissal under Rule 12(b)(6) and Rule
12(b)(1) differ. “To survive a Rule 12(b)(6) motion to dismiss,
a plaintiff must allege enough facts to state a claim for
relief that is plausible on its face ... and provide more than
a formulaic recitation of the elements of a cause of action
or naked assertions devoid of further factual enhancement.”
Shara v. Maine-Endwell Central School District, 46 F.4th 77,
82 (2d Cir. 2022).
By contrast, “[i]n resolving a motion to dismiss under Rule
12(b)(1), the district court must take all uncontroverted facts
in the complaint (or petition) as true, and draw all reasonable
inferences in favor of the party asserting jurisdiction. But
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 that
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).
A. The County Defendants’ Motion to Dismiss pursuant
to Rule 12(b)(6)
1. Official Capacity, Bivens, FTCA and State Law
Claims
Oehler acknowledges that “any state law, Bivens, FTCA,
and Monell [v. Department of Social Services of the City of
New York, 436 U.S. 658 (1978)] claims against the County
Defendants should be dismissed”. Oehler's Memorandum of
Law [22] at 2 n. 1. 3 Therefore, I recommend that these claims
be dismissed.
2. 42 U.S.C. § 1983: Unreasonable Search and Seizure
Causes of Action
*4 “Ordinarily, ... [a] search pursuant to a warrant issued
by a neutral magistrate is presumed reasonable because such
warrants may issue only upon a showing of probable cause.”
Walczyk v. Rio, 496 F.3d 139, 155-56 (2d Cir. 2007). “A
section 1983 plaintiff challenging a warrant [on the basis
that a law enforcement officer materially misled the issuing
magistrate] must make the same showing that is required at
a suppression hearing under Franks v. Delaware, 438 U.S.
154, 155-56 ... (1978): the plaintiff must show that the affiant
knowingly and deliberately, or with a reckless disregard of
the truth, made false statements or material omissions in
his application for a warrant, and that such statements or
omissions were necessary to the finding of probable cause.”
Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994). This
must be established by a “substantial preliminary showing”.
Franks, 438 U.S. at 155. See also Shabazz v. Johnson City
Police Department, 2019 WL 2617016, *3 (N.D.N.Y. 2019).
Arguing that there was no Fourth Amendment violation, the
County Defendants seek dismissal of the First and Second
Causes of Action.
a. Detective Nietzel
The County Defendants argue that Detective Nietzel's
supporting Affidavit “was not false. The warrant indicates
that the contents of the package was a ‘firearm silencer’ [and]
[Oehler] admits that a fuel filter can be converted into a
silencer”. County Defendants’ Memorandum of Law [4-3]
at 15 (citing Complaint [1], ¶27) (emphasis in original). 4
However, this argument would require me to disregard the
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allegations of the Complaint stating that the device was not
a “firearm silencer”. See, e.g., Complaint [1], ¶¶34, 38, 88,
90, 91.
The Complaint alleges that this falsehood was made with
reckless disregard for the truth because Detective Nietzel
“should have opened the package to determine its contents,
but instead they relied entirely on the conclusion by unknown
CBP Officers ... that the package contained a firearm
silencer”. Id., ¶68 (emphasis added). However, Detective
Nietzel was entitled to “rely - as long as such reliance
is reasonable - on information provided by other law
enforcement officials”. Hewitt v. City of New York, 2012
WL 4503277, *4 (E.D.N.Y. 2012), aff'd, 544 F. App'x 24 (2d
Cir. 2013) (emphasis added); Bernard v. United States, 25
F.3d 98, 103 (2d Cir. 1994) (“the determination of probable
cause does not turn on whether Agent # 1's observations were
accurate, but on whether [the arresting officer] was reasonable
in relying on those observations”); Saunders v. Cavada, 2024
WL 681228, *7 (E.D.N.Y. 2024) (“when assessing probable
cause to arrest, police officers are entitled to rely - as long
as such reliance is reasonable - on information provided
by other law enforcement officials, including identifications
which may later turn out to be mistaken”). There may be
reasons why it was unreasonable for Detective Nietzel to rely
on the assessment of other law enforcement agencies that the
package contained a firearm silencer, rather than a fuel filter,
but these are not alleged in the Complaint.
“Unsupported conclusory allegations of falsehood or material
omission cannot support a Franks challenge; ... the plaintiff
must make specific allegations”. Velardi, 40 F.3d at 573.
Without more, Oehler's allegation “[u]pon information and
belief” that Detective Nietzel knew or had “reason to
know that the notification of a firearm silencer ... was
false” (Complaint [1], ¶¶57; 68), fails to plausibly allege that
she knowingly presented false information to Justice Burns. 5
See Kates v. Greece Police Department, 2017 WL 11548970,
*4 (W.D.N.Y. 2017) (dismissing unlawful search and seizure
claim where “conclusory allegation does not suffice to meet
the Franks standard - a ‘high one’ ”). Therefore, I recommend
that this claim be dismissed.
b. Deputy Albanese
*5 The County Defendants argue that the claims
against Deputy Albanese must be dismissed because he
“merely executed a facially-valid search warrant”. County
Defendants’ Memorandum of Law [4-3] at 16. I agree.
“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.” Kravitz v. Purcell, 87 F.4th 111, 129 (2d
Cir. 2023). The only allegation against Deputy Albanese is
that he participated in the execution of the search warrant.
See Complaint [1], ¶79. Without any allegations that he
participated in obtaining the search warrant or otherwise had
reason to know that false information was used to obtain the
search warrant, I recommend that this claims as against him
be dismissed.
3. 42 U.S.C. § 1983: False Arrest/Imprisonment
“False arrest is simply false imprisonment accomplished by
means of an unlawful arrest.” Jenkins v. City of New York,
478 F.3d 76, 88 n.10 (2d Cir. 2007). Since “[s]uch claims are
one and the same”, I have addressed them together. Oudekerk
v. Lehoisky, 2024 WL 1693850, *4 (N.D.N.Y. 2024).
Oehler's false arrest claim appears to be premised on two
theories. First, that the evidence supporting the charges was
obtained in violation of his “constitutionally protected rights
pursuant to a bogus warrant”. Complaint [1], ¶86. This “is
essentially a fruit-of-the-poisonous tree argument ... that ...
has no applicability in the Section 1983 context”. Vassiliou
v. City of New York, 2021 WL 76916, *7 (E.D.N.Y. 2021).
See also Townes v. City of New York, 176 F.3d 138, 145 (2d
Cir. 1999) (“[t]he fruit of the poisonous tree doctrine cannot
link the unreasonable seizure and search to [the plaintiff's]
conviction and incarceration because this evidentiary doctrine
is inapplicable to civil § 1983 actions”); Arroyo v. City of
New York, 683 F. App'x 73, 75 (2d Cir. 2017) (Summary
Order) (“[t]he fact that the gun was later suppressed does
not preclude a determination that there was arguable probable
cause for the arrest”).
Second, Oehler alleges that Detective Nietzel falsely charged
him with possession of a firearm silencer when she “knew,
or should have known, that the fuel filter purchased by [him]
was not modified and therefore it was not a firearm silencer”.
Complaint [1], ¶¶87, 90. That allegation is insufficient to
support Oehler's false arrest/imprisonment claims because
“[t]he existence of probable cause to arrest for some criminal
offense - even an offense other than the one identified by
the arresting officer at the time of arrest - defeats a false
arrest Fourth Amendment claim”. Glasgow v. Beary, 2 F.
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Supp. 3d 419, 422 (E.D.N.Y. 2014). See also Kass v. City of
New York, 864 F.3d 200, 206 (2d Cir. 2017) (“[a]n officer
is entitled to qualified immunity from a federal false arrest
and imprisonment claim if he had arguable probable cause to
arrest the plaintiff for any offense, regardless of the offense
with which the plaintiff was actually charged”); Banyan v.
Sikorski, 2024 WL 2137882, *8 (S.D.N.Y. 2024) (“a false
arrest claim fails if there was probable cause to arrest the
plaintiff for any offense” (emphasis omitted)). As the County
Defendants argue, Oehler's “own Complaint demonstrates
that several assault weapons were found in violation of [the]
Penal Law” (County Defendants’ Reply Memorandum of
Law [25-1] at 10), and there is no allegation that probable
cause did not exist to arrest Oehler for those violations. See
Complaint [1], ¶¶82, 85. Therefore, I recommend that this
claim be dismissed.
4. Malicious Prosecution
*6 To prevail on a § 1983 claim for malicious prosecution,
a plaintiff must show “a seizure or other perversion of proper
legal procedures implicating his personal liberty and privacy
interests under the Fourth Amendment”, and that “criminal
proceedings were initiated or continued against him, with
malice and without probable cause, and were terminated in
his favor”. Lanning v. City of Glens Falls, 908 F.3d 19, 24
(2d Cir. 2018).
a. Detective Nietzel
The County Defendants argue that there was “probable cause
for the arrest” and that Oehler has “set forth only vague
and conclusory assertions ... that defendants acted with
malice”. County Defendants’ Memorandum of Law [4-3] at
22. Neither of these arguments are persuasive.
In contrast to Oehler's false arrest claim, “the defendant must
have possessed probable cause as to each offense charged”
to support a malicious prosecution claim. Costello v. Milano,
20 F. Supp. 3d 406, 415 (S.D.N.Y. 2014) (emphasis added);
Knox v. Khan, 2019 WL 1099952, *8 (E.D.N.Y. 2019) (“to
defeat a malicious prosecution claim, defendants must have
reasonable or probable cause for each offense charged”);
D'Angelo v. Kirschner, 288 F. App'x 724, 726-27 (2d Cir.
2008) (Summary Order) (“a finding of probable cause to
arrest as to one charge does not necessarily defeat a claim of
malicious prosecution as to other criminal charges that were
resolved in the plaintiff's favor”).
As discussed above, the Complaint does not allege that
probable cause was lacking for the four charges against
Oehler for violating New York Penal Law § 265.02(7),
which criminalizes the possession of certain assault rifles. See
Complaint [1], ¶¶85-86. Oehler only challenges the existence
of probable cause for the remaining charge for violating
New York Penal Law § 265.02(2), which criminalizes the
possession of a firearm silencer. Id., ¶87.
The Complaint alleges that following the execution of the
search warrant and presumably the opening of the package,
Detective Nietzel “knew or should have known” that Oehler
was “not in possession of a firearm silencer; rather, he
purchased and was in possession of a fuel filter that, when
unmodified, is legal to own”. Id., ¶¶88, 90. Based solely
on the allegations before me, and without the benefit of the
accusatory instrument, and supporting papers, or any other
evidence, I conclude that Oehler has sufficiently pled a lack
of probable cause for the unlawful possession of a firearm
silencer charge. 6 At this stage, the absence of probable
cause also gives rise to the existence of malice. See Johnson
v. City of Rochester, 2023 WL 8237560, *8 (W.D.N.Y.
2023) (“[g]enerally, the lack of probable cause - while not
dispositive - tends to show that the accuser did not believe in
the guilt of the accused, and malice may be inferred from the
lack of probable cause”).
Alternatively, the County Defendants rely on qualified
immunity for dismissal. See County Defendants’
Memorandum of Law [4-3], Point I. “[O]fficers are entitled
to qualified immunity under § 1983 unless (1) they violated
a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was clearly established at
the time.” District of Columbia v. Wesby, 583 U.S. 48,
62-63 (2018). To be “clearly established”, the law must
be “sufficiently clear that every reasonable official would
understand that what he is doing is unlawful.” Id. at 63. “In
the context of ... malicious prosecution claims, an officer is
entitled to qualified immunity if he had either probable cause
or arguable probable cause”. Dufort v. City of New York, 874
F.3d 338, 354 (2d Cir. 2017).
*7 The Second Circuit has noted that since “on a Rule 12(b)
(6) ... motion, the facts supporting the qualified immunity
defense must appear on the face of the complaint, asserting
qualified immunity as a defense in the earliest stages of
litigation, before development of a relevant factual record,
usually fails to result in dismissal of the complaint”.
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Therefore, it “has admonished defendants moving to dismiss
a suit by reason of qualified immunity” that they “would
in almost all cases be well advised to move for summary
judgment, rather than for dismissal under Rule 12(b)(6)”.
Pourkavoos v. Town of Avon, 823 F. App'x 53, 59 (2d Cir.
2020) (Summary Order).
This case is not unique. While there may be arguments
following discovery as to why Detective Nietzel is entitled
to qualified immunity for the malicious prosecution claim, at
this stage the allegations of the Complaint fail to establish her
entitlement to that relief.
b. Deputy Albanese
The County Defendants argue that there is no allegation
that Deputy Albanese “initiated or continued a criminal
prosecution; only that defendant Nietzel did so”. County
Defendants’ Memorandum of Law [4-3] at 22. I agree. The
sole allegation against Deputy Albanese is that he was among
the law enforcement officers who executed the search warrant
at Oehler's residence. See Complaint [1], ¶79. Oehler argues
that Deputy Albanese “was listed as an officer who assisted
in ... [his] arrest” (Oehler's Memorandum of Law [22] at
15), but even if that allegation was sufficient to support a
malicious prosecution claim against him, it is not contained
in the Complaint. See Fischer v. Forrest, 286 F. Supp. 3d
590, 604 (S.D.N.Y. 2018), aff'd, 968 F.3d 216 (2d Cir. 2020)
(“[i]t is black letter law that a plaintiff may not alter his
pleadings through a brief”). Therefore, I recommend this
claim be dismissed as against Deputy Albanese.
5. Failure to Intervene
“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.” Anderson v.
Branen, 17 F.3d 552, 557 (2d Cir. 1994). “Liability attaches
on the theory that the officer, by failing to intervene, becomes
a ‘tacit collaborator’ in the illegality.” Cornell v. Village of
Clayton, 2023 WL 5965431, *8 (N.D.N.Y. 2023).
“To state a failure-to-intervene claim, a plaintiff must allege
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 did not take reasonable
steps to intervene.” Debellis v. Soloman, 2022 WL 902635,
*4 (S.D.N.Y. 2022).
a. Detective Nietzel
As the primary actor in the relevant events (i.e., the applicant
for the search warrant, arresting officer, and the criminal
complainant), it is not entirely clear how Detective Nietzel
failed to intervene in the constitutional violations of others.
The only conduct that Oehler points to as constituting a
failure to intervene is Detective Nietzel's alleged failure to
“review ... [the] contents [of the package] before assisting
the federal officers with obtaining a search warrant”. Oehler's
Memorandum of Law [22] at 12.
However, for the reasons discussed above, it is not sufficiently
alleged that Detective Nietzel unreasonably relied on the
information received from SA DellaPenta concerning the
contents of the package. As pled, there is nothing to suggest
that a reasonable officer in Detective Nietzel's position would
know that Oehler's constitutional rights were being violated.
Therefore, I recommend that this claim be dismissed as
against Detective Nietzel.
b. Deputy Albanese
*8 The only allegation of the Complaint against Deputy
Albanese is that he participated in the execution of the
search. See Complaint [1], ¶79. This falls well short of
stating a failure to intervene claim against him. Therefore, I
recommend that this claim be dismissed as against Deputy
Albanese.
6. Conspiracy
“To state a claim for § 1983 conspiracy, a plaintiff must allege
(1) an agreement between two or more state actors ...; (2) to
act in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal, causing damages.”
Eldars v. State University of New York at Albany, 2021 WL
4699221, *3 (2d Cir. 2021) (Summary Order). “Complaints
containing only conclusory, vague, or general allegations that
the defendants engaged in a conspiracy fail to state a claim.”
Id.
“A conspiracy need not be shown by proof of an explicit
agreement but can be established by showing that the
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parties have a tacit understanding to carry out the prohibited
conduct.” Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.
1999). However, “a plaintiff must provide some factual basis
supporting a meeting of the minds, such that defendants
entered into an agreement, express or tacit, to achieve the
unlawful end”. Webb v. Goord, 340 F.3d 105, 110 (2d Cir.
2003).
The Complaint fails to allege a factual basis supporting the
existence of any express or tacit agreement to unlawfully
search, arrest, or prosecute Oehler. Even if the failure of
Detective Nietzel to open the package or to more closely
review the photographs and confirm the existence of a firearm
silencer could be considered reckless, lacking are sufficient
allegations that there was any agreement between law
enforcement officers to deprive Oehler of his constitutional
rights. See Beechwood Restorative Care Center v. Leeds, 436
F.3d 147, 154 (2d Cir. 2006) (“[c]ooperation between state
and federal bureaucracies acting in their regulatory spheres
supports no inference that the federal actors acted with an
improper motive”).
B. The Individual Federal Defendants’ Motion to
Dismiss pursuant to Rule 12(b)(6) and For Substitution
of a Party pursuant to 28 U.S.C. § 2679
1. FTCA, Fourteenth Amendment, and 42 U.S.C. §
1983 Claims
Oehler does not oppose the Individual Federal Defendants’
motion to the extent that it seeks to dismiss the Fourteenth
Amendment claims, as well as those being asserted under
42 U.S.C. § 1983 and the FTCA. See Oehler's Memorandum
of Law [23] at 2 n. 1. Nor does he offer any opposition
to the Individual Federal Defendants’ motion to substitute
the United States as the proper defendant for his state law
claims pursuant to 28 U.S.C. § 2679(d)(1). 7 Therefore, I
recommend that these claims be dismissed, and that the
motion for substitution be granted.
2. Bivens Claims
42 U.S.C. § 1983 “entitles an injured person to money
damages if a state official violates his or her constitutional
rights”, but “Congress did not create an analogous statute
for federal officials.” Ziglar v. Abbasi, 582 U.S. 120, 130
(2017). In Bivens that the Supreme Court first “held that it
had authority to create ‘a cause of action under the Fourth
Amendment’ against federal agents who allegedly manacled
the plaintiff and threatened his family while arresting him
for narcotics violations.” Egbert v. Boule, 596 U.S. 482, 490
(2022). “Over the following decade, the Court twice again
fashioned new causes of action under the Constitution - first,
for a former congressional staffer's Fifth Amendment sex-
discrimination claim, see Davis v. Passman, 442 U.S. 228 ...
(1979); and second, for a federal prisoner's inadequate-care
claim under the Eighth Amendment, see Carlson v. Green,
446 U.S. 14 ... (1980).” Id. at 490-91.
*9 However, “[s]ince deciding Carlson in 1980, additional
causes of action arising under Bivens have not been implied”.
Smith v. Arrowood, 2023 WL 6065027, *3 (W.D.N.Y.
2023). Most recently in Egbert, supra, the Supreme Court
addressed the availability of Bivens civil remedies for Fourth
Amendment violations. It reiterated the court's previous two-
part test for establishing Bivens liability: first, the court asks
“whether the case presents a new Bivens context - i.e., is
it meaningfully different from the three cases in which the
Court has implied a damages action.” Egbert, 596 U.S. at 492.
“Second, if a claim arises in a new context, a Bivens remedy
is unavailable if there are any ‘special factors’ indicating that
the Judiciary is at least arguably less equipped than Congress
to weigh the costs and benefits of allowing a damages action
to proceed.” Id.
However, it explained that “those steps often resolve to a
single question: whether there is any reason to think that
Congress might be better equipped to create a damages
remedy”. Id. The creation of “a cause of action under Bivens”
remains “a disfavored judicial activity”, because “in all but
the most unusual circumstances, prescribing a cause of action
is a job for Congress, not the courts”. Id. at 486, 491. “If there
is even a single reason to pause before applying Bivens in a
new context, a court may not recognize a Bivens remedy.” Id.
at 492.
a. New Context
A new context exists where the claim is “different in a
meaningful way from previous Bivens cases decided by
th[e] [Supreme] Court”. Abbasi, 582 U.S. at 139. The line
of demarcation for what qualifies as a “new context” has
been described as a “low threshold”. Quinones-Pimentel v.
Cannon, 2022 WL 826344, *22 (D.P.R. 2022), aff'd, 85 F.4th
63 (1st Cir. 2023). See also Elhady v. Unidentified CBP
Agents, 18 F.4th 880, 883 (6th Cir. 2021) (“[t]he context is
new if it differs in virtually any way from the Bivens trilogy”
- i.e., Davis and Carlson, supra). The Supreme Court has
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identified a number of ways that a case might differ in a
meaningful way, including:
“the rank of officers involved; the constitutional right at
issue; the generality or specificity of the official action;
the extent of judicial guidance as to how an officer should
respond to the problem or emergency to be confronted; the
statutory or other legal mandate under which the officer
was operating; the risk of disruptive intrusions by the
Judiciary into the functioning of other branches; or the
presence of potential special factors that previous Bivens
cases did not consider.”
Abbasi, 582 U.S. at 139-40.
In Bivens, the Court recognized an implied damages remedy
against federal officers arising from a warrantless search
of a residence and warrantless seizure by agents of the
Federal Bureau of Narcotics (now the Drug Enforcement
Agency (“DEA”)). See 403 U.S. at 389-90. There are some
commonalities between the facts of Bivens and those alleged
here. Oehler focuses on the fact that in Bivens the same
“Constitutional right [was] at issue - the right to be free
from unreasonable search and seizures under the Fourth
Amendment”. Oehler's Memorandum of Law [23] at 4.
However, that commonality is insufficient: courts must “look
beyond the constitutional provisions invoked”. Hernandez v.
Mesa, 589 U.S. 93, 103 (2020). See also Egbert, 596 U.S.
at 495 (“[w]hile Bivens and this case do involve similar
allegations of excessive force and thus arguably present
almost parallel circumstances or a similar mechanism of
injury, ... these superficial similarities are not enough to
support the judicial creation of a cause of action”).
There are meaningful differences between the facts in Bivens
and the allegations presented here. For instance, unlike
Bivens, which addressed the conduct of the DEA, this
case addresses the conduct of CBP and HSI employees.
“Difference[s] in agency is now sufficient, after [Egbert], to
create a new context.” Sigalovskaya v. Braden, 2023 WL
6385761, *5 (E.D.N.Y. 2023) (“the claim involves a new
category of defendants because they are not agents of the
Federal Bureau of Narcotics, but instead are HSI special
agents”); Karman v. U.S. Customs & Border Protection,
2023 WL 5806313, *6 (N.D.N.Y. 2023), adopted in relevant
part, 2024 WL 123780 (N.D.N.Y. 2024) (“[f]ollowing the
Supreme Court's decisions in Hernandez and Egbert, district
courts have concluded that a Bivens action does not exist
for claims against federal immigration officials”); Lewis v.
Westfield, 640 F. Supp. 3d 249, 253 (E.D.N.Y. 2022), aff'd,
2023 WL 8613873 (2d Cir. 2023) (“[t]he defendants are
Deputy Marshals, rather than federal narcotics agents”). See
also Cohen v. Trump, 2024 WL 20558, *2 (2d Cir. 2024)
(Summary Order) (a suit against Bureau of Prisons and
United States Probation and Pretrial Services “involves ‘new
categor[ies] of defendants’ that were not contemplated in
Bivens”).
*10 Additionally, the malicious prosecution and failure
to intervene claims, neither of which were at issue in
Bivens, also present new contexts. See Sigalovskaya, 2023
WL 6385761 at *4 (“[p]laintiff's malicious prosecution
and failure to intervene claims are new contexts because
Bivens did not involve a malicious prosecution or failure
to intervene claim”). The same holds true for Oehler's
conspiracy claim (see Milton v. McClintic, 2022 WL
4852825, *2 (W.D.N.Y. 2022)), 8 as well as his Fourth
Amendment unreasonable search claims. See Annappareddy
v. Pascale, 2021 WL 1603987 (4th Cir. 2021) (“[w]hat Bivens
involved was the Fourth Amendment right to be free of
unreasonable warrantless searches and seizures; this case,
by contrast, involves searches and a seizure conducted with
a warrant. It thus implicates a distinct Fourth Amendment
guarantee ... governed by different legal standards”). See
also Bissereth v. United States, 2023 WL 4373888, *8
(D. Mass. 2023) (“since Abbasi and Egbert, courts have
generally held that the existence of a warrant makes a
case ‘meaningfully different’ from Bivens, because the legal
mandate under which defendants were operating diverges
from the warrantless narcotics-investigation circumstances in
Bivens”); Cuney v. Choi, 2022 WL 16743984, *4 (N.D.N.Y.
2022) (“[p]laintiff's claim that Defendant exceeded the scope
of warrants authorizing the search of electronic data is
meaningfully different from the warrantless search and arrest
in Bivens, and presents a new context”).
Oehler's reliance on Meeks v. Larsen, 611 F. App'x 277 (6th
Cir. 2015) and Powell v. United States, 2022 WL 1645545
(S.D.N.Y. 2022), both decided before Egbert, do not compel a
different conclusion. See Oehler's Memorandum of Law [23]
at 5-6.
b. Special Factors
“If there are alternative remedial structures in place, that
alone, like any special factor, is reason enough to limit
the power of the Judiciary to infer a new Bivens cause of
action.” Egbert, 596 U.S. at 493. Oehler acknowledges that
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the Individual Federal Defendants “are correct that DHS's
administrative grievance procedure provides an ‘alternative
remedy’ to Bivens, and would be a ‘special factor’ counseling
against the application of Bivens”. Oehler's Memorandum of
Law [23] at 2 n. 1. Based on that concession, I recommend
that Oehler's Bivens claims against the Individual Federal
Defendants be dismissed.
C. Oehler's Motion to Strike
When deciding a Rule 12(b)(6) motion to dismiss, the
court the court may look beyond the allegations of the
Complaint to the “[1] documents attached to the complaint
as an exhibit or incorporated by reference; [2] matters of
which judicial notice may be taken; and [3] documents
upon whose terms and effect the complaint relies heavily,
i.e., documents that are ‘integral’ to the complaint.” Tal
v. Computech International, Inc., 2023 WL 7347219, *3
(E.D.N.Y.), adopted, 2023 WL 7339051 (E.D.N.Y. 2023). All
other materials presented in connection with a Rule 12(b)
(6) motion are considered extraneous and “the court must, in
its discretion, either exclude these materials or convert the
motion to one for summary judgment.” Herrnson v. Hoffman,
2020 WL 6323637, *1 (S.D.N.Y. 2020). See also Rule 12(d).
However, where “the court simply refers to supplementary
materials, but does not rely on them or use them as a basis
for its decision, the 12(b)(6) motion is not converted into a
motion for summary judgment”. Hayden v. County of Nassau,
180 F.3d 42, 54 (2d Cir. 1999).
The Complaint [1] makes the following allegations
concerning the ATF's memos and guidance concerning fuel
filters:
“39. ... ATF has issued memos and other forms of
guidance to Federal law enforcement officers, including
CBP officers, telling them to target packages with fuel
filters.
40. Upon information and belief, as part of these
memos and guidance, ATF instructs CBP and other
law enforcement agents that they should target packages
containing fuel filters and further that they should take
misleading photographs of the fuel filter so that it appears
to be a firearm silencer, even though ATF knows that other
components and further steps are required to convert the
fuel filter into an illegal firearm silencer.
*11 41. ATF further instructs CBP and other law
enforcement officers to use those misleading photographs
and send to local law enforcement agents, along with a
false notification that the unmodified fuel filter is in fact a
firearm silencer.”
In support of its motion to dismiss the Complaint, the
United States relies on the Declaration of Gregory Stimmel,
the Acting Deputy Division Chief of the Firearms and
Ammunition Technology Division of the ATF (“FATD”)
[17-2]. The Declaration attaches FATD Technical Bulletins
17-01 and 20-01, which include “examples and pictures of
common firearm silencers marketed as inline fuel filters.”
Stimmel Declaration [17-2], ¶5. Among the examples is a
photograph of a device marketed as the NAPA 4003 filter
that appears nearly identical to the photograph of the seized
device contained in the search warrant. Compare Stimmel
Declaration [17-2], ¶7 with Exhibit 3 to the search warrant
[4-1] at 13. According to Stimmel, this device has “no fluid
filtering capability” and has a “monocore silencer baffle”
that allows it to function as a firearm silencer without any
modifications (id., ¶8), in contradiction to the allegations
of the Complaint that an unmodified fuel filter could not
function as a firearm silencer. See Complaint [1], ¶¶27, 28, 34.
Oehler seeks to strike the Stimmel Declaration and
attachments [20]. The United States responds that Technical
Bulletins 17-02 and 20-01 are incorporated by reference
in the Complaint and that the Stimmel Declaration merely
authenticates them. See United States’ Opposition [28],
Points I and II.
“For a document to be incorporated by reference, the
complaint must make clear, definite, and substantial
references to the document.” SuperCom, Ltd. v. Sabby
Volatility Warrant Master Fund Ltd., 2023 WL 3919450, *2
(S.D.N.Y. 2023) (emphasis added). The vague references in
the Complaint to “memos and guidance” fall short of that
standard. The term “Technical Bulletin” does not appear in
the Complaint, much less the specific Technical Bulletins
the United States relies upon. Therefore, I conclude that the
Technical Bulletins are not incorporated by reference into the
Complaint. Nor do I see any reason to consider the Stimmel
Declaration which is offered to authenticate the Technical
Bulletins.
Although I have the option of converting the United States’
Rule 12(b)(6) motion into one for summary judgment, it
does not request that occur here, and states that it is not
offering the Technical Bulletins “for their truth, or for any
purpose contrary to the Rule 12(b)(6) standard”. United
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States’ Opposition [28] at 6. At most, the United States asks
that the Technical Bulletins be considered as “supplementary
information”. Id. at 7. Therefore, I recommend that Oehler's
motion to strike be granted, with the United States reserving
its right to file a summary judgment motion based on the
Technical Bulletins and other evidence.
D. The United States’ Motion to Dismiss pursuant to
Rules 12(b)(1) and 12(b)(6)
1. Bivens, 42 U.S.C. § 1983, and State Law Claims
Oehler clarifies that he only brought suit against the United
States “under the FTCA”, and acknowledges that “[t]he
United States is correct that any state law, Section 1983, or
Bivens actions against it must be dismissed because it has not
waived sovereign immunity.” Oehler's Memorandum of Law
[24] at 2 n. 1. Therefore, I recommend that those claims be
dismissed.
2. FTCA Claims
*12 The FTCA waives “sovereign immunity of the United
States for certain torts committed by federal employees’
acting within the scope of their employment.” Brownback
v. King, 592 U.S. 209, 212 (2021). “A claim is actionable
under the FTCA if it alleges the six elements of [28 U.S.C.]
§ 1346(b), which are that the claim be: ‘[1] against the
United States, [2] for money damages, [3] for injury or loss
of property, or personal injury or death [4] caused by the
negligent or wrongful act or omission of any employee of the
Government [5] while acting within the scope of his office or
employment, [and] [6] under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.’ ” Id.
The FTCA's waiver of sovereign immunity is also subject
to enumerated exceptions. See 28 U.S.C. § 2680. “Plaintiffs
bear the initial burden of showing that their claims against
the United States fall within the FTCA's limited waiver of
sovereign immunity”. Cangemi v. United States, 13 F.4th 115,
130 (2d Cir. 2021).
The Complaint [1] asserts FTCA claims for failure to
intervene, false arrest, false imprisonment, and malicious
prosecution. Id. at Third, Fifth, Sixth and Seventh Causes of
Action.
a. Failure to Intervene
The United States argues that Oehler's “failure to intervene
allegations cannot support a claim against the United States
under the FTCA” because “[n]o such tort exists under New
York State law”. Oehler's Memorandum of Law [17-1] at
11. “[F]or liability to arise under the FTCA, a plaintiff's
cause of action must be comparable to a cause of action
against a private citizen’ recognized in the jurisdiction where
the tort occurred. This ‘private analogue’ requirement asks
whether a private person would be responsible for similar
negligence under the laws of the State where the acts
occurred.” McGowan v. United States, 825 F.3d 118, 125 (2d
Cir. 2016)
Since “[o]rdinary citizens have no duty under federal or New
York law to intervene to prevent or stop ... a constitutional
violation .... this is not a claim with respect to which a private
individual could be held liable under New York law, so as
to support a claim against the U.S. under the FTCA”. James
v. City of Rochester, 673 F. Supp. 3d 279, 291 (W.D.N.Y.
2023). See also Ashanti v. City of New York, 77 Misc. 3d
1225(A), *7 (N.Y. Sup. Ct. 2023), aff'd, 225 A.D.3d 443
(1st Dept. 2024) (“[p]laintiff acknowledges that failure to
intervene does not exist under New York State law”); Simon
v. City of New York, 2015 WL 2069436, *2 n. *4 (S.D.N.Y.
2015) (“there is no authority for the proposition that private
parties have an affirmative duty to intervene in preventing
alleged constitutional violations”).
Although Oehler cites to Wilson v. City of New York,
161 A.D.3d 1212, 1215 (2d Dept. 2018) (see Oehler's
Memorandum of Law [24] at 16), Wilson addressed a failure
to intervene claim brought pursuant to 42 U.S.C. § 1983.
Therefore, I recommend that this claim be dismissed for lack
of subject matter jurisdiction. See Finelli v. Drug Enforcement
Agency, 1993 WL 51105, *5 (S.D.N.Y. 1993) (“[t]he United
States has not waived its sovereign immunity with respect to
the[ ] constitutional tort claims and, thus, no subject matter
jurisdiction exists against the United States on such claims”).
b. False Arrest/Imprisonment and Malicious Prosecution
Claims Based on the Conduct of the HSI SAs
The United States argues that the false arrest/imprisonment
and malicious prosecution claims “under the FTCA against
the United States based upon conduct by HSI [SAs] must be
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dismissed because a neutral magistrate found that probable
cause supported the actions that [Oehler] alleges were
unlawful”. United States’ Memorandum of Law [17-1] at 11.
*13 “Where an arrest warrant has been issued by a court
of competent jurisdiction, there is a presumption that the
arrest under that warrant was made on probable cause, thus
precluding liability for false arrest, false imprisonment, or
malicious prosecution”. Martinez v. City of New York, 153
A.D.3d 803, 806 (2d Dept. 2017) (emphasis added). Here,
however, there is no allegation that Oehler's arrest was
pursuant to an arrest warrant. The only warrant alleged in
the Complaint - and the one that the United States appears
to rely upon - granted authority to search Oehler's residence,
not to arrest him. Therefore, the United States’ reliance on the
presumption of probable cause is misplaced.
The United States also relies on Technical Bulletin 20-01
to counter the Complaint's allegations that modifications
to the fuel filter shipped to Oehler would be required in
order to convert it to a firearm silencer. See United States’
Memorandum of Law [17-1] at 13. Although that appears
to be persuasive evidence supportive of its position, I have
recommended that the Bulletin be stricken for purposes of this
motion.
The United States also points to the federal definition of
“firearm silencer” (18 U.S.C. § 921(A)(25)) to argue that “any
of the individual parts [shipped to Oehler] fit[ ] the definition
of firearm silencer”. Id. at 13-14. 9 Although Oehler also
relies on the federal definition of firearm silencer (Oehler
Memorandum of Law [24], § I), neither the search warrant
nor the criminal complaints relate to the federal offense, and
instead charged Oehler with a violation of New York Penal
Law § 265.02(2) that is based on the definition of “firearm
silencer” set forth in New York Penal Law § 265.00(2).
The United States argues that the court “need not to assume
[that Oehler] is correct about the law regarding fuel filters”.
United States’ Reply Brief [27] at 3. I agree that courts
“are not bound to accept as true a legal conclusion couched
as a factual allegation”, Papasan v. Allain, 478 U.S. 265,
286 (1986), but that is not what has occurred here. Oehler
makes a variety of factual allegations supportive of the
fact that probable cause was lacking that he possessed a
firearm silencer. For instance, he alleges that he purchased a
“fuel filter” through a “commercial website” for “one of his
vehicles”, and that the fuel filter he purchased “came with
only one end cap drilled”, and [t]herefore, unmodified, could
not possibly be used as a firearm silencer”. Complaint [1],
¶¶22, 29.
There may be other arguments sufficient to warrant dismissal
of these claims as pled or evidence sufficient to entitle the
United States to summary judgment, but they have not been
argued or presented at this stage. Therefore, I recommend that
this portion of the motion be denied.
c. Claims Based on the Conduct
of the John Doe CBP Officers
In seeking dismissal of these claims the United States raises a
number of subject matter jurisdiction challenges. In addition
to its argument that Oehler failed to timely satisfy the FTCA's
presentment requirements, the United States contends that
his FTCA claims are barred by the due care and detained
goods exceptions (28 U.S.C. §§ 2680(a), (c)), and because
his claims lack a private party analogue. See United States’
Memorandum of Law [17-1] at §§ IV, VI-VIII. It also
challenges the facial sufficiency of the Complaint. See id., § V.
*14 Generally, “[a] court faced with a motion to dismiss
pursuant to both Rules 12(b)(1) and 12(b)(6) must decide the
jurisdictional question first because a disposition of a Rule
12(b)(6) motion is a decision on the merits and, therefore, an
exercise of jurisdiction.” Dutrow v. New York State Gaming
Commission, 2014 WL 11370355, *3 (E.D.N.Y. 2014), aff'd,
607 Fed. Appx. 56 (2d Cir. 2015); Sinochem International
Co. Ltd. v. Malaysia International Shipping Corp., 549 U.S.
422, 430-31 (2007) (“a federal court ... may not rule on the
merits of a case without first determining that it has ... subject-
matter jurisdiction”). Therefore, I will first address each of the
United States’ jurisdictional challenges. See United States’
Memorandum of Law [17-1], §§ IV, VI-VIII.
i. Oehler's Compliance with the
FTCA's Presentment Requirements
“If a plaintiff fails to comply with the FTCA's requirements,
the court lacks subject matter jurisdiction.” Santiago v. United
States, 2004 WL 758196, *1 (E.D.N.Y. 2004). Among those
requirements, the FTCA states that “[a] tort claim against the
United States shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years
after such claim accrues or unless action is begun within six
months after the date of mailing, by certified or registered
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mail, of notice of final denial of the claim by the agency
to which it was presented”. 28 U.S.C. § 2401(b) (emphasis
added).
Notwithstanding its “use of the word ‘or’ to join its
requirements, FTCA claimants must comply with both
the two-year filing of claim and the six-month filing of
suit requirements”. Gutierrez-Flores v. U.S. Department of
Justice, 2024 WL 343137, *4 (W.D.N.Y. 2024) (emphasis
added); United States v. Wong, 575 U.S. 402, 405 (2015);
Willis v. United States, 719 F.2d 608, 610 (2d Cir. 1983);
Ellison v. United States, 531 F.3d 359, 363 (6th Cir. 2008).
As the Second Circuit has explained:
“It is beyond dispute that ‘or’ generally is a disjunctive ....
However, ... ‘[w]ere we to read the ‘or’ in the section as
really intending the disjunctive, a claimant who filed a
claim with the agency within two years would then be able
to bring it to a District Court at any remote future time
after the agency denied him relief.’ It could also be said
that such a reading would mean that there would be no time
limitation on the filing of claims with agencies”.
Willis, 719 F.2d at 610.
The United States’ motion focuses on Oehler's compliance
with the two-year claim presentment deadline. First, it argues
that Oehler never filed an administrative claim with CBP. See
United States’ Memorandum of Law [17-1] at 16. Although
the FTCA requires the claim to “be presented to the Federal
agency whose activities gave rise to the claim” (28 C.F.R. §
14.2(b)(1)), there is “no requirement that such a claim be filed
with every affected agency”. Thomas v. United States, 2005
WL 757268, *7 (E.D. La. 2005), aff'd, 176 F. App'x 474 (5th
Cir. 2006). “When more than one Federal agency is or may
be involved in the events giving rise to the claim, an agency
with which the claim is filed shall contact all other affected
agencies in order to designate the single agency which will
thereafter investigate and decide the merits of the claim.” 28
C.F.R. § 14.2(b)(2). So long as the claim provides notice of
the “potential involvement” of another agency, it is deemed
to have also been filed with that agency. Mohammad v. VA
Rooming House, 2008 WL 428011, *4 (E.D.N.Y. 2008).
The United States argues that neither Oehler's claim (form
SF-95) dated January 20, 2023 ([1-1] at 4) nor cover letter
(id. at 2) identified any CBP involvement. However, the
SF-95 attached and expressly referenced paragraphs of a
Complaint dated January 20, 2023 that is substantially similar
to the Complaint that was ultimately filed in this action,
which identified John Doe CBP Officers as defendants and
identified their alleged conduct. [1-1] at 7-32. Since even a
cursory review of that Complaint reveals the existence of an
alleged injury resulting from the conduct of unidentified CBP
Officers, I conclude that Oehler is deemed to have filed his
claim with CBP. Compare with Green v. United States, 2022
WL 966864, *9 (S.D. 2022) (“[r]eading the administrative
claim in its entirety, Plaintiffs simply failed to put the DVA on
notice that they were also asserting claims against the DOD.
One passing reference to a singular act or omission by a DOD
employee was not sufficient to notify the DVA of a claim
against the DOD”).
*15 As to the timeliness of that claim, Oehler does not
dispute that ICE's receipt of the claim, rather than the date
the claim was mailed, governs its timeliness (see Cooke v.
United States, 918 F.3d 77, 82 (2d Cir. 2019); Joseph v.
United States, 2024 WL 360663, *4 (E.D.N.Y. 2024)), or that
his claim was received by ICE on January 31, 2023 (Litz
Declaration [17-4], ¶8). See United States’ Memorandum of
Law [17-1] at 15-17. Instead, he disputes the accrual date
of his claim against the John Doe CBP Officers. The United
States argues that “the last of CBP's alleged tortious conduct
occurred on January 25, 2021”, when it allegedly provided
false and misleading information concerning the contents of
the package to HSI. United States’ Memorandum of Law
[17-1] at 17. See Complaint [1], ¶¶32-33. By contrast, Oehler
argues that “it is improper to cut off the John Doe defendants’
liability on January 25, 2021, the last day they communicated
with their fellow officers regarding the contents of the
package”. Oehler's Memorandum of Law [24] at 9. Although
neither party offers much on this issue, I conclude that Oehler
has the better argument.
“Federal law determines the date that an FTCA claim
accrues.” A.Q.C. ex rel. Castillo v. United States, 656 F.3d
135, 139 (2d Cir. 2011). Generally, “[a]n FTCA claim accrues
at the time of the plaintiff's injury”. Tourchin v. United States,
2009 WL 39007, *1 (2d Cir. 2009) (Summary Order); Ramos
ex rel. Diaz v. Bronx-Lebanon Hospital Center, 2011 WL
4634191, *1 (S.D.N.Y. 2011) (“[t]he FTCA's two-year statute
of limitations generally begins to run at the time of injury”).
Here, Oehler did not have notice of his injury until the search
was executed on or about February 11, 2021, within two years
of when ICE received his claim. See James v. County of
Albany, N.Y., 1993 WL 539546, *1 (N.D.N.Y. 1993) (“[i]n
the case of false arrest or unreasonable search and seizure,
the cause of action accrues on the day of the arrest or search
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and seizure”). Therefore, I conclude that Oehler satisfied the
FTCA's presentment requirements.
ii. Private Analogue
The United States argues that there can be no private
analogue here “[b]ecause only the federal government has
the authority to enforce federal laws at ports of entry,
and make customs determinations concerning lawful entry,
detention, and seizure of goods and merchandise”. United
States’ Memorandum of Law [17-1] at 25. However, “all
Government activity is inescapably ‘uniquely governmental’
in that it is performed by the Government”. Indian Towing
Co. v. United States, 350 U.S. 61, 67 (1955). As the Second
Circuit has explained, “[t]o say that the challenged action is
one that only the federal government does in fact perform
does not necessarily mean that no private analogue exists”.
Liranzo v. United States, 690 F.3d 78, 94 (2d Cir. 2012). “
‘[T]he presence of identical private activity’ [is] not required
to find a private analogue, because the FTCA's statutory
phrase ‘under like circumstances’ does not mean ‘under the
same circumstances.’ ” Id. (quoting Indian Towing Co., 350
U.S. at 64, 67 (emphasis in original)).
Moreover, under the FTCA's private analogue requirement,
“a plaintiff's cause of action must be comparable to a cause of
action against a private citizen recognized in the jurisdiction
where the tort occurred.” Watson v. United States, 865 F.3d
123, 134 (2d Cir. 2017) (emphasis added). “This requires that
the claims have ‘private-sector analogue[s]’ in the relevant
state's tort law.” Leticia v. United States, 2023 WL 7110953,
*19 (E.D.N.Y. 2023) (quoting United States v. Olson, 546
U.S. 43, 45 (2005)).
The causes of action here are for false arrest, false
imprisonment and malicious prosecution and the government
fails to make any argument that there is not a private analogue
in New York State's tort law for those offenses. See Liranzo,
690 F.3d at 96 (“the FTCA explicitly waives sovereign
immunity for ‘any claim’ based on the ‘acts or omissions
of investigative or law enforcement officers’ ‘arising ...
out of ... false imprisonment [and] false arrest.’ 28 U.S.C.
§ 2680(h) (emphasis added). The plain language of the
statute suggests that the United States has indeed waived its
sovereign immunity from suit as to Liranzo's ‘claim,” which
‘aris[es] ... out of ... false imprisonment [and] false arrest’
”). Therefore, I conclude that Oehler satisfies the private
analogue requirements.
iii. Due Care Exception
*16 The FTCA waiver of sovereign immunity excludes
“[a]ny claim based upon an act or omission of an employee
of the Government, exercising due care, in the execution of a
statute or regulation, whether or not such statute or regulation
be valid”. 28 U.S.C. § 2680(a). “This exception is part of
the statutory scheme which is intended to assure that ‘the
legality of a rule or regulation should (not) be tested through
the medium of a damage suit for tort.’ ” Myers & Myers, Inc.
v. U. S. Postal Service, 527 F.2d 1252, 1261 (2d Cir. 1975).
To determine whether the due care exception bars a particular
claim, both parties agree that the two-part test of Welch v.
United States, 409 F.3d 646, 652 (4th Cir. 2005) applies.
“Under Welch, a court first ‘determines whether the statute
or regulation in question specifically prescribes a course of
action for an officer to follow’ and, second, if it finds in the
affirmative, ‘inquires as to whether the officer exercised due
care in following the dictates of that statute or regulation.’ ”
D.J.C.V. v. United States, 605 F. Supp. 3d 571, 589 (S.D.N.Y.
2022).
The United States argues that “the CBP John Doe(s) are
alleged to have targeted a shipment, conducted a physical
examination of the shipment and device contained therein,
and determined that the device's components were designed
and intended for use in assembling or fabricating a firearm
silencer”. United States’ Memorandum of Law [17-1] at 21.
Since this was contraband, “pursuant to 19 U.S.C. § 1595a(c)
(1)(C) - which specifically prescribes a course of action to be
taken in this instance - a CBP officer [was] mandated to seize”
it. Id. See also id. at 22 (“CBP had both the authority and,
indeed, the responsibility to seize the imported merchandise
pursuant to 19 U.S.C. § 1595a(c)(1)(C)”).
That may be so, but Oehler's claims against the John Doe
CBP Officers do not arise from the seizure of the fuel filter,
but rather from the alleged false notification they provided
to other law enforcement officers that Oehler had received
a firearm silencer. The United States points to no statute or
regulation that required them to make such a notification.
See Oehler's Memorandum of Law [24] (“the United States
fail[s] to identify a statute that permitted the federal officers’
conduct”). Therefore, I conclude that this exception does not
apply.
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iv. The Detained Goods Exception
The FTCA specifically excepts from its waiver of sovereign
immunity “[a]ny claim arising in respect of ... the detention
of any goods, merchandise, or other property by any officer
of customs or excise or any other law enforcement officer”.
28 U.S.C. § 2680(c). 10 Oehler argues that the detained
good exception “ ‘does not apply where the goods [i.e., fuel
filter] are no longer in the possession of the government,
and therefore cannot be regarded as being detained.’ ” Mora
v. United States, 955 F.2d 156, 160 (2d Cir. 1992) (citing
Alliance Assurance Co. v. United States, 252 F.2d 529,
533-34 (2d Cir. 1958)).” Oehler's Memorandum of Law [24]
at 12.
Oehler's argument is not persuasive. In Alliance Assurance,
the Second Circuit held that § 2680(c) “does not and was not
intended to bar actions based on the negligent destruction,
injury or loss of goods in the possession or control of the
customs authorities”. 252 F.2d at 534. However, in Kosak
v. United States, 465 U.S. 848, 854–62 (1984), the Supreme
Court rejected that interpretation of § 2680(c), under which
claims for loss of detained property would not be excluded
from the FTCA. Although the Second Circuit subsequently
“endorsed its holding of Alliance Assurance in the Mora
opinion”, Deutsch v. United States, 2004 WL 633236, *7
(E.D.N.Y. 2004), the Second Circuit has since recognized that
the holding in Alliance Assurance “was explicitly rejected
by the Supreme Court in Kosak”. Adeleke v. United States,
355 F.3d 144, 154 (2d Cir. 2004). See also Hallock v. United
States, 253 F. Supp. 2d 361, 368 n. 12 (N.D.N.Y. 2003)
(“Mora is not followed to the extent it relies upon its prior
decision in Alliance Assurance Co. ... The Supreme Court
[in Kosak] specifically took issue with the statement by the
court in Alliance Assurance that the exception does not bar
actions based on the negligent destruction of property in the
possession or control of customs officers and the Court's
holding, on its face, seems very much to usurp, or at the
very least contradict, the statement”); Schreiber v. United
States, 1997 WL 563338, *4 (S.D.N.Y. 1997) (“[i]t is difficult
to make sense of the Mora court's citation of the language
in Alliance Assurance that the Supreme Court cast aside in
Kosak ... without any mention of Kosak”).
*17 I have doubts that Oehler's claims, which focus on
the John Doe CBP Officers’ alleged false notification and
relate to his post-search arrest and prosecution, arise from the
detention of his fuel filter. See Cervantes v. United States,
330 F.3d 1186, 1189 (9th Cir. 2003) (“the exception does not
protect the government, whatever it does with a once-detained
good, for the rest of that good's existence. The plain text of
the statute says the claim must relate to the detention, not to
any activity that happened to involve a once-detained item”).
However, since these arguments were not raised by Oehler,
who bears the burden of demonstrating that his claims fall
within the FTCA's limited waiver of sovereign immunity, I
conclude that this exception to the United States’ waiver of
sovereign immunity applies, and recommend that the claim
be dismissed. In any event, even if sovereign immunity did
not bar Oehler's claims, I would conclude, for the reasons that
follow, that the claims, as pled, fail to state a claim.
v. Failure to State a Claim 11
The United States challenges the facial sufficiency of
the Complaint, arguing that Oehler “pleads absolutely no
facts whatsoever that even indicate any CBP employees
were present for, let alone participated in, [his] arrest
or confinement of any kind”, or that “any CBP officers
initiated, or in any way participated in, [his] state criminal
prosecution”. United States’ Memorandum of Law [17-1] at
§ V.
Oehler's response focuses on the Franks liability of the John
Doe CBP Officers. For instance, he contends that although the
“CBP officers were not present for the execution of the search
warrant”, they may still be “held responsible for their actions
leading up to the issuance of the warrant”, and that “[w]hen
assessing a challenge to a warrant, the conduct of each officer
in the chain of information [is] analyzed as a potential source
of Franks liability, not just the officer who drafted the warrant
application or those who conducted the search.” Oehler's
Memorandum of Law [24] at 6 (citing United States v. Calisto,
838 F.2d 711 (3d Cir. 1988)). However, the Complaint asserts
no unreasonable search and seizure claim under the FTCA.
See Complaint [1], First and Second Claims for Relief.
In any event, even if such claims were asserted against
the United States pursuant to the FTCA, lacking are any
allegations that the John Doe CBP Officers “had any contact
with [Detective Nietzel] the search warrant affidavit affiant”
or “even knew a search warrant was being obtained”. United
States’ Reply Brief [27] at 10. The only FTCA claims asserted
here relate to Oehler's subsequent arrest and prosecution,
but there are no allegations that the John Doe CBP Officers
played any role in Oehler's arrest or prosecution. See Jordan
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v. Pisano, 80 Misc. 3d 1207(A), *6 (N.Y. Sup. Ct. 2023) (“the
amended complaint does not plead any facts establishing that
Officer Pisano was responsible for the prosecution of plaintiff,
in that the amended complaint fails to allege what Officer
Pisano did to make him liable for malicious prosecution”).
*18 Citing to Kenneson v. Parker, 2022 WL 444887 (D.
Conn. 2022), Oehler argues in passing that the initiation
element of a malicious prosecution claim can be established
“by providing ‘false information’ in [a] warrant application”.
Oehler's Memorandum of Law [24] at 6. However, in
Kenneson the defendants allegedly knowingly failed to
include exculpatory information in an application for an
arrest warrant, 2022 WL 4448875, *3-4, whereas here the
allegedly false information was used in obtaining a search
warrant.
“To initiate a prosecution, a defendant must do more than
report the crime or give testimony. He must play an active role
in the prosecution, such as giving advice and encouragement
or importuning the authorities to act.” Manganiello v.
City of New York, 612 F.3d 149, 163 (2d Cir. 2010).
A law enforcement officer initiates a criminal proceeding
for purposes of a malicious prosecution claim by bringing
“formal charges and ha[ving] the person arraigned, or fill[ing]
out complaining and corroborating affidavits or sw[earing]
to and sign[ing] a felony complaint; or “[a]lternatively, an
officer initiates a prosecution by creating material, false
information and forwarding that information to a prosecutor
or by withholding material information from a prosecutor.”
Santiago v. City of Yonkers, 2023 WL 2648649, *8 (S.D.N.Y.
2023). See also Herrera-Amador v. New York City Police
Department, 2021 WL 3012583, *5 (E.D.N.Y. 2021). The
Complaint contains no allegations that the John Doe CBP
Officers had any involvement in charging Oehler, provided
false information to the prosecutor, or otherwise played any
role in Oehler's prosecution. Therefore, as pled, I recommend
that the FTCA claims based on the conduct of the John Doe
CBP Officers be dismissed.
CONCLUSION
For these reasons, I recommend that:
-- Oehler's motion to strike [20] be granted;
-- the County Defendants’ motion to dismiss [4] be granted,
except to the extent that it seeks to dismiss the malicious
prosecution claim against Detective Nietzel;
-- the Individual Federal Defendants’ motion to substitute and
dismiss [16] be granted; and
-- the United States’ motion to dismiss [17] be granted,
except to the extent that it seeks to dismiss the FTCA claims
against the United States for malicious prosecution and false
arrest/imprisonment premised on the conduct of HSI SAs
DellaPenta, Colafranceschi, and Gaczewski.
Unless otherwise ordered by Judge Sinatra, any objections to
this Report and Recommendation must be filed with the clerk
of this court by August 20, 2024. Any requests for extension
of this deadline must be made to Judge Sinatra. A party who
“fails to object timely ... waives any right to further judicial
review of [this] decision”. Wesolek v. Canadair Ltd., 838 F.
2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155
(1985).
Moreover, the district judge will ordinarily refuse to consider
de novo arguments, case law and/or evidentiary material
which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v.
Massachusetts Municipal Wholesale Electric Co., 840 F. 2d
985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and
(c) of this Court's Local Rules of Civil Procedure, written
objections shall “specifically identify the portions of the
proposed findings and recommendations to which objection
is made and the basis for each objection ... supported by
legal authority”, and must include “a written statement either
certifying that the objections do not raise new legal/factual
arguments, or identifying the new arguments and explaining
why they were not raised to the Magistrate Judge”. Failure to
comply with these provisions may result in the district judge's
refusal to consider the objections.
All Citations
Not Reported in Fed. Supp., 2024 WL 4989300
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Footnotes
1 Bracketed references are to CM/ECF docket entries and page references are to CM/ECF pagination.
2 Although a motion to strike is ordinarily non-dispositive, out of an abundance of caution I have treated it as
dispositive since it bears on the United States’ motion to dismiss.
3 “[T]he Monell standard applies to Plaintiff's official capacity claims.” Fate v. Petranker, 2020 WL 3640007,
*7 (S.D.N.Y. 2020).
4 Curiously, both parties base their arguments on the federal definition of “firearm silencer”, which is different
from the state definition applicable to the search warrant. See County Defendants’ Memorandum of Law [4-3]
at 15; Oehler's Memorandum of Law [22] at 7.
5 Although not raised by Oehler as a falsehood or material omission, the Complaint alleges that on February
1, 2021 Oehler provided CBP with a form indicating that he “wished to ‘ABANDON’ the package and fuel
filter” (Complaint [1], ¶55), yet that fact is not mentioned in the subsequent search warrant application, which
characterized this as a “controlled delivery” suggesting that the package remained in transit.
6 It appears from the Complaint that Oehler was charged with possession of the fuel filter that was the subject
of the controlled delivery, but this is not expressly alleged.
7 28 U.S.C. § 2679(d)(1) states that “[u]pon certification by the Attorney General that the defendant employee
was acting within the scope of his office or employment at the time of the incident out of which the claim
arose, any civil action or proceeding commenced upon such claim in a United States district court shall be
deemed an action against the United States under the provisions of this title and all references thereto, and
the United States shall be substituted as the party defendant.”
8 For the reasons discussed above and those argued by the Individual Federal Defendants (Individual Federal
Defendants’ Memorandum of Law [16-1] at 21-22; Reply Memorandum of Law [26] at 8-9), I conclude that
Oehler's conspiracy claim is also not sufficiently pled.
9 Contrary to the United States’ own argument, Technical Bulletin 17-02, states that “the statute speaks of a
device ‘for’ silencing or muffling. Therefore, mere possession of a ‘solvent trap’ or components which could
be used in the assembly of a firearm silencer does not necessary constitute possession of a firearms silencer.
Intent must be demonstrated or communicated.” [17-1] at 11 (emphasis in original).
10 As the United States recognizes, 28 U.S.C. § 2680(c) contains an exception for certain claims based on injury
or loss of goods while in the possession of CBP, which is inapplicable here. See United States’ Memorandum
of Law [17-1] at 23 n. 6.
11 The United States treats this portion of its motion as being brought pursuant to Rule 12(b)(6). However, “in
the unique context of the FTCA, all elements of a meritorious claim are also jurisdictional .... So ... a plaintiff
must plausibly allege all six FTCA elements not only to state a claim upon which relief can be granted but
also for a court to have subject-matter jurisdiction over the claim. That means a plaintiff must plausibly allege
that the United States, if a private person, would be liable to the claimant under state law both to survive a
merits determination under Rule 12(b)(6) and to establish subject-matter jurisdiction.” Brownback, 592 U.S.
at 217-18. See also Salamone v. United States, 618 F. Supp. 3d 146, 151 (S.D.N.Y. 2022) (“if the FTCA
claims fail to state a claim upon which relief can be granted under Rule 12(b)(6), the Court lacks subject
matter jurisdiction over the claims and will dismiss them pursuant Rule 12(b)(1)”).
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KeyCite Blue-Striped Flag
Appeal Filed by Salaman v. Carney, 2nd Cir., September 25, 2025
2025 WL 2432674
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Luis SALAMAN, Plaintiff,
v.
David CARNEY, et al., Defendants.
CASE NO. 3:25-CV-482 (KAD)
|
Signed August 22, 2025
Attorneys and Law Firms
Luis Salaman, Central Falls, RI, Pro Se.
INITIAL REVIEW ORDER
RE: COMPLAINT (ECF NO. 1)
Kari A. Dooley, United States District Judge
*1 On March 24, 2025, Plaintiff, Luis Salaman (“Salaman”),
an inmate at Wyatt Detention Facility (“Wyatt”) in Central
Falls, Rhode Island, filed this Complaint pro se under
42 U.S.C. § 1983, naming seventeen federal agents as
Defendants. The Complaint brings claims pursuant to Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971) (“Bivens”) for: (1) excessive force
and an unreasonable search and seizure under the Fourth
Amendment; (2) substantive due process violations under
the Fourteenth Amendment; (3) denial of equal protection
under the Fourteenth Amendment; (4) cruel and unusual
punishment and deliberate indifference to serious medical
needs under the Eighth Amendment; and (5) recklessness. As
set forth herein, all of the claims in Plaintiff's Complaint are
DISMISSED pursuant to 28 U.S.C. § 1915A.
Standard of Review
The Court must review prisoner civil complaints and dismiss
any portion of the complaint that is frivolous or malicious,
that fails to state a claim upon which relief may be granted, or
that seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915A(a)–(b). In reviewing
a pro se complaint, the Court must assume the truth of the
allegations and interpret them liberally to “raise the strongest
arguments [they] suggest[ ].” Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007); see also Tracy v. Freshwater, 623 F.3d 90,
101–02 (2d Cir. 2010) (discussing special rules of solicitude
for pro se litigants). Although detailed allegations are not
required, the complaint must include sufficient facts to afford
the defendants fair notice of the claims and the grounds
upon which they are based and to demonstrate a right to
relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555–56 (2007).
Conclusory allegations are not sufficient. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
Allegations
The Court has considered all of the allegations set forth in the
Complaint and recites herein only those facts pertinent to its
initial review.
In the early morning hours of April 5, 2022, members of
the New Haven FBI Safe Street Gang Task Force and the
FBI swat team (collectively, the “Swat Team”) assembled,
to conduct a “raid” on a home in New Haven, Connecticut.
Compl., ECF No. 1 at ¶ 23. Without announcing themselves,
the Swat Team rammed doors in the home and threw
flashbangs. 1 Id. Salaman was asleep with his girlfriend in the
home when the noise from the Swat Team's entry awakened
the couple. Id. Salaman did not hear the Swat Team announce
themselves, but he heard someone shout “open the mother
fucking door.” Id. Salaman also heard someone speaking on
a loudspeaker or bullhorn outside the home. Id. That person
was saying, “[t]his is the FBI[.] [W]e know you are there or
inside[.] [O]pen the door or come out with your hands up ...”
Id.
*2 Salaman knew who was in the home when he heard the
announcement. Id. at ¶ 24. Salaman attempted to comply with
the Swat Team's demands by reaching for the door to open
it. Id. As Salaman did so, Defendant Special Agent (“SA”)
David Carney, without warning, “started to recklessly shoot
live rounds with his shot gun ....” Id. The Swat Team leader—
Defendant SA Bullets Campbell—ordered agents to “shotgun
breach” the kitchen door. Id. Six shotgun blasts were fired at
the door. Id. The shots penetrated the door and struck Salaman
in his hands and knees. Id.at ¶ 24–25. Agents then slammed
Salaman on the floor and dragged him into the living room.
Id. at ¶ 25.
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Defendant Carney came into the living room and pointed
his shotgun at Salaman. Id. at ¶ 27. Defendant Carney told
Salaman not to move and to put his hands behind his back.
Id. Salaman told Defendant Carney that Salaman could not
do so because he was injured. Id. Defendant Carney told
Salaman not to move, handcuffed Salaman, and told him that
someone would look at his injuries. Id. Defendant Carney
took Salaman downstairs and outside. Id. at ¶ 28. Salaman
told Defendant Carney that he was in pain. Id. Agents
walked Salaman to a car, where another agent asked Salaman
questions. Id. Defendants SA Burke and SA Domachowski
transported Salaman in a car to the FBI field office in New
Haven. Id. During the car ride, Salaman told Defendants
Burke and Domachowski that he was in pain and needed
medical treatment. Id. Defendants Burke and Domachowski
told Salaman that he would be evaluated at the field office.
See id.
Salaman told Defendants Burke and Domachowski, as well as
Defendant SA Tae Kim, that he was in pain when they arrived
at the field office. Id. at ¶ 29. Those same Defendants placed
Salaman in an interview room, but allowed him to leave to use
the bathroom. Id. Once back in the interview room, Defendant
Burke told Salaman that paramedics were en route to evaluate
him. Id. at ¶ 30. Paramedics soon arrived to assess Salaman's
injuries. Id. Salaman told paramedics he was in pain, and
the paramedics cleaned and bandaged Salaman's wounds. Id.
Defendant Burke photographed Salaman's injuries and told
Salaman that agents would take him to the hospital “to be
looked at,” though agents failed to do so. Id. Salaman was
instead taken to court, where another agent told Salaman
that he would be taken to the hospital after court. Id. at ¶
31. Instead, after his court proceeding, agents transported
Salaman to Wyatt. Id. at ¶ 32. Wyatt medical staff evaluated
Salaman at the jail. Id. Salaman has remained at Wyatt and
has never been to the hospital. Id.
Discussion
Through this civil action, Salaman seeks damages, as well
as injunctive and declaratory relief, against seventeen federal
agents (collectively, “Defendants”). See Compl. at pp. 2–
6, 31–32. Salaman asserts five claims against Defendants
for: (1) excessive force and unreasonable search and seizure
under the Fourth Amendment; (2) substantive due process
violations under the Fourteenth Amendment; (3) equal
protection violations under the Fourteenth Amendment; (4)
cruel and unusual punishment and deliberate indifference to
serious medical needs under the Eighth Amendment; and (5)
recklessness. Id. at pp. 17–28. The Court will address these
claims—each of which arises under Bivens—in turn.
Bivens Actions Generally
Section 1983 creates a specific damages remedy for plaintiffs
whose constitutional rights are violated by state officials. See
Ziglar v. Abbasi, 582 U.S. 120, 130 (2017). But Congress
has not created a similar statutory remedy for such claims
against federal officials (e.g., FBI agents) acting under the
color of federal law. See id. To state a claim for relief under
Bivens, a plaintiff must allege facts plausibly showing that:
(1) the challenged action was attributable to a federal agent
acting under color of federal authority, and (2) such conduct
deprived him of a constitutional right. See Thomas v. Ashcroft,
470 F.3d 491, 496 (2d Cir. 2006) (citing Bivens, 403 U.S. at
389).
*3 Nevertheless, not all constitutional violations give rise
to a damages remedy under Bivens. The Supreme Court
has recognized a remedy for damages in three contexts:
(1) a Fourth Amendment search and seizure suit against
federal narcotics officers (Bivens); (2) a Fifth Amendment
due process suit against a congressman-employer on the
grounds of gender discrimination (Davis v. Passman, 442
U.S. 228 (1979)); and (3) an Eighth Amendment cruel and
unusual punishment suit against federal jailers for failure to
provide adequate medical treatment (Carlson v. Green, 446
U.S. 14 (1980)). See Abbasi, 582 U.S. at 131. After those
decisions, however, the Supreme Court has “consistently
rebuffed requests to add to the claims allowed under Bivens.”
Hernández v. Mesa, 589 U.S. 93, 102 (2020); see also
Egbert v. Boule, 596 U.S. 482, 502 (2022) (“[I]f we
were called to decide Bivens today, we would decline to
discover any implied causes of action in the Constitution.”).
Indeed, “[g]iven the notable change in the [Supreme] Court's
approach to recognizing implied causes of action ..., the Court
has made clear that expanding the Bivens remedy is now a
‘disfavored’ judicial activity.” Abbasi, 582 U.S. at 135.
To determine whether a plaintiff's claim may proceed under
Bivens, courts must conduct a two-step analysis. Egbert, 596
U.S. at 492. The first step asks “whether the case presents
‘a new Bivens context’—i.e., is it ‘meaningful[ly]’ different
from the three cases in which the [Supreme] Court has implied
a damages action.” Id. (quoting Abbasi, 582 U.S. at 139). “A
case might differ in a meaningful way because of the rank
of the officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of
judicial guidance as to how an officer should respond to the
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problem or emergency to be confronted; the statutory or other
legal mandate under which the officer was operating; the risk
of disruptive intrusion by the Judiciary into the functioning
of other branches; or the presence of potential special factors
that previous Bivens cases did not consider.” Abbasi, 582 U.S.
at 139–40. “A claim may arise in a new context even if it
is based on the same constitutional provision as a claim in a
case in which a damages remedy was previously recognized.”
Hernández, 589 U.S. at 103.
If a case arises in a “new Bivens context,” courts proceed
to the second step, and consider “whether there are any
special factors that counsel hesitation about granting the
extension.” Id. at 102 (cleaned up). The Supreme Court “ha[s]
not attempted to ‘create an exhaustive list’ of factors that
may provide a reason not to extend Bivens, but [it] ha[s]
explained that ‘central to [this] analysis’ are ‘separation-of-
powers principles.’ ” Id. (quotation omitted). Accordingly,
a court “ask[s] whether ‘there are sound reasons to think
Congress might doubt the efficacy or necessity of a damages
remedy,’ and ‘whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh
the costs and benefits of allowing a damages action to
proceed[.]” Id. (quotation omitted). If “Congress has created
‘any alternative, existing process for protecting the [injured
party's] interest’ that itself may ‘amoun[t] to a convincing
reason for the Judicial Branch to refrain from providing a new
and freestanding remedy in damages.’ ” Abbasi, 582 U.S. at
137 (alteration in original) (quoting Wilkie v. Robbins, 551
U.S. 537, 550 (2007)).
In Egbert, the Supreme Court observed that the two-part
test “often resolve[s] to a single question” of “whether
there is any reason to think that Congress might be better
equipped to create a damages remedy.” 596 U.S. at 492. The
Supreme Court has further instructed that “a plaintiff cannot
justify a Bivens extension based on ‘parallel circumstances’
with Bivens, Passman, or Carlson unless [the plaintiff] also
satisfies the ‘analytic framework’ prescribed by the last four
decades of intervening case law.” Id. at 501. Indeed, “[i]f there
is even a single ‘reason to pause before applying Bivens in a
new context,’ a court may not recognize a Bivens remedy.”
Id. at 492 (quoting Hernández, 598 U.S. at 102).
*4 Here, the Court will consider each of Salaman's claims
against the backdrop of this framework.
Fourth Amendment Claims
In Count One, Salaman asserts a Fourth Amendment violation
for excessive force and unreasonable search and seizure. See
Compl. at p. 17. The Court construes Count One as asserting
two distinct claims arising under the Fourth Amendment, and
addresses each in turn.
Excessive Force
Salaman alleges that he was subjected to excessive force
when, in connection with his arrest on April 5, 2022,
Defendant Carney “recklessly shot through [Salaman's] front
kitchen door with his shotgun,” striking Salaman in his hands
and knees.
Until recently, courts in this Circuit were “split as to
whether excessive force claims present a new context
under Bivens.” Carattini v. Behun, No. 21-CV-9373 (NSR),
2024 WL 3274663, at *3 (S.D.N.Y. July 2, 2024). But
in Edwards v. Gizzi, the Second Circuit weighed in. See
107 F.4th 81 (2d Cir. 2024) (per curiam). In that case,
the Second Circuit affirmed the district court's dismissal
of a Bivens claim “seeking damages from court-security
officers and deputy U.S. Marshals for using excessive force
while restraining [plaintiff] in a courtroom.” See id. at 82.
Judge Park, concurring in the judgment, concluded that “an
Eighth Amendment claim for excessive force against officers
in the United States Marshals Service and court-security
personnel–‘is different in a meaningful way’ from the three
Bivens claims the Supreme Court has recognized.” Id. (Park,
J., concurring) (quoting Abbasi, 572 U.S. at 139). However,
Judge Robinson, also concurring in the judgment, recognized
that a Fourth Amendment claim for excessive force may still
be viable. See id. at 88 (Robinson, J., concurring) (citing
Snowden v. Henning, 72 F.4th 237, 239–40, 245–46 (7th
Cir. 2023)) (allowing a “straightforward application of Bivens
itself” to proceed in a Fourth Amendment claim against a
DEA agent for excessive force in making an arrest). Thus,
because Edwards concerned only an excessive force claim
arising under the Eighth Amendment, it does not resolve the
question of whether a Fourth Amendment excessive force
claim “is different in a meaningful way from the three Bivens
claims the Supreme Court has recognized.” Edwards, 107
F.4th at 82 (Park, J., concurring) (internal quotation marks
omitted).
But while Edwards does not squarely address the issue, the
Court is guided by other recent, non-precedential Second
Circuit decisions “affirming the district courts’ findings that
the plaintiffs’ Fourth Amendment Bivens claims presented
a ‘new context.’ ” Carattini, 2024 WL 3274663, at *3 n.3
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(citing Cohen v. Trump, No. 23-35, 2024 WL 20558, at
**2–3 (2d Cir. Jan. 2, 2024) (summary order) (affirming
dismissal of Bivens claims alleging unlawful seizure, based on
“new context” presented by lawsuit against federal officials);
Lewis v. Bartosh, No. 22-3060, 2023 WL 8613873, at *2
(2d Cir. Dec. 13, 2023) (summary order) (affirming dismissal
of Bivens claim alleging excessive force, based on “new
context” presented by suit against Deputy U.S. Marshals)).
“While not explaining their application of the two-part test
from Egbert with precision, the panels in Cohen and Lewis
both relied on the different agencies and federal officers
involved, as well as the existence of an alternative remedy,
in declining to infer a Bivens cause of action in those cases.”
Gray v. Gomez, 728 F. Supp. 3d 264, 271–72 (E.D.N.Y. 2024)
(footnote omitted) (citing Cohen, 2024 WL 20558 at *2–3;
Lewis, 2023 WL 8613873 at *1).
*5 Recent district court decisions addressing Fourth
Amendment Bivens claims are in accord with the Second
Circuit's decisions in Cohen and Lewis. See, e.g., Escobar
v. Correa, No. 22-CV-8434 (MMG), 2024 WL 4042122, at
**4–5 (S.D.N.Y. Sept. 4, 2024) (dismissing Bivens claim
against U.S. Marshals who allegedly “used ‘brutal, retaliatory
excessive force’ against Plaintiff” when arresting him in a
home because claim involved new category of defendant
and plaintiff could bring claim under the FTCA); Shaw v.
United States Marshall, No. 24-CV-5644 (HG), 2024 WL
4574146, at *2 (E.D.N.Y. Oct. 24, 2024) (dismissing Bivens
claim against U.S. Marshal who allegedly breached the
door of plaintiff's home and destroyed her property while
searching home, because claim involved new category of
defendant and plaintiff could bring claim under the FTCA);
German-Andujar v. U.S. Customs & Border Prot., No. 24-
CV-6190 (EAW), 2025 WL 1101514 (W.D.N.Y. Apr. 14,
2025) (dismissing Bivens claim against border patrol agent
who allegedly tackled and beat plaintiff fleeing from an
“unwarranted” search because claim involved new category
of defendant and plaintiff could bring claim under the FTCA).
This case is partially distinguishable from Cohen, Lewis, and
the district court cases cited above, because this case does
not “involve[ ] a ‘new category of defendants.’ ” Egbert,
596 U.S. at 492 (quotation omitted). Indeed, like the plaintiff
in Bivens, Salaman sues FBI agents. See Compl. at ¶¶ 5–
21; Abbasi, 582 U.S. at 140 (noting that Bivens involved
“a claim against FBI agents for handcuffing a man in his
own home without a warrant.”). Nevertheless, even if a claim
does not involve a “new category of defendants,” a Bivens
remedy may still be “unavailable” if there is an “alternative
remedial structure.” See Lewis, 2023 WL 8613873, at *1
(noting that “ ‘if a claim arises in a new context’— such
as if it involves ‘a new category of defendants’—or if
there is an ‘alternative remedial structure,’ a Bivens remedy
is generally ‘unavailable.’ ” (alteration omitted; emphasis
added)); Escobar, 2024 WL 4042122 at *4 (noting that
“a Bivens remedy is unavailable ‘if Congress already has
provided, or has authorized the Executive to provide, an
alternative remedial structure,’ even if existing or alternative
remedies do not provide complete relief.” (quoting Egbert,
596 U.S. at 493)). Such an “alternative remedial structure” is
available here.
Indeed, as with the plaintiffs in Escobar, Shaw, and German-
Andujar, Salaman could bring a claim under the Federal
Torts Claims Act (“FTCA”) related to the FBI agents’ alleged
use of excessive force. See, e.g., Oliveras v. Basile, 440
F. Supp. 3d 365, 374–76 (S.D.N.Y. 2020) (concluding that
the FTCA provided alternative remedial structure precluding
Bivens remedy for false arrest and excessive force claims
in connection with injurious detonation of explosive devices
during raid). 2 As such, the Court concludes that the
availability of this “alternative remedial structure” forecloses
a Bivens action against FBI agents for excessive force under
the Fourth Amendment. See Egbert, 596 U.S. at 497 (that
“Congress has provided alternative remedies for aggrieved
parties in [plaintiff's] position ... independently foreclose
a Bivens action here.”). Thus, any Fourth Amendment
excessive force claim must be dismissed. See 28 U.S.C. §
1915A(b)(1).
Search and Seizure Claim
*6 Salaman's Fourth Amendment search and seizure claim
arises from Defendants’ no-knock raid and arrest of Salaman
in his home in the early morning of April 5, 2022. Unlike
Salaman's excessive force claim, his unlawful search and
seizure claim remains in the “heartland” of Bivens cases. See
Edwards, 107 F.4th at 87 (Robinson, J., concurring). Indeed,
Bivens held that a plaintiff who was handcuffed by FBI agents
in his home without a warrant was entitled to pursue monetary
damages for a Fourth Amendment violation. See Bivens, 403
U.S. at 397; Abbasi, 582 U.S. at 140. It follows that Salaman's
search and seizure claim is not “meaningfully different” from
the claim considered in Bivens. See, e.g., Prado v. Perez,
451 F. Supp. 3d 306, 315 (S.D.N.Y. 2020) (concluding that
plaintiff's claim that he was unconstitutionally arrested and
searched “does not differ in a meaningful way from the core
Bivens context, and thus does not present a ‘new context.’ ”).
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Accordingly, the Court considers the merits Salaman's search
and seizure claim.
The Fourth Amendment protects the rights of the people “to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend.
IV. “A ‘search’ in the context of the Fourth Amendment
occurs when the police intrude upon a person's reasonable
expectation of privacy or if the police otherwise trespass upon
one's person, house, papers, or effects for the purpose of
acquiring information.” Conroy v. Caron, 275 F. Supp. 3d
328, 340 (D. Conn. 2017). “A ‘seizure’ under the Fourth
Amendment occurs when the police intentionally terminate
one's freedom of movement by means of physical force or
by show of their official law enforcement authority.” Id. “In
general, to search, seize property from, or arrest a person in
that person's home, the Fourth Amendment requires a state
actor to have probable cause and a warrant, absent ‘exigent
circumstances or some other exception.’ ” Hart v. Myers, 183
F. Supp. 2d 512, 518 (D. Conn. 2002), aff'd, 50 F. App'x
45 (2d Cir. 2002) (quoting United States v. Gori, 230 F.3d
44, 50 (2d Cir. 2000)). “[B]ecause warrantless searches are
presumptively unreasonable, it is the government's burden to
show that a warrantless search, seizure or arrest fits within one
of the narrowly tailored exceptions to the warrant requirement
of the Fourth Amendment.” Id. at 519 (internal citation and
quotation marks omitted).
Here, Salaman alleges that the Swat Team forcefully entered
a home in which he was sleeping and arrested him. See
Compl. at ¶¶ 23, 27. This was undoubtedly a seizure. And
although Salaman does not indicate one way or another
whether the arrest was pursuant to a warrant founded upon
probable cause or whether it was a warrantless arrest, the
Court takes judicial notice of the fact that Salaman was
arrested pursuant to a warrant. See United States v. Salaman,
Case No. 3:22-CR-76 (SRU), at ECF No. 11. Throughout the
prosecution of Salaman's criminal case, he was represented by
counsel and eventually convicted at trial of several offenses.
See id. at ECF Nos. 499, 502. And having been presented
before a Magistrate Judge on the Complaint/warrant, see id.
at ECF No. 7, Salaman was certainly aware that he was
arrested pursuant to a warrant. Cf. Llorens v. Slavin, No. 3:21-
CV-1096 (SVN), 2021 WL 5988632, at *4 (D. Conn. Dec.
17, 2021) (permitting Fourth Amendment claim to proceed
because “there [we]re no facts to suggest that Plaintiff was
engaged in illegal activity or that Defendants had previously
obtained a warrant for Plaintiff's arrest.”). The Complaint
therefore fails to state a Fourth Amendment claim under
Bivens.
Fourteenth Amendment Claims
Salaman also asserts two claims under the Fourteenth
Amendment: a substantive due process claim and an equal
protection claim, both brought under Bivens. See Compl. at
pp. 20, 24.
Substantive Due Process
*7 A substantive due process claim may be brought under
either the Fifth or Fourteenth Amendment. See County
of Sacramento v. Lewis, 523 U.S. 833 (1998) (analyzing
a substantive due process claim under the Fourteenth
Amendment); Lombardi v. Whitman, 485 F.3d 73, 78 (2d
Cir. 2007) (analyzing a substantive due process claim under
the Fifth Amendment); Tyus v. Newton, No. 3:13-CV-1486
(SRU), 2016 WL 6090719, at *7 (D. Conn. Oct. 18,
2016) (“Claims of due process violations arising under the
Fifth and Fourteenth Amendments are analyzed under the
same standards.”). But regardless, “the Supreme Court has
‘narrowed the scope of substantive Due Process to claims that
are not covered by other provisions of the Constitution.’ ” 20
Dogwood LLC v. Vill. of Roslyn Harbor, No. 23-930, 2024
WL 1597642, at *1 (2d Cir. Apr. 12, 2024) (summary order)
(quoting Hu v. City of New York, 927 F.3d 81, 103 (2d Cir.
2019)). Thus, “[w]here a particular Amendment ‘provides an
explicit textual source of constitutional protection’ against
a particular sort of government behavior, ‘that Amendment,
not the more generalized notion of “substantive due process,”
must be the guide for analyzing’ such a claim.” Albright v.
Oliver, 510 U.S. 266 (1994) (quoting Graham v. Connor, 490
U.S. 386, 395 (1989) (internal quotations omitted)).
Here, because the Fourth and Eighth Amendments plainly
apply to the challenged actions of Defendants, any substantive
due process claim must be dismissed. Indeed, Salaman's
substantive due process claim arises from the same factual
allegations as his Fourth Amendment and Eight Amendment
claims, namely, that Defendants subjected Salaman to
excessive force and unlawfully entered his residence and
arrested him, and were later deliberately indifferent to his
serious medical needs. See Hu, 927 F.3d at 104 (affirming
dismissal of a substantive due process claim because it
“rest[ed] on the same set of factual allegations” as plaintiff's
equal protection claim and therefore “must be analyzed under
the Equal Protection Clause”); Nadeau v. Anthony, No. 3:03-
CV-34 (AWT), 2003 WL 22872150, at *2 (D. Conn. Dec.
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2, 2003) (“[P]laintiff may not pursue a cause of action
under the Fourteenth Amendment for violation of his right to
substantive due process when a cause of action for his claim
exists under the Fourth Amendment.”).
Equal Protection
Salaman's equal protection claim fares no better. While
the Supreme Court “ha[s] allowed a Bivens action to
redress a violation of the equal protection component of
the Due Process Clause of the Fifth Amendment,” Iqbal,
556 U.S. at 675 (citing Davis, 442 U.S. at 228), Salaman's
equal protection claim applies in a “new context” even
though “it is based on the same constitutional provision
as a claim in a case in which a damages remedy was
previously recognized.” Hernández, 589 U.S. at 103; see,
e.g., Sabir v. Williams, No. 3:20-CV-8 (VAB), 2020 WL
3489522, at *6 (D. Conn. June 26, 2020) (concluding that
the plaintiff's “equal protection claim concerning prison
commissary classifications is contextually distinct from
[the] gender discrimination employment claim” in Davis).
Moreover, special factors counsel against applying Plaintiff's
equal protection claim in a new Bivens context, because
Plaintiff has an alternative available remedy under the FTCA.
See id. (concluding plaintiff also had “alternative remedies
available through the Bureau of Prison's administrative
remedies process or a different lawsuit seeking injunctive
relief.”). Accordingly, Salaman's equal protection claim must
be dismissed.
Eighth Amendment Claims
In Count Four, Salaman asserts two claims under the Eighth
Amendment: a cruel and unusual punishment claim and a
deliberate indifference to medical needs claim, both brought
under Bivens. See Compl. at p. 26.
“Although [Salaman] alleges both ‘deliberate indifference’
and ‘cruel and unusual punishment’ by [members of the
Swat Team], ‘these claims are based on the same facts and
are different ways of phrasing the same Eighth Amendment
claim.’ ” Mitchell v. Schauer, No. 3:23-CV-896 (JAM), 2024
WL 1973434, at *3 n.43 (D. Conn. May 3, 2024) (quotation
omitted); see also Quint v. Lantz, 248 F. App'x 218, 220
(2d Cir. 2007) (summary order) (“To prevail on a cruel-and-
unusual punishment claim, a plaintiff must establish both
that his medical condition is ‘objectively serious,’ and that
the defendants he seeks to hold liable acted with ‘deliberate
indifference’ to his medical needs.”); Washington v. City
of Binghamton, 152 F.3d 922 (2d Cir. 1998) (Deliberate
indifference to medical needs claims are brought “under
the Eighth Amendment's Cruel and Unusual Punishments
Clause”).
*8 While the Supreme Court has recognized an implied
damages remedy under the Eighth Amendment in suits
against federal jailers for failure to provide adequate medical
treatment, see Abbasi, 582 U.S. at 131 (citing Carlson, 446
U.S. 14), the Eighth Amendment does not apply to federal
pretrial detainees like Salaman. See Cuoco v. Moritsugu,
222 F.3d 99, 106 (2d Cir. 2000) (concluding that federal
pretrial detainee's claims were analyzed under the Fifth
Amendment, not Eighth Amendment, “[b]ecause as a pre-
trial detainee [plaintiff] was not being ‘punished[.]’ ”).
Accordingly, notwithstanding that both Carlson and this
case involve allegations of deliberate indifference to serious
medical needs, Salaman's claim “arises in a new Bivens
context” because it “is different in a meaningful way from
previous Bivens cases decided by th[e] [Supreme] Court.”
Abbasi, 582 U.S. at 147. First, “[t]he constitutional right is
different here, since Carlson was predicated on the Eighth
Amendment and this claim is predicated on the Fifth.” Abbasi,
582 U.S. 120, 148 (2017). Second, the magnitude of the
alleged deliberate indifference is also different. In Carlson, it
resulted in the plaintiff's death. See Carlson, 446 U.S. at 16
n.1. Here, by Salaman's own photos, it involved an untreated
cut on Plaintiff's knuckle and a dime-sized scrape on his
knee. 3 See Compl. at Ex. 1 (p. 49), Ex. 2 (p. 50).
Additionally, special factors counsel against applying
Plaintiff's claim in a new Bivens context because once
again, Plaintiff has an alternative available remedy under
the FTCA. See, e.g., Bettis v. Grijalva, No. 21-CV-7505
(GWG), 2023 WL 4141869, at *7 (S.D.N.Y. June 23, 2023)
(“[T]he existence of a tort remedy for deliberate indifference
to medical needs under the FTCA by itself strongly counsels
against the creat[ion] of a Bivens remedy.”). Accordingly,
this claim must be dismissed. See, e.g., Bravo v. U.S.
Marshals Serv., 684 F. Supp. 3d 112, 125–26 (S.D.N.Y. 2023)
(dismissing federal pretrial detainee's deliberate indifference
Bivens claim against U.S. Marshals because, among other
reasons, the conduct was not as serious as in Carlson and
plaintiff could sue under the FTCA).
Recklessness Claim
Lastly, Salaman asserts a freestanding claim for
“recklessness” under Bivens. See Compl. at p. 28. Because
“recklessness” is not an independent constitutional tort under
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Section 1983, the Court construes Salaman's “recklessness”
claim as being brought under Connecticut state law. See
Medeiros v. O'Connell, 150 F.3d 164, 170 (2d Cir. 1998)
(noting that a police officer's “recklessness[ ] is not enough to
impose constitutional liability” as a substantive due process
violation); Maitland v. Devlin, No. 3:19-CV-828 (JCH), 2020
WL 13547731, at **2–4 (D. Conn. Jan. 14, 2020) (discussing
statutory and common law “recklessness” causes of action
under Connecticut state law). Nevertheless, it is well-settled
that a plaintiff cannot assert a Bivens claim against a federal
official for a violation of state statutory or common law,
because “[a] plaintiff bringing a claim under Bivens must
allege that he has been deprived of a constitutional right by a
federal agent acting under color of federal authority.” Thomas,
470 F.3d at 496 (emphasis omitted). Accordingly, Salaman's
recklessness claim must be dismissed.
Claims for Injunctive and Declaratory Relief
In addition to seeking damages, Salaman also seeks injunctive
and declaratory relief. See Compl. at p. 31. However, it is
well-settled that “[t]he only remedy available in a Bivens
action is an award for monetary damages from defendants
in their individual capacities.” See Higazy v. Templeton,
505 F.3d 161, 169 (2d Cir. 2007); Cicchiiello v. Warden
Danbury FCI, No. 3:24-CV-1240 (VAB), 2025 WL 437305,
at *2 (D. Conn. Feb. 7, 2025) (“Bivens provides only for
money damages and not for injunctive or declaratory relief.”);
see, e.g., Berry v. Golden, No. 3:24-CV-292 (KAD), 2024
WL 2862294, at *2 (D. Conn. June 6, 2024) (dismissing
request for injunctive relief based on Bivens claims); see
also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001)
(“For people in Bivens’[s] shoes, it is damages or nothing.”)
(citation omitted). Accordingly, and insofar as Salaman's
entire Complaint is brought under Bivens, his claims for
injunctive and declaratory relief must be dismissed.
Conclusion
*9 For all of the foregoing reasons, the Complaint is
DISMISSED. The Clerk of Court is directed to close this
case.
SO ORDERED this 22nd day of August 2025 at Bridgeport,
Connecticut.
All Citations
Slip Copy, 2025 WL 2432674
Footnotes
1 “A flashbang is an explosive diversionary device that generates a blinding light and deafening noise to give
police a tactical advantage by temporarily disorienting those nearby.” Flournoy v. City of Chicago, 829 F.3d
869, 872 (7th Cir. 2016).
2 Neither the Supreme Court nor the Second Circuit has explicitly “decided whether, in the wake of Abbasi,
the availability of an FTCA action precludes the Bivens remedy.” Scott v. Quay, No. 19-CV-1075, 2020 WL
8611292, at *8 (E.D.N.Y. Nov. 16, 2020). Thus, “absent clear guidance,” some courts have been “unwilling to
determine that the FTCA alone is a sufficient alternate remedy.” See Mirvis v. Quay, No. 19-CV-2573 (LDH),
2023 WL 5671935, at *10 (E.D.N.Y. Sept. 1, 2023). But while the Supreme Court and Second Circuit may not
have explicitly stated that the FTCA in particular precludes a Bivens remedy, it need not do so because “ ‘any
alternative, existing process for protecting the [injured party's] interest’ ... itself may ‘amoun[t] to a convincing
reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.’ ” Abbasi,
582 U.S. at 137 (emphasis added; alteration in original) (quoting Wilkie, 551 U.S. at 550); Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 73–74 (2001) (recognizing that state tort law provided alternative means for relief);
Minneci v. Pollard, 565 U.S. 118, 127–130 (2012) (same).
3 These injuries are unlikely “sufficiently serious” to state a deliberate indifference claim on the merits, even if
a Bivens remedy were available. See, e.g., Montavon v. Town of Southington, No. 3:95-CV-1141, 1997 WL
835053, at *4 (D. Conn. Sept. 29, 1997) (plaintiff's cuts and scrapes, unaccompanied by profuse bleeding or
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other conditions, did not constitute a medical condition that was sufficiently serious for purposes of Fourteenth
Amendment).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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KeyCite Yellow Flag
Declined to Extend by Bray v. Bon Secours Mercy Health, Inc., 6th Cir.
(Ohio), March 29, 2024
2020 WL 8611292
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
David SCOTT, Jeremy Cerda, Osman Ak, Merudh
Patel, Gregory Hardy, and Larry Williams, individually
and on behalf of all others similarly situated, Plaintiffs,
v.
Former Warden Herman E. QUAY,
Facilities Manager John Maffeo, and the
United States of America, Defendants.
19-CV-1075 (MKB) (SMG)
|
Filed 11/16/2020
REPORT & RECOMMENDATION
Steven M. Gold United States Magistrate Judge
INTRODUCTION
*1 Plaintiffs David Scott, Jeremy Cerda, Osman Ak,
Merudh Patel, Gregory Hardy, and Larry Williams were each
detained at the Metropolitan Detention Center (“MDC”) in
Brooklyn, New York, on January 27, 2019, when a portion
of the facility lost electrical power. Am. Compl. ¶¶ 3, 8, Dkt.
29. Plaintiffs bring this action on behalf of themselves and
all others similarly situated, asserting claims under Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971),
against defendants Herman E. Quay, the former Warden of the
MDC, and John Maffeo, the Facilities Manager of the MDC.
Am. Compl. ¶¶ 352–69. Plaintiffs Scott and Cerda also assert
a claim on their own behalf and on behalf of a putative class
for negligence under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(b), 2671, et seq., against the United States
of America. Am. Compl. ¶¶ 370–80.
Defendants now move to dismiss the Bivens claims for failure
to state a claim under Rule 12(b)(6) and the FTCA claim for
lack of subject matter jurisdiction under Rule 12(b)(1) of the
Federal Rules of Civil Procedure. Not. of Mot. to Dismiss,
Dkt. 65; Mem. of Law in Supp. of Defs.’ Mot. to Dismiss
(“Defs.’ Mem. of Law”) 3–5, Dkt. 66. The Honorable Margo
K. Brodie has referred defendants’ motion to dismiss to me
for report and recommendation. Order dated June 6, 2020. For
the reasons discussed below, I respectfully recommend that
the motion to dismiss be granted with respect to the Bivens
claims against Quay and Maffeo and denied with respect to
the FTCA claim against the United States.
BACKGROUND
On February 22, 2019, plaintiffs Scott and Cerda commenced
this action by filing a Complaint asserting Bivens claims
against Quay. Compl., Dkt.1. On November 15, 2019,
plaintiffs filed an Amended Complaint, adding Ak, Patel,
Hardy, and Williams as plaintiffs, Maffeo and the United
States of America as defendants, and a claim for negligence
brought by plaintiffs Scott and Cerda under the FTCA. Am.
Compl., Dkt. 29.
As alleged in the Amended Complaint, on January 27, 2019,
the MDC sustained a partial power outage when an electrical
panel caught fire in the jail's control room. Id. ¶ 45. The outage
caused the failure of “a number of systems and equipment,
including overhead lighting and electrical outlets in cells
and common areas, phones, computer systems, and overhead
lighting and electrical outlets in staff offices and common
areas” and the facility thus “switched to emergency lighting.”
Id. ¶¶ 3, 46.
Plaintiffs claim that, as a result of the partial power
outage, they were subjected to unconstitutional conditions of
confinement, including a lack of light, heat, hot meals, clean
water, and hot water, prolonged detention in cells, plumbing
disruptions, lack of access to e-mail, television, and social
telephone calls and visits, curtailment of communication with
counsel, and denial of, or indifference to, requests for medical
attention and care. Id. ¶¶ 57–300. Plaintiffs also allege that
defendants failed to provide them with, among other things,
extra blankets, bedding, clothing, portable space heaters,
flashlights, and toiletries during the partial power outage.
Id. ¶¶ 7, 50, 310. These disruptions allegedly persisted until
power was fully restored on February 3, 2019. Id. ¶ 22.
*2 Plaintiffs further allege that Warden Quay and Facilities
Manager Maffeo, as prison officials, knew that the MDC's
infrastructure was failing, that problems with electricity
and heat were foreseeable, and that a power outage could
occur “at any time.” Id. ¶¶ 16–17, 23–44, 301–03, 320–
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22. Moreover, plaintiffs allege that, during the period of
the partial power outage, Quay and Maffeo were personally
aware of the detainees’ adverse conditions of confinement
and nevertheless failed to take adequate steps to prevent or
alleviate these conditions when they occurred. Id. ¶¶ 16–
17; 303–12, 323–24. In particular, plaintiffs allege that Quay
was aware of “specific warning signs concerning the jail's
electricity and heat,” including three blackouts that occurred
in the weeks leading up to the partial power outage, id. ¶¶
26, 28, and that Maffeo refused to let electricians into certain
relevant areas of the MDC during that time, id. ¶ 33. Plaintiffs
allege that, according to Con Edison, the partial power outage
was due to the MDC's failure to remedy preexisting issues;
rather than fixing these issues, the MDC kept putting “more
demands for more power on a weaker system.” Id. ¶ 39.
DISCUSSION
I. Plaintiffs’ Bivens Claims
A. Legal Standard Applicable to Rule 12(b)(6)
Defendants Quay and Maffeo move to dismiss the Bivens
claims against them for failure to state a claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Defs.’ Mem. of Law at 3. A complaint may survive a motion
to dismiss brought under Rule 12(b)(6) only if it includes
“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. Iqbal sets forth a two-
pronged approach for analyzing motions to dismiss brought
under Rule 12(b)(6). First, the district court must “identify[ ]
pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth.” Id. at 679. Although
“legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Id. Second,
“[w]hen there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.
Furthermore, when considering a motion under Rule 12(b)(6),
a court may generally “look only to the allegations on the face
of the complaint.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.
2007). However, “[i]n certain circumstances, the court may ...
consider documents other than the complaint,” id., such as
“documents attached to the complaint or incorporated in it by
reference, ... matters of which judicial notice may be taken,
or ... documents either in plaintiffs’ possession or of which
plaintiffs had knowledge and relied on in bringing suit.” Brass
v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
B. Bivens and Recent Supreme Court Developments
In Bivens, the Supreme Court recognized a damages
remedy for violations of the Fourth Amendment's prohibition
on unreasonable searches and seizures by federal law
enforcement officers. 403 U.S. at 391–97. Implying a cause
of action for violations of the Fourth Amendment, the Court
determined, was simply a natural extension of its view that
a Court should ensure that every violation of a federally
protected right has a remedy. Ziglar v. Abbasi, 137 S. Ct. 1843,
1855 (2017).
Since first recognizing an implied right of action under the
Constitution, the Supreme Court has allowed a Bivens claim
to proceed in only two other contexts: (1) a federal employee's
employment discrimination claim asserted pursuant to the due
process clause of the Fifth Amendment, Davis v. Passman,
442 U.S. 228 (1979), and (2) a claim for damages under the
Eighth Amendment brought by the estate of a federal prisoner
who died after receiving inadequate medical care, Carlson
v. Green, 446 U.S. 14 (1980). The Court has not extended
Bivens again in the forty years since Carlson was decided.
Abbasi, 137 S. Ct. at 1855 (“These three cases—Bivens,
Davis, and Carlson—represent the only instances in which
the Court has approved of an implied damages remedy under
the Constitution itself.”); see Minneci v. Pollard, 565 U.S.
118, 124–25 (2012) (collecting cases).
*3 The Court has also, since Carlson, altered its perspective
on implied rights of action under the Constitution and noted
that its “recent precedents cast doubt on the authority of courts
to extend or create private causes of action.” Jesner v. Arab
Bank, PLC, 138 S. Ct. 1386, 1402 (2018). In Abbasi, the Court
acknowledged the marked change in its approach to implying
causes of action:
In the mid-20th century, the Court followed a different
approach to recognizing implied causes of action than
it follows now. During this “ancien regime,” the Court
assumed it to be a proper judicial function to provide such
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remedies as are necessary to make effective a statute's
purpose.
***
Later, the arguments for recognizing implied causes of
action for damages began to lose their force.
***
Given the notable change in the Court's approach to
recognizing implied causes of action ... the Court has
made clear that expanding the Bivens remedy is now a
“disfavored” judicial activity.
137 S. Ct. at 1855, 1857 (internal quotation marks and
citations omitted). The Court went so far as to say that, were
Bivens, Davis, and Carlson being decided today, the analysis
—and, presumably, the outcome—might be different. Id. at
1856.
Since Abbasi, the central inquiry when faced with a potential
expansion of Bivens is “ ‘who should decide’ whether to
provide for a damages remedy, Congress or the courts,” and
that the answer to that question “most often will be Congress.”
Id. at 1857 (quoting Bush v. Lucas, 462 U.S. 367, 380 (1983)).
“[S]eparation-of-powers principles are or should be central to
the analysis.” Id.
Abbasi instructs that deciding whether a Bivens claim is
cognizable involves two steps. First, a court must determine
whether the plaintiff's claims are different from those asserted
in previous Bivens cases, such that the case presents a
“new Bivens context.” Id. at 1859. Second, if a case does
present a “new Bivens context,” a court must then consider
whether “there are ‘special factors counselling hesitation in
the absence of affirmative action by Congress.’ ” Id. at 1857
(quoting Carlson, 446 U.S. at 18). The Supreme Court has
not announced a definitive list of those “special factors”
that “counsel[ ] hesitation,” id., but it has stressed that the
question to ask is “whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh the
costs and benefits of allowing a damages action to proceed.”
Id. at 1858. A “special factor” is one that “cause[s] a court
to hesitate before answering that question in the affirmative.”
Id. Notably, the Supreme Court stated in Abbasi that
if there is an alternative remedial
stricture present in a certain case, that
alone may limit the power of the
Judiciary to infer a new Bivens cause
of action. For if Congress has created
any alternative, existing process for
protecting the injured party's interest
that itself may amount to a convincing
reason for the Judicial Branch to
refrain from providing a new and
freestanding remedy in damages.
Id. (internal quotation marks, alterations, and citations
omitted). To constitute a special factor counseling hesitation,
an alternative remedy, such as one under state law, “need
not be perfectly congruent” with a potential Bivens remedy.
Minneci, 565 U.S. at 129.
C. This Case Presents a New Bivens Context
*4 A case presents a “new context” if it is “different in a
meaningful way from previous Bivens cases decided by [the
Supreme Court].” Abbasi, 137 S. Ct. at 1859. Nevertheless,
“even a modest extension is still an extension.” Id. at
1864. The Court in Abbasi listed some relevant measures of
difference, including the rank of the officers involved, the
constitutional right asserted, the level of generality of the
official action in question, the extent of the judicial guidance
available to the officer in question, whether the officer was
operating under specific statutory or other legal mandates, and
whether there is a risk that the Judiciary would be interfering
with the functioning of another branch of the government. Id.
at 1860.
Here, the Amended Complaint alleges that, during the partial
power outage between January 27, 2019, and February
3, 2019, plaintiffs were subjected to harsh conditions of
confinement that included, but were not limited to, (1)
confinement to cells with no light, Am. Compl., ¶¶ 70, 97,
135, 163, 168, 186, 227; (2) lack of heat while outdoor
temperatures were below freezing, id. ¶¶ 63, 90, 105, 123,
148, 169, 192, 233; (3) lack of hot meals and hot water, id.
¶¶ 73, 76, 126, 146, 152, 237, 239; (4) prolonged detention
in cells, id. ¶¶ 69, 114, 128, 145, 174, 198, 236; (5) plumbing
disruptions, id. ¶¶ 119, 206; (6) lack of access to e-mail,
social visits, telephone calls, and television, id. ¶¶ 71, 78, 124,
151, 156, 175, 181, 201, 209, 242–43; and (7) curtailment of
communication with counsel, id. ¶¶ 79, 124, 155, 210, 244.
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Plaintiffs allege that these conditions of confinement violated
their Fifth and Eighth Amendment rights. Id. ¶¶ 352–69.
Plaintiffs argue that their claims do not arise in a new Bivens
context because they are not meaningfully different from the
claim the Supreme Court permitted to proceed in Carlson.
Mem. of Law in Opp. to Defs.’ Mot. to Dismiss (“Pls.’
Mem. of Law”) 6, Dkt. 69. The holding in Abbasi, though,
undermines plaintiffs’ contention. As in this case, plaintiffs
in Abbasi complained of harsh conditions of confinement.
Some of the complaints made in Abbasi resemble those made
by plaintiffs here, including allegations that detainees were
held in their cells for 23 hours each day, denied access
to basic hygiene products in their cells, and barred from
communicating with the outside world. 137 S.Ct. at 1853.
The Abbasi plaintiffs sought to hold the facility's warden
responsible for allowing these harsh conditions to occur,
as plaintiffs do here. Id. at 1863. However, the Court held
that such claims present a new Bivens context because they
“bear little resemblance” to the three Bivens claims that were
previously approved by the Court: “a claim against FBI agents
for handcuffing a man in his own home without a warrant; a
claim against a Congressman for firing his female secretary;
and a claim against prison officials for failure to treat an
inmate's asthma.” Id. at 1860.
Plaintiffs in Abbasi also alleged that the warden violated
their Fifth Amendment rights by allowing prison guards to
abuse them. Id. at 1853. While the Supreme Court in Abbasi
recognized that there were “significant parallels” to Carlson
in that both cases involved claims of prisoner mistreatment,
it ultimately concluded that the Abbasi plaintiffs’ prisoner
mistreatment claims arose in a new context. Id. at 1864.
Stressing that “even a modest extension is still an extension,”
the Court noted that the claims in Carlson were predicated on
the Eighth Amendment while those in the case before it were
brought by pre-trial detainees under the Fifth Amendment.
Id. The Court further noted that the legal standard applicable
to the failure to provide medical care alleged in Carlson
was well-established, while in contrast “[t]he standard for a
claim alleging that a warden allowed guards to abuse pre-trial
detainees is less clear under the Court's precedents.” Id. at
1864–65.
*5 As noted above, plaintiffs in this case bring conditions
of confinement claims under both the Fifth and Eighth
Amendments. To the extent plaintiffs’ claims invoke the Fifth
Amendment and relate to conditions of confinement other
than inadequate medical care, the distinction from Carlson
noted in Abbasi applies here as well. See White v. Hess,
2020 WL 1536379, at *7 (E.D.N.Y. Mar. 31, 2020) (holding
that non-medical conditions of confinement claims present a
new Bivens context); Fernandini v. United States, 2019 WL
2493758, at *10 (S.D.N.Y. Feb. 14, 2019) (holding that non-
medical “inhumane” prison conditions present a new Bivens
context), report and recommendation adopted in relevant
part, 2019 WL 1033797, at *6 (S.D.N.Y. Mar. 5, 2019).
Plaintiffs’ Eighth Amendment claims, particularly those
alleging a denial of medical care, arguably raise a closer
question because they are brought pursuant to the same
constitutional provision and involve the same type of harsh
condition as the claims in Carlson. Nevertheless, these claims
too arise in a new Bivens context.
For one thing, the legal standards applicable to plaintiffs’
claims in this case, like those applicable to the claims asserted
in Abbasi, are less clear than those that governed the claims
in Carlson. Plaintiff in Carlson was the mother of a deceased
prisoner, suing as administratrix of his estate. 446 U.S. at 16.
Plaintiff alleged that prison officials, though “fully apprised
of the gross inadequacy of medical facilities and staff” at
the federal detention center and of the seriousness of her
son's “chronic asthmatic condition,” confined him in that
facility “against the advice of doctors” and failed to provide
“competent medical attention for some eight hours after he
had an asthmatic attack, administered contra-indicated drugs
which made his attack more severe, attempted to use a
respirator known to be inoperative ..., and delayed for too
long a time his transfer to an outside hospital.” Id. at 16
n.1. The claims before the Court here, in contrast, involve
conditions plaintiffs endured over the course of one week in
the wake of an emergency partial power outage and “bear
little resemblance” to the chronic failure to provide adequate
medical care alleged in Carlson, which ultimately resulted
in the inmate's death. 1 While the Supreme Court “has long
made clear the standard for claims alleging failure to provide
medical treatment to a prisoner,” Abbasi, 137 S.Ct. at 1864,
the degree to which officials must maintain the infrastructure
of detention facilities, or to which they may be held to account
for failing to provide a range of services during a time-limited
emergency, is less clearly established.
*6 Moreover, any contention that claims do not arise
in a new context simply because they invoke the same
Amendment as a previously recognized Bivens claim was
squarely rejected in Hernandez v. Mesa, 140 S.Ct. 735 (2020).
In that case, the Court stated that “[a] claim may arise in a
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new context even if it is based on the same constitutional
provision as a claim in a case in which a damages remedy
was previously recognized,” and that to argue otherwise is
to demonstrate “a basic misunderstanding of what our cases
mean by a new context.” 140 S.Ct. at 743.
Finally, a common-sense look at the facts at issue in the
two cases makes it clear that plaintiffs’ claims here arise
in a significantly different context than those in Carlson.
Carlson involved allegations concerning the ongoing “gross
inadequacy” of the medical facilities at a prison and extreme
deviations from the standard of care for a common medical
condition. This case, in contrast, involves questions about an
alleged failure to maintain the electrical system in a detention
facility and to respond properly when that system failed in
mid-winter, resulting in a loss of power during a period
with frigid temperatures. While the standard of deliberate
indifference may govern liability in both circumstances, the
different contexts involved will require the Courts to make
distinct inquires. In particular, the exigencies of the power
outage likely required prison officials to prioritize certain
needs of the detainees in a way that would not have been
required in Carlson; this difference will alter the deliberate
indifference analysis.
For all these reasons, and bearing in mind the Supreme Court's
admonition that even a modest extension is still an extension,
I conclude that plaintiffs’ claims in this action arise in a new
Bivens context. 2
D. There Are Special Factors Counselling Hesitation
Having concluded that this case arises in a “new Bivens
context,” I now consider whether “there are ‘special factors
counselling hesitation in the absence of affirmative action by
Congress.’ ” Abbasi, 137 S.Ct. at 1857 (quoting Carlson, 446
U.S. at 18). This threshold is a “remarkably low” one. Arar v.
Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009).
In Abbasi, the Court identified some criteria for considering
whether hesitation is warranted. First, it noted that “the
decision to recognize a damages remedy requires an
assessment of its impact on governmental operations
systemwide,” which entails examining the “burdens on
Government employees who are sued personally, as well as
the projected costs and consequences to the Government itself
when ... the legal system [is] used to bring about the proper
formulation and implementation of public policies.” Abbasi,
137 S.Ct. at 1858. Second, some cases will arise “in a context
in which Congress has designed its regulatory authority in a
guarded way, making it less likely that Congress would want
the Judiciary to interfere.” Id. It may also be that “feature[s]
of [the] case—difficult to predict in advance—cause[ ] a
court to pause before acting without express congressional
authorization.” Id. The Court concluded this aspect of its
discussion by noting that, “if there are sound reasons to
think Congress might doubt the efficacy or necessity of a
damages remedy as part of the system for enforcing the law
and correcting a wrong, the courts must refrain from creating
the remedy[;]” to do otherwise would fail “to respect the role
of Congress in determining the nature and extent of federal-
court jurisdiction under Article III.” Id.
1. Separation-of-Powers Concerns are
a Special Factor Counselling Hesitation
*7 Defendants argue that “[e]xpanding Bivens to cover
plaintiffs’ conditions claim ... would imply a remedy in
damages based on judicial second-guessing of judgments by
prison officials.” Defs.’ Mem. of Law at 20. As defendants
correctly note, see Defs.’ Reply at 12, Congress has delegated
the management of the federal prison system to the U.S.
Attorney General and the Bureau of Prisons (“BOP”), both
of which are within the executive branch of the federal
government. 18 U.S.C. §§ 4001(b)(1) (“The control and
management of Federal penal and correctional institutions,
except military or naval institutions, shall be vested in the
Attorney General ...”); 4042(a)(1) (“The [BOP], under the
direction of the Attorney General, shall ... have charge
of the management and regulation of all Federal penal
and correctional institutions[.]”). Plaintiffs’ claims regarding
unconstitutional conditions of confinement, particularly to
the extent they involve the allocation of scarce resources to
the maintenance of infrastructure of the MDC as opposed to
other pressing needs, implicate the administration of prisons,
which, in turn, involves “separation of powers concerns [that]
counsel a policy of judicial restraint.” Turner v. Safley, 482
U.S. 78, 85 (1987).
2. Congress's Silence is Ambiguous
Defendants also argue that, in the years since the enactment
of the Prison Litigation Reform Act (“PLRA”) in 1996,
“Congress has never provided a damages remedy to federal
prisoners complaining of constitutional violations,” thus
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indicating Congress's reluctance to extend Bivens to new
contexts. Defs.’ Mem. of Law at 18–19 (citing Abdo v.
Balsick, 2019 WL 6726230, at *7 (D. Colo. Dec. 11, 2019)).
In opposition, plaintiffs note that the Court in Abbasi did not
affirmatively conclude that Congress's silence suggested its
reluctance to expand Bivens; rather, the Court merely stated
“[i]t could be argued that this suggests Congress chose not
to extend the Carlson damages remedy to cases involving
other types of prisoner mistreatment.” Abbasi, 137 S. Ct.
at 1865 (emphasis added); see Pls.’ Mem. of Law at 18.
Plaintiffs also assert that “Congress presumed the existence
of a Bivens remedy for prison conditions claims” and, by
its plain language, “intended only to reduce frivolous suits
by adding an administrative exhaustion requirement.” Pls.’
Mem. of Law at 17 (emphasis omitted). Indeed, plaintiffs
argue, “[w]hen the PLRA was debated and passed, not only
had the Supreme Court already recognized a constitutional
remedy for prisoner mistreatment claims in Carlson, but other
circuit courts had routinely done so as well.” Id. at 17–18
(listing cases in which Bivens was recognized as a vehicle for
asserting prisoner and detainee abuse claims).
Having considered the parties’ arguments, I conclude that
the evidence of congressional intent here is too ambiguous
to provide meaningful support for either side's position. See
Wilkie v. Robbins, 551 U.S. 537, 554 (2007) (“It would be
hard to infer that Congress expected the Judiciary to stay
its Bivens hand, but equally hard to extract any clear lesson
that Bivens ought to spawn a new claim.”); Turkmen v.
Ashcroft, 2018 WL 4026734, at *8 (E.D.N.Y. Aug. 13, 2018)
(report and recommendation pending). Inferring intention
from inaction necessarily involves speculation, and the degree
of speculation involved increases greatly when an inference
about intent is based upon the inaction of a legislative body
with hundreds of members, each of whom may have their own
reasons for not acting. Therefore, I decline to infer what views
Congress may have with respect to extending Bivens from its
failure to pass a law that either provides or precludes a Bivens-
type remedy for violations of constitutional rights.
E. An Alternative Remedy Is Available
As noted above, the availability of alternative remedies “alone
may limit the power of the Judiciary to infer a new Bivens
cause of action.” Abbasi, 137 S.Ct. at 1858. Here, plaintiffs
not only have an alternative remedy available, they have
invoked it.
1. The FTCA Provides a Sufficient Alternative Remedy
Defendants argue that “plaintiffs had an alternative existing
process because they could have brought—and in fact, in this
action, have brought—tort claims under the FTCA.” Defs.’
Mem. of Law 14–15. Indeed, the Amended Complaint in this
action includes a claim for negligence under the FTCA based
upon the same alleged conditions of confinement asserted in
support of plaintiffs’ Bivens claims. Am. Compl. ¶¶ 370–80.
*8 Plaintiffs argue that the Supreme Court's holding in
Carlson precludes any argument that a plaintiff's ability to
sue under the FTCA impedes that plaintiff's right to bring
a Bivens claim. Pls.’ Mem. of Law at 12. The Supreme
Court in Carlson deemed it “crystal clear” that “Congress
views FTCA and Bivens as parallel, complementary causes
of action,” Carlson, 446 U.S. at 20. In subsequent decisions,
moreover, the Supreme Court has reiterated that “an FTCA
claim is simply not a substitute for a Bivens action.” Bueno
Diaz v. Mercurio, 442 F. Supp. 3d 701, 710 (S.D.N.Y. 2020)
(internal quotation marks and citations omitted); see Wilkie,
551 U.S. at 553 (noting that the “FTCA and Bivens remedies
were ‘parallel, complementary causes of action’ and that the
availability of the former did not preempt the latter” (quoting
Carlson, 446 U.S. at 20)); Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 68 (2001) (quoting Carlson, 446 U.S. at 20)); Bush,
462 U.S. at 378 (noting that “[n]o statute expressly declared
the FTCA remedy to be a substitute for a Bivens action”).
The reasoning and result in Abbasi, though, call into serious
question the continued viability of the test articulated in
Carlson for when the availability of an alternative remedy
precludes a Bivens claim. In Carlson, the Supreme Court
stated that a Bivens claim is precluded by an alternative
remedy only “when defendants show that Congress has
provided an alternative remedy which it explicitly declared
to be a substitute for recovery directly under the Constitution
and viewed as equally effective.” Carlson, 446 U.S. at 18–
19 (emphasis in original). In contrast, the Court in Abbasi
more broadly concluded that “if Congress has created any
alternative, existing process for protecting the injured party's
interest[,] that itself may amount to a convincing reason for
the Judicial Branch to refrain from providing a new and
freestanding remedy in damages.” Abbasi, 137 S. Ct. at 1858
(internal quotation marks, alterations, and citation omitted)
(emphasis added). In emphasizing that “expanding the Bivens
remedy is now considered a disfavored judicial activity,” the
Court also observed that its conclusion in Carlson “might
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have been different if [it] were decided today.” Id. at 1856,
1857 (internal quotation marks and citation omitted).
The Second Circuit has not yet decided whether, in the wake
of Abbasi, the availability of an FTCA action precludes a
Bivens remedy. See Tr. of Oral Arg. at 6:4-5, Dkt. 91. The
Fifth Circuit, though, has invoked the availability of an FTCA
claim as a basis for dismissing a Bivens action. Oliva v. Nivar,
973 F.3d 438, 444 (5th Cir. 2020). Several decisions rendered
by district courts within the Second Circuit have similarly
concluded that Carlson’s analysis of adequate alternative
remedies cannot survive Abbasi and dismissed Bivens claims
because the FTCA provides an adequate alternative remedy.
See, e.g., Sosa v. Bustos, 2020 WL 1940550, at *4 (S.D.N.Y.
Apr. 22, 2020); Oliveras v. Basile, 440 F. Supp. 3d 365,
372–74 (S.D.N.Y. 2020); Morrison v. United States, 2019
WL 5295119, at *3 (S.D.N.Y. Oct. 18, 2019); Abdoulaye v.
Cimaglia, 2018 WL 1890488, at *7 (S.D.N.Y. Mar. 30, 2018);
Morgan v. Shivers, 2018 WL 618451, at *5–*6 (S.D.N.Y.
Jan. 29, 2018); see also Style v. Mackey, 2020 WL 3055319,
at *4 (E.D.N.Y. June 8, 2020); Rivera v. Samilo, 370 F.
Supp. 3d 362, 369 (E.D.N.Y. 2019). In contrast, some courts
have continued to rely on Carlson and concluded that “[t]he
FTCA standing on its own” does not provide a sufficient
alternative remedy and thus “does not give the Court reason
to hesitate in extending Bivens.” Powell v. United States, 2020
WL 5126392, at *10 (S.D.N.Y. Aug. 31, 2020) (noting that
“[t]he Supreme Court has not been bashful in signaling its
skepticism of the Bivens remedy—if the Court intended to
overrule Carlson, I am quite sure it would simply do so”); see
Bueno Diaz, 442 F. Supp. 3d at 711.
*9 Plaintiffs argue further that “[t]he Westfall Act's
amendments to the FTCA contemplate the continued viability
of suits against individual federal officers for constitutional
violations.” Pls.’ Mem. of Law at 13. The Westfall Act of
1988 provides that a claim against the United States under the
FTCA is the exclusive civil remedy for negligent or wrongful
acts or omissions by employees of the federal government.
28 U.S.C. § 2679(b)(1). The Act also provides, however,
that this limitation does not apply to “a civil action against
an employee of the Government which is brought for a
violation of the Constitution of the United States.” 28 U.S.C. §
2679(b)(2)(A). Arguably, by enacting legislation specifically
discussing civil actions against government employees for
violations of constitutional rights—but declining to eliminate
or narrow them—Congress implicitly approved of such
actions. See Abbasi, 137 S. Ct. at 1880–81 (Breyer, J.,
dissenting) (arguing that the exception for lawsuits claiming
constitutional violations in the Westfall Act makes it clear that
Congress views the FTCA and Bivens as providing “parallel,
complementary causes of action” (quoting Carlson, 446 U.S.
at 20)).
The problem with plaintiffs’ Westfall Act argument is that
it failed to persuade the Abbasi majority. In his dissent,
Justice Breyer invoked passage of the Westfall Act as an
indication of Congress's “accept[ance of] Bivens actions
as part of the law.” Id. at 1880 (Breyer, J., dissenting).
However, the majority, while making explicit reference to the
Westfall Act, held, largely on separation-of-powers grounds,
that extending Bivens to new contexts is now a “disfavored”
judicial activity.” Id. at 1856–57 (majority opinion) (internal
quotation marks and citation omitted). Clearly, then, the
majority in Abbasi—though plainly aware of Justice Breyer's
arguments to the contrary—rejected the notion that, by
passing the Westfall Act, Congress suggested its support for
Bivens actions.
Finally, plaintiffs point out that the Supreme Court recently
stated in Hernandez v. Mesa, 140 S. Ct. 735 (2020) that “the
Westfall Act ‘left Bivens where it found it,’ leaving Carlson
untouched as binding precedent.” Pls.’ Mem. of Law at 14
(quoting Hernandez, 140 S. Ct. at 748 n.9). The majority in
Hernandez, though, did not explicitly state that the FTCA
fails as a general matter to provide an alternative remedy to a
Bivens claim. Rather, when considered in context, it is clear
that the majority was merely observing, in that case involving
a U.S. Border Patrol Agent's cross-border shooting of a 15-
year-old Mexican child, that “the FTCA bars ‘[a]ny claim
arising in a foreign country.’ ” Hernandez, 140 S. Ct. at 748
(quoting 28 U.S.C. § 2680(k)).
Having considered the authorities cited above and the
arguments presented by the parties, I agree with those district
courts that have held that, post-Abbasi, “the FTCA as a
potential remedy counsels hesitation in extending a Bivens
remedy,” Abdoulaye, 2018 WL 1890488, at *7, and supports
dismissal of plaintiffs’ Bivens claims.
2. Other Alternative Remedies
Defendants argue that plaintiffs could have sought relief
through alternative means in addition to an FTCA claim,
including a habeas petition, a motion for injunctive relief, or
an administrative claim pursuant to the PLRA. Defs.’ Mem.
of Law 16–17. Defendants have failed to explain, however,
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how plaintiffs could have invoked any of these means of
seeking relief while confined to their cells during the power
outage, or what relief they might have sought or obtained
if they filed a habeas petition, motion for injunctive relief,
or administrative claim after power was restored and the
harsh conditions of confinement they complain about here
had abated. Defendants further contend that plaintiffs could
have pursued New York state law claims, but relief under
state law is unavailable where, as here, it is alleged that
defendants acted within the scope of their employment. See
Rivera, 370 F. Supp. 3d at 370 (“Plaintiff had some avenues
for redress under New York state law to the extent he claimed
that [defendant's] actions placed him outside the scope of
his federal employment.”). Because none of these alternative
remedies were, as a practical matter, available to plaintiffs in
any meaningful way, I do not find them to be an additional
basis for hesitation.
*10 Nevertheless, because I find that separation-of-power
concerns are a special factor counselling hesitation and the
FTCA provides a sufficient alternative remedy, I respectfully
recommend that defendants’ motion to dismiss be granted
with respect to the Bivens claims against Quay and Maffeo. 3
II. Plaintiffs’ FTCA Claim
A. Legal Standard Applicable to Rule 12(b)(1)
Defendant United States of America moves to dismiss the
FTCA claim asserted by plaintiffs Scott and Cerda for lack
of subject-matter jurisdiction pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure. See Defs.’ Mem. of
Law at 4–5. “A case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000);
see Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d
635, 638 (2d Cir. 2005)). “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;
see Tandon v. Captain's Cove Marina of Bridgeport, Inc.,
752 F.3d 239, 243 (2d Cir. 2014). In evaluating whether a
plaintiff has met that burden, “ ‘[t]he court must take all
facts alleged in the complaint as true and draw all reasonable
inferences in favor of plaintiff,’ but ‘jurisdiction must be
shown affirmatively, and that showing is not made by drawing
from the pleadings inferences favorable to the party asserting
it.’ ” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170
(2d Cir. 2008) (citations omitted), aff'd, 561 U.S. 247 (2010).
Moreover, a court evaluating a Rule 12(b)(1) motion may
consider affidavits and other materials outside the pleadings.
See Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 223
(2d Cir. 2017); Samele v. Zucker, 324 F. Supp. 3d 313, 321
(E.D.N.Y. 2018).
B. Plaintiffs Scott and Cerda Exhausted
their Administrative Remedies
The FTCA waives sovereign immunity for injuries arising
from the tortious conduct of federal officers or agents acting
within the scope of their office or employment. See 28 U.S.C.
§ 1346(b)(1). Plaintiffs seeking to bring a claim under the
FTCA must first exhaust their administrative remedies by
presenting their claim to the appropriate federal agency and
receiving a final denial of the claim in writing. 28 U.S.C.
§ 2675(a). A failure of the federal agency to dispose of
a claim within six months may, at the claimant's option,
be deemed a final denial. Id. Notably, “[f]ailure to exhaust
the agency's administrative remedies within the statute of
limitations will render the claim forever barred.” Roberson
v. Greater Hudson Valley Family Health Ctr., Inc., 2018 WL
2976024, at *2 (S.D.N.Y. June 12, 2018) (internal quotation
marks and citation omitted). The exhaustion requirement is
“jurisdictional and cannot be waived.” Celestine v. Mount
Vernon Neighborhood Health Cir., 403 F.3d 76, 82 (2d Cir.
2005).
*11 In addition, FTCA claims are subject to two limitations
periods: first, a tort claim must be presented to the appropriate
federal agency within two years of its accrual, and second,
the subsequent federal action must be commenced within six
months after the agency mails its final denial. 28 U.S.C. §
2401(b). If either deadline is not met, the claim is “forever
barred.” Id. Like a failure to exhaust, failure to comply with
the FTCA's limitations periods constitutes a jurisdictional
defect that deprives the court of subject matter jurisdiction.
Abdelmoneim v. Dep't of Army, 2014 WL 1277905, at *2
(E.D.N.Y. Mar. 27, 2014).
Here, plaintiffs Scott and Cerda filed their administrative
tort claims with the BOP on April 30, 2019, two months
after the action was commenced against Quay. Am. Compl.
¶¶ 95, 133. The BOP issued a final denial on October 31,
2019. Id. Thereafter, plaintiffs filed an Amended Complaint
on November 15, 2019, adding—for the first time—an
FTCA claim by Scott and Cerda against the United States. 4
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Defendants argue that “the FTCA requires jurisdiction to exist
at the time of the filing of the original Complaint, depriving
the Court of jurisdiction” over the FTCA claim asserted by
Scott and Cerda. Defs.’ Mem. of Law at 26. The question
then becomes whether the Amended Complaint may serve as
the pleading that instituted Scott's and Cerda's FTCA claim,
or whether they filed the original Complaint prematurely
because their administrative tort claims had not yet been filed
or denied.
An action brought under the FTCA “shall not be instituted”
against the United States until the claim has been finally
denied. 28 U.S.C. § 2675(a). The Supreme Court has
determined that, in this context, “the normal interpretation of
the word ‘institute’ is synonymous with the words ‘begin’
and ‘commence.’ ” McNeil v. U.S., 508 U.S. 106, 112 (1993).
In other words, a plaintiff must fully exhaust administrative
remedies before invoking the judicial process. See id. Indeed,
courts have noted that “[a]llowing claimants generally
to bring suit under the FTCA before exhausting their
administrative remedies and to cure the jurisdictional defect
by filing an amended complaint would render the exhaustion
requirement meaningless and impose an unnecessary burden
on the judicial system.” Duplan v. Harper, 188 F.3d 1195,
1199 (10th Cir. 1999) (holding that the district court had
jurisdiction over an FTCA claim because the government
agreed that “the amended complaint effectively constituted a
new action and agreed to administrative closure of the first
action pending exhaustion”); see Hoffenberg v. Provost, 154
F. App'x 307, 310 (3d Cir. 2005) (holding that the FTCA
claim was properly dismissed as unexhausted because it was
still pending before the BOP when plaintiff filed his original
complaint alleging an FTCA claim; therefore, the date on
which the amended complaint was filed, which was after the
conclusion of the BOP proceedings, could not serve as the
date the federal suit was instituted).
*12 In this case, unlike in Hoffenberg, the original
Complaint did not include any claims under the FTCA or
against the United States or the BOP as a defendant; rather,
the original Complaint alleged only Bivens claims against
Quay. In a case involving circumstances more like those
at issue here, the Eighth Circuit held that an FTCA claim
that was unexhausted when the original complaint was filed,
but exhausted at the time of the amended complaint, could
go forward. See Mackovich v. U.S., 630 F.3d 1134, 1135–
36 (8th Cir. 2011). In Mackovich, the claims asserted in the
original and amended complaints were different: the plaintiff
initially sued under the FTCA for medical malpractice, then
abandoned that claim in his amended complaint and sued
under the FTCA claiming that he slipped and fell in a poorly
maintained dining area. See id. at 1134. The Court construed
plaintiff's amended complaint as “an entirely new action.”
Id. at 1136. Similar results were reached in cases where
plaintiffs amended existing complaints to add a new FTCA
claim. See Corley v. United States Dep't of Justice, 2016 WL
11395009, at *5 (E.D.N.Y. Sept. 6, 2016) (denying motion to
dismiss as unexhausted because “[p]laintiff made no claims
or allegations in his original complaint about his treatment
at the MCC. Plaintiff filed his amended complaint alleging
FTCA claims about his treatment at the MCC only after his
related administrative claims were finally denied”), report
and recommendation adopted sub nom. Corley v. United
States, 2016 WL 5394705 (E.D.N.Y. Sept. 27, 2016); Malouf
v. Turner, 814 F. Supp. 2d 454, 461 (D.N.J. 2011) (“As
Plaintiff's action did not raise a claim under the FTCA for tort
damages related to his January 2009 slip and fall until he filed
his Amended Complaint, which occurred after exhaustion of
his administrative tort claim by the BOP, the Court finds
no jurisdictional restriction in the plain language of the
statute.”); Grancio v. De Vecchio, 572 F. Supp. 2d 299, 310–11
(E.D.N.Y. 2008); Vitrano v. United States, 2008 WL 1752221,
at *4 (S.D.N.Y. Apr. 16, 2008) (“When and if [plaintiff] is
able to plead satisfaction of jurisdictional prerequisites, he
will be entitled to assert [FTCA] claims either by amending
his complaint here or by filing a new action.”). Thus, because
plaintiffs Scott and Cerda asserted their FTCA claim against
the United States for the first time in the Amended Complaint,
the date of the Amended Complaint is the date the federal
suit was instituted for jurisdictional purposes. By that date, of
course, the claim had properly been exhausted.
Although the government relies on McKiver v. Fed. Bureau
of Prisons of New York, 2019 WL 1369460 (S.D.N.Y.
Mar. 26, 2019), the holding in that case is based on facts
that are readily distinguishable from those presented here.
In McKiver, the district court held that the FTCA claims
against individual federal employees should be dismissed
as unexhausted because plaintiff filed his administrative tort
claims with the court, not with the appropriate federal agency,
and did so only after he instituted the action. McKiver,
2019 WL 1369460, at *4. The court noted that “[t]he only
potential argument to be made to the contrary” is that the
action was not instituted until the Attorney General certified
that the individual federal employees “were acting within the
scope of their official duties,” at which the time a tort claim
against the individuals could be deemed a claim against the
United States. Id. (citing Grancio, 572 F. Supp. 2d at 311).
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However, the court held that the case was distinguishable
from Grancio because plaintiff's “initial pleadings included
his FTCA claim,” not just tort claims more generally, and
explicitly named the BOP as a defendant. Id. Moreover, the
court had already “effectively deemed the suit to be against
the United States” in an earlier decision. Id.
For these reasons, I conclude that plaintiffs Scott and Cerda
have exhausted their administrative remedies and properly
asserted their FTCA claim only after having received a written
denial of their administrative tort claims.
C. The Discretionary Function Exception
Defendants alternatively challenge the Court's jurisdiction by
invoking the FTCA's discretionary function exception to the
federal government's limited waiver of sovereign immunity.
The exception bars liability for “[a]ny claim ... based upon the
exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the
discretion involved be abused.” 28 U.S.C. § 2680(a). A claim
that falls within this exception must be dismissed for lack of
subject matter jurisdiction. See Huntress v. United States, 810
F. App'x 74, 76 (2d Cir. 2020) (petition for a writ of certiorari
filed); Fazi v. United States, 935 F.2d 535, 539 (2d Cir. 1991).
Courts decide whether the discretionary function exemption
applies according to the so-called Berkovitz-Gaubert test, a
reference to Berkowitz v. United States, 486 U.S. 531 (1988)
and United States v. Gaubert, 499 U.S. 315 (1991). Under
that test, the exception applies only when the following two
conditions are met: “(1) the acts alleged to be negligent
must be discretionary, in that they involve an element of
judgment or choice and are not compelled by statute or
regulation, and (2) the judgment or choice in question must
be grounded in considerations of public policy or susceptible
to policy analysis.” USAA Cas. Ins. Co. v. Permanent Mission
of Republic of Namibia, 681 F.3d 103, 111–12 (2d Cir. 2012)
(quoting Coulthurst v. United States, 214 F.3d 106, 109 (2d
Cir. 2000)).
*13 “Plaintiffs bear the initial burden to state a claim
that is not barred by the [discretionary function exception].”
Molchatsky v. United States, 713 F.3d 159, 162 (2d Cir. 2013).
However, “[n]either the Second Circuit nor the United States
Supreme Court has explicitly answered whether the United
States or a plaintiff bears the ultimate burden of proving
the applicability of the discretionary function exception.”
Fernandini, 2019 WL 1033797, at *3 n.1 (quoting Ruiz ex rel.
E.R. v. United States, 2014 WL 4662241, at *4 n.5 (E.D.N.Y.
Sept. 18, 2014)).
Where “a regulation, rule, or statute ‘allows the employee
discretion,’ a ‘strong presumption’ arises that the employee's
acts ‘are grounded in policy when exercising that discretion.’
” Enigwe v. Zenk, 2007 WL 2713849, at *9 (E.D.N.Y. Sept.
14, 2007) (quoting Gaubert, 499 U.S. at 324). Pursuant
to statute, the BOP has “charge of the management and
regulation of all Federal penal and correctional institutions,”
18 U.S.C. § 4042(a)(1), and must “provide suitable quarters
and provide for the safekeeping, care, and subsistence of
all persons charged with or convicted of offenses against
the United States,” id. § 4042(a)(2). The statute “does not
direct the BOP how to fulfill [these] duties, nor does the
statute mandate particular conduct by the BOP”; rather,
“[t]he statute gives the BOP officials great discretion to
administer their duties as they see fit.” Ojo v. United States,
2019 WL 3852391, at *7 (E.D.N.Y. Aug. 15, 2019), report
and recommendation adopted, 2019 WL 4602823 (E.D.N.Y.
Sept. 23, 2019); see also Fernandini, 2019 WL 1033797,
at *4 (concluding that “decisions regarding the best way to
comply with this broad statutory mandate are discretionary
in nature”); Enigwe, 2007 WL 2713849, at *8 (noting that
“in general decisions regarding the best way to safeguard
prisoners are discretionary in nature”); Scrima v. Hasty, 1998
WL 661478, at *3 (S.D.N.Y. Sept. 24, 1998) (“The absence
of specific guidelines of appropriate conduct by BOP officials
in administering” their duties to provide suitable quarters and
provide for the safekeeping, care, and subsistence of inmates
“leaves judgment or choice to BOP officials”). It thus appears
that the first prong of the Berkovitz-Gaubert test is satisfied.
However, “[t]he inquiry as to whether the discretionary
function exception is applicable does not end simply with
a finding that a discretionary function is involved.” Scrima,
1998 WL 661478, at *3. Rather, to fall within the exception,
the challenged conduct must be “based on ‘considerations
of public policy,’ since the purpose of the exception
is to ‘prevent judicial second-guessing of legislative and
administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.”
Enigwe, 2007 WL 2713849, at *8 (quoting Berkovitz, 486
U.S. at 537); see also Hartman v. Holder, 2009 WL 792185,
at *6 (E.D.N.Y. Mar. 23, 2009) (noting that the presumption
that arises when a statute or regulation allows a government
agent to exercise discretion “is not irrefutable”). Thus, even
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conduct within the discretion of a government official may
not fall within the discretionary function exception.
In this regard, the Second Circuit has held, under the so-
called “negligent guard theory,” that an official's “lazy or
careless failure to perform his or her discretionary duties”
are negligent acts that “neither involve an element of
judgment or choice within the meaning of Gaubert nor are
grounded in considerations of governmental policy.” Chen
v. United States, 2011 WL 2039433, at *6 (E.D.N.Y. May
24, 2011), aff'd, 494 F. App'x 108 (2d Cir. 2012) (quoting
Coulthurst, 214 F.3d at 109, 110); see also Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 475–76 (2d Cir.
2006); Young v. United States, 2014 WL 1153911, at *15
(E.D.N.Y. Mar. 20, 2014) (stating that a “[p]laintiff can
overcome the FTCA's discretionary function exception if he
can demonstrate that the officers’ actions in [his] case were
the result of laziness, carelessness, or inattentiveness, rather
than grounded in policy considerations”); Hartman, 2009 WL
792185, at *7–*8. “Where the negligent guard theory applies,
a plaintiff's claims are not barred by the discretionary function
exception.” Chen, 2011 WL 2039433, at *6.
*14 When the facts alleged in a complaint suggest
“numerous potential ways” in which a government official's
conduct may have resulted in the injuries complained of,
and only some of those ways fall within the discretionary
function exception while others support a finding of laziness,
carelessness or inattentiveness, a court “err[s] in assuming
that the negligence alleged in the complaint involved only
discretionary functions.” Coulthurst, 214 F.3d at 109, 110.
A court need not determine “the merits of the negligent
guard theory in [a particular] case, or even ... its capacity to
withstand summary judgment,” to allow a claim to proceed
at the pleading stage. Triestman, 470 F.3d at 476; see also
Aurecchione, 426 F.3d at 638.
The facts alleged in plaintiffs’ Amended Complaint, if
believed, could support a finding that the injuries plaintiffs
claim to have suffered were caused by the laziness,
carelessness, or inattentiveness of Warden Quay and Facilities
Manager Maffeo. With respect to MDC's infrastructure, for
example, plaintiffs allege that Warden Quay was aware of
warning signs about the electricity and heat at the MDC in
the weeks leading up to the power outage, and point out in
particular that the MDC sustained several power outages in
the three months leading up to the January 27, 2019 outage.
Am. Compl. ¶¶ 26–29. According to plaintiffs, Con Edison
has attributed the January 27, 2019 outage to a failure to
address pre-existing infrastructure problems at the MDC. Id.
¶ 39.
Plaintiffs similarly allege that the MDC had been struggling
with heating issues for two weeks prior to January 27, 2019.
Id. ¶¶ 32, 34–35. The inadequate heat during the outage was
made worse, plaintiffs allege, by the failure of MDC staff to
reset heating controls properly after coils were repaired on
January 21, 201. Id. ¶ 49.
The Amended Complaint includes similarly specific
allegations with respect to the failure of prison officials to
address the harsh conditions that ensued after power was
lost. For example, despite frigid temperatures, prison officials
did not provide detainees with additional blankets or warm
clothing. Id. ¶¶ 66, 143, 171, 195, 235, 264, 267. Detainees
were locked in their cells and no provisions were made for
them to be able to make telephone calls or visit the law
library. Id. ¶¶ 71, 124, 151, 175, 242, 273. Nor were any
arrangements made to provide medical care or prescription
drugs, even to detainees with serious conditions. Id. ¶¶ 82,
224, 245–51, 279–80. Officials apparently took no steps to
provide flashlights, clean water, hot food, or clean bedding
and laundry. Id. ¶¶ 77, 111, 118, 285–88, 291, 310(e)(iv).
According to plaintiffs, Warden Quay did not have a plan
in place to address an emergency like the January 27, 2019
power outage before it occurred and took no steps to develop
one once power was lost. Id. ¶ 310(a). The Warden even failed
to transfer detainees who required powered equipment for
respiratory support until several days into the outage. Id. ¶
310(c). And when the City of New York offered to provide
emergency blankets and generators, Warden Quay declined
the offer. Id. ¶ 312.
Defendants rely on Spotts v. United States, 613 F.3d 559 (5th
Cir. 2010) to support their contention that the discretionary
function exemption supports dismissal. Spotts, however, is
readily distinguishable from this case. First, the conditions
of confinement challenged in Spotts arose in the aftermath
of a natural disaster—a hurricane—that no amount of
maintenance could have avoided. Id. at 563. Moreover, the
primary contention made by the plaintiffs in Spotts was
that the warden declined to evacuate the entire prison in
preparation for a natural disaster and not, like here, that prison
officials failed to maintain the building properly even after
warnings that a loss of power was likely. Id. at 563–65.
Finally, there is no discussion in Spotts of the negligent guard
theory pressed by plaintiffs here. Id. at 572–73.
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*15 It is conceivable that the United States could establish
that MDC officials engaged in the conduct and made the
decisions challenged by plaintiffs based upon considerations
of public policy. Indeed, the individual defendants (named
only in the Bivens claims discussed above) have submitted
declarations that tend to support such a conclusion. Decls.
of Herman Quay & John Maffeo, Dkt. 65-1. But the well-
pleaded allegations of the Amended Complaint may also
support a finding that the power outage was the result of
careless inattention to the deteriorating infrastructure at the
MDC and that the harsh conditions that ensued when power
was lost were not properly addressed out of lack of concern
and laziness.
For all these reasons, I conclude that plaintiffs have
“presented facts that the Court concludes support[ ] a
finding that [Quay's and Maffeo's] decisions were careless
or inattentive and not rooted in policy considerations. At the
Rule 12(b)(1) stage, that is all that is required for plaintiff[s’]
cause of action to continue.” Hartman, 2009 WL 792185,
at *11. I therefore respectfully recommend that defendants’
motion to dismiss Scott's and Cerda's FTCA claim against the
United States be denied.
CONCLUSION
For the reasons stated above, I respectfully recommend that
the motion to dismiss be granted with respect to the Bivens
claims asserted against defendants Quay and Maffeo and
denied with respect to the FTCA claim brought by plaintiffs
Scott and Cerda against the United States.
Any objections to the recommendations made in this Report
must be made within three weeks 5 after filing of this
Report and Recommendation and, in any event, on or before
December 7, 2020. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(2). Failure to file timely objections may waive the
right to appeal the District Court's order. See Small v. Sec'y
of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)
(discussing waiver under the former ten-day limit).
All Citations
Not Reported in Fed. Supp., 2020 WL 8611292
Footnotes
1 The Amended Complaint alleges that plaintiffs experienced a variety of conditions with respect to their medical
care. Am. Compl. ¶¶ 86–92 (alleging that before and during the partial power outage, plaintiff Scott had
numbness in his hands, a skin fungus requiring topical treatments, and an abscess under his armpit for
which he was taking antibiotics and was not seen by a Nurse Practitioner until February 4, 2019 per Court
Order); 100, 128–29, 131 (alleging that plaintiff Cerda, who had major depression and anxiety and thought
about hurting himself, was not offered any mental health treatment during the partial power outage, and did
not report his condition to staff until February 1, 2019); 217–22 (alleging plaintiff Hardy's kidney medication
was not delivered to him during the partial power outage, thereby causing pain and swollen glands; he
also had “trouble breathing” and his requests for medical care were ignored); 245–51 (alleging that plaintiff
Williams, who suffers from hyperthyroidism and takes daily medication, ran out of this medication on February
1, 2019, began experiencing heart palpitations, dizziness, diarrhea, stomach cramps, headaches, anxiety,
and nightmares, and was not provided medical care despite his repeated requests during the partial power
outage).
2 Defendants also argue that the Supreme Court has never implied a Bivens remedy under the Fifth
Amendment for pre-trial detainees, like plaintiffs Scott and Cerda, or under the Eighth Amendment for
convicted—but not yet sentenced—prisoners, like plaintiff Williams. Defs.’ Mem. of Law at 8–9 (citing Bell v.
Wolfish, 441 U.S. 520, 527–28, 535 (1979); Lareau v. Manson, 651 F.2d 96, 102 (2d Cir. 1981)). Because I
conclude for other reasons that plaintiffs’ claims arise in a new context, I do not reach the question of whether
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the status of plaintiffs as pre-trial detainees or convicted but not yet sentenced defendants is by itself sufficient
to constitute a “new context.”
3 Defendants also argue that “plaintiffs have failed to plead any specific facts alleging that Facilities Manager
Maffeo personally violated their constitutional rights.” Defs.’ Mem. of Law at 21. Because I recommend
dismissal of plaintiffs’ Bivens claims on other grounds, I do not consider this alternative argument in support
of dismissal of plaintiffs’ Bivens claim against Maffeo.
4 In the original Complaint, plaintiffs Scott and Cerda asserted two Bivens claims against Warden Quay.
Compl., Dkt. 1. The Amended Complaint restates the original Bivens claims and asserts them on behalf of
original plaintiffs Scott and Cerda and newly added plaintiffs Ak, Patel, Hardy, and Williams, and asserts
them against original defendant Quay and newly added defendant Maffeo. The Amended Complaint also
adds a claim under the FTCA on behalf of plaintiffs Scott and Cerda. Although defendants argue that “the
Court lacks jurisdiction over the FTCA claims” brought by plaintiffs Ak, Patel, Hardy, and Williams because
“the Amended Complaint was filed before they exhausted their administrative remedies,” Defs.’ Mem. of Law
at 26, it is clear that these plaintiffs do not assert FTCA claims in the Amended Complaint.
5 The Court is giving the parties an additional week to file their objections in light of the Thanksgiving holiday
next week.
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Shaw v. United States Marshall, Not Reported in Fed. Supp. (2024)
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KeyCite Yellow Flag
Distinguished by Salaman v. Carney, D.Conn., August 22, 2025
2024 WL 4574146
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Mia SHAW, Plaintiff,
v.
UNITED STATES MARSHALL [sic], Defendant.
24-CV-5644 (HG) (LB)
|
Signed October 24, 2024
Attorneys and Law Firms
Mia Shaw, Staten Island, NY, Pro Se.
MEMORANDUM & ORDER
HECTOR GONZALEZ, United States District Judge:
*1 Plaintiff Mia Shaw brings this pro se action against the
United States Marshal alleging violations of her civil rights.
ECF No. 1 (Complaint). Plaintiff's application to proceed in
forma pauperis (“IFP”) is granted. ECF No. 2 (IFP Motion).
However, for the reasons stated below, Plaintiff's complaint
is dismissed, without prejudice, for lack of subject matter
jurisdiction.
BACKGROUND
Plaintiff alleges that on May 10, 2024, between approximately
4:30 A.M. and 5:00 A.M., “the U.S. Marshall's [sic] entered”
her home on Staten Island “by breaking the door” and
destroyed other property in search of a firearm. ECF No. 1
at 5. Plaintiff was not arrested and did not sustain physical
injuries. Plaintiff alleges that the United States Marshals did
not have a warrant, and “interrogat[ed]” and “threatened” her
minor children “in a separate room.” Id. at 5–6. Plaintiff seeks
unspecified money damages. ECF No. 1 at 6.
LEGAL STANDARD
A complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). 1 “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.
A pro se complaint “must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The Court's obligation “to
construe a pro se complaint liberally” continues to apply
“[e]ven after Twombly” established the plausibility standard
for assessing pleadings. Newsome v. Bogan, 795 F. App'x 72,
72 (2d Cir. 2020) (quoting Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009)). However, a district court shall review an in forma
pauperis action and dismiss it where it finds the action “(i)
is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). In addition, “[i]f the court determines at any
time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3).
DISCUSSION
Plaintiff attempts to bring this action pursuant to Bivens v.
Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971) (“Bivens”). ECF No. 1 at 4. However,
Plaintiff has failed to state a claim under Bivens. Under
Bivens, a plaintiff can sue a federal official or employee
in their individual capacity for an alleged constitutional
violation in certain specific circumstances. These limited
circumstances include a claim under the Fourth Amendment
against federal narcotics officers for a warrantless arrest and
search, see Bivens, 403 U.S. at 397, a claim under the Fifth
Amendment for sex discrimination against a congressman,
see Davis v. Passman, 442 U.S. 228 (1979), and a claim under
the Eighth Amendment against federal prison officials for
failure to provide adequate medical treatment, see Carlson
v. Green, 446 U.S. 14 (1980). Claims that do not fall within
these and other enumerated specific circumstances cannot
proceed under Bivens. See Ziglar v. Abbasi, 582 U.S. 120, 135
(2017) (explaining that “expanding the Bivens remedy is now
disfavored”).
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*2 Recently, the Second Circuit held that claims against
officers of the United States Marshals Service (“USMS”)
cannot proceed under Bivens as such claims would impose
liability against a new category of defendants. See Edwards
v. Gizzi, 107 F.4th 81 (2d Cir. July 12, 2024) (per curiam)
(affirming district court dismissal of plaintiff's excessive
force claim against deputy U.S. Marshals and court security
officers). Accordingly, to the extent Plaintiff is attempting to
sue individual USMS officers 2 her complaint cannot proceed
under Bivens.
If Plaintiff seeks to sue the USMS, a federal agency, that claim
also cannot proceed under Bivens, because under the doctrine
of sovereign immunity, the USMS is immune from suit. See
Robinson v. Overseas Military Sales Corp., 21 F.3d 502,
510 (2d Cir. 1994) (noting that sovereign immunity prevents
plaintiffs from bringing Bivens actions against the United
States, federal agencies, and individual federal defendants
in their official capacities); see also Bravo v. U.S. Marshals
Serv., 684 F. Supp. 3d 112, 124 (S.D.N.Y. July 26, 2023)
(holding that plaintiff's Bivens claims against the USMS had
to be dismissed because “[t]he Supreme Court has expressly
declined to extend Bivens liability to federal agencies or other
entities”) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 484–86
(1994) and O'Donoghue v. United States Soc. Sec. Admin.,
828 F. App'x 784, 787 (2d Cir. 2020)). As such, the USMS
cannot be sued under Bivens.
However, the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671–80, provides a waiver of sovereign
immunity for injuries arising from the tortious conduct of
federal officers acting within the scope of their employment.
28 U.S.C. §§ 2671 et seq. Before filing a lawsuit under
the FTCA, a plaintiff must file an administrative tort claim
with the appropriate federal agency, here the USMS, within
“two years after such claim accrues.” 28 U.S.C. § 2401(b).
The FTCA authorizes suits only against the United States
and not against federal agencies or individuals. Rivera v.
United States, 928 F.2d 592, 609 (2d Cir. 1991) (“The only
proper federal institutional defendant in such an action is the
United States.”); 28 U.S.C. § 2679(b)(1). An FTCA complaint
against the United States must be filed with the district court
within six months from the date the administrative claim
is denied, or if the agency fails to reach a decision on the
administrative claim, within six months from the date a
plaintiff first presents their claim to the federal agency. 28
U.S.C. § 2675(a). The Court lacks subject matter jurisdiction
over an FTCA lawsuit if the plaintiff has not exhausted
their administrative remedies before filing suit. McNeil v.
United States, 508 U.S. 106, 112–113 (1993); Adeleke v.
United States, 355 F.3d 144, 153 (2d Cir. 2004) (failure
to exhaust administrative remedies is a jurisdictional bar to
FTCA claims).
Here, there is no indication that Plaintiff has filed a federal
tort claim with the USMS regarding what allegedly occurred
at her home on May 10, 2024. And, in any event, she has
not named the United States, the only proper defendant in
an FTCA claim. Therefore, the Court lacks jurisdiction to
entertain an FTCA claim at this time.
* * *
Although district courts typically allow pro se plaintiffs an
opportunity to amend their complaints, “leave to amend need
not be granted when amendment would be futile.” Terry v.
Inc. Vill. of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016).
“Where it appears that granting leave to amend is unlikely
to be productive ... it is not an abuse of discretion to deny
leave to amend.” Apotex Inc. v. Acorda Therapeutics, Inc.,
823 F.3d 51, 62 (2d Cir. 2016). Here, the Court declines
to grant Plaintiff leave to amend because the nature of the
defects in Plaintiff's claims, as discussed herein, would render
any amendment futile. See, e.g., Bravo, 684 F. Supp. 3d at
126 (finding that amendment of pro se plaintiff's complaint,
which attempted to assert Bivens claims against the USMS,
“would not be productive”); Davila v. Lang, 343 F. Supp.
3d 254, 272, 283 (S.D.N.Y. Oct. 23, 2018) (dismissing pro
se plaintiff's FTCA claim without leave to amend because
plaintiff had not demonstrated that he first presented his claim
to the appropriate agency and exhausted his administrative
remedies).
CONCLUSION
*3 Accordingly, Plaintiff's complaint, filed IFP, is dismissed
without prejudice, for lack of subject matter jurisdiction.
Because there is no indication that Plaintiff has already filed a
federal tort claim with the USMS, the Court cannot entertain
a potential claim under the FTCA.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Memorandum and Order would not be
taken in good faith and therefore in forma pauperis status
is denied for the purpose of an appeal. Coppedge v. United
States, 369 U.S. 438, 444–45 (1962).
Case 1:25-cv-00774-AJB-ML Document 16 Filed 12/30/25 Page 213 of 340

Shaw v. United States Marshall, Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
SO ORDERED. All Citations
Not Reported in Fed. Supp., 2024 WL 4574146
Footnotes
1 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases,
footnotes, and citations are omitted.
2 The Court notes that Plaintiff did not identify any individual officers of the USMS as defendants in this action.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Sigalovskaya v. Braden, 149 F.4th 226 (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
149 F.4th 226
United States Court of Appeals, Second Circuit.
Karina SIGALOVSKAYA, Plaintiff-Appellant,
v.
Special Agent Abigail BRADEN, Special Agent Luann
Walter, Special Agent Megan Buckley and Special
Agent Robert Mancene, Individually and in their Official
Capacity as Special Agents, Defendants-Appellees. *
No. 23-7625-cv
|
August Term, 2024
|
Argued December 3, 2024
|
Decided August 27, 2025
Appeal from the United States District Court for the Eastern
District of New York.
Attorneys and Law Firms
Jon L. Norinsberg, Jon L. Norinsberg, Esq., PLLC, New York,
NY, for Plaintiff-Appellant.
Dara A. Olds (Varuni Nelson, on the brief), Assistant United
States Attorneys, for Breon Peace, United States Attorney
for the Eastern District of New York, Brooklyn, NY, for
Defendants-Appellees.
Before: Lynch, Lee, and Pérez, Circuit Judges.
Opinion
Judge Lee concurs in the judgment in a separate opinion.
Judge Pérez concurs in the judgment in a separate opinion.
Judge Lynch dissents in part in a separate opinion.
Per Curiam:
*227 Plaintiff-Appellant Karina Sigalovskaya brought
claims of false arrest, malicious prosecution, abuse of
process, and the denial of a fair trial against Abigail
Braden, Luann Walter, Megan Buckley, and Robert Mancene
(collectively, “Defendants”), four special agents of the
Homeland Security Investigations (“HSI”) unit within the
Department of Homeland Security (“DHS”). These claims
arose from a 2013 incident in which the HSI special agents
allegedly unlawfully entered and searched Sigalovskaya's
home, separated her from her children, and fabricated
evidence by falsely accusing her of making a confession that
ultimately resulted in Sigalovskaya's arrest and subsequent
pretrial detention. Following summary judgment, three
claims and two defendants remained: false arrest and
malicious prosecution claims against Braden and a failure-
to-intervene claim against Mancene. Before trial was set to
commence, Defendants moved for judgment on the pleadings,
contending that the Supreme Court's then-recent decision in
Egbert v. Boule, 596 U.S. 482, 142 S.Ct. 1793, 213 L.Ed.2d
54 (2022), foreclosed Sigalovskaya's remaining claims. The
district court granted the motion, concluding that following
Egbert, Sigalovskaya has no cause of action under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See
Sigalovskaya v. Braden, No. 15-CV-34 (LDH), 2023 WL
6385761, at *4–7 (E.D.N.Y. Sept. 29, 2023). On appeal,
Sigalovskaya challenges the district court's dismissal of her
false arrest and malicious prosecution claims. The judgment
of the district court is affirmed.
Eunice C. Lee, Circuit Judge, concurring:
Appellant Karina Sigalovskaya alleges that during a
warrantless entry and search of her home, a federal law
enforcement officer falsely claimed that she confessed to
taking pornographic images of her own child. According to
Sigalovskaya, this falsified evidence resulted in her arrest on
felony criminal charges, temporary loss of guardianship of her
two children, and placement on the New York sex offender
registry. Although Sigalovskaya's allegations are certainly
grievous, I find that, in keeping with the Supreme Court's
jurisprudence on damages claims against federal officers, the
district court properly concluded that Sigalovskaya does not
have a cause of action under Bivens because (1) her claims
are rooted in the alleged fabrication of evidence, which is a
context meaningfully different from that of Bivens, and (2)
there are special factors that weigh against extending Bivens
here.
BACKGROUND 1
On February 11, 2013, HSI Special Agents Braden, Walter,
Buckley, and Mancene, then employed within the HSI's
Child Exploitation Group, arrived at Sigalovskaya's Brooklyn
apartment, seeking to arrest Evidal Ifraimov, Sigalovskaya's
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common-law husband. HSI had been investigating Ifraimov
for approximately eight months on allegations of possession
of child pornography.
Upon their arrival, the special agents “pound[ed]” on the door
and yelled “police.” Am. Compl. ¶¶ 9–10, Sigalovskaya v.
Braden, No. 15-CV-34 (LDH) (E.D.N.Y. Feb. 12, 2016), Dkt.
No. 16. After Sigalovskaya immediately answered the door,
*228 Special Agents Walter, Buckley, and Mancene forced
their way into the apartment without obtaining Sigalovskaya's
consent to enter. Once inside the apartment, Special Agents
Walter, Buckley, and Mancene separated Sigalovskaya from
her two children and, again without her consent, searched the
apartment after Sigalovskaya informed them that her husband
was not home.
While the search was ongoing, Ifraimov called Sigalovskaya.
The agents demanded that she answer the call on
speakerphone and speak to him in English.
After speaking to Ifraimov, Sigalovskaya received a call from
his attorney, who instructed her to tell the police, “Leave my
house now, you are trespassing,” which Sigalovskaya did.
Id. ¶¶ 28–29 (emphasis omitted). Despite this directive, the
special agents remained in Sigalovskaya's home, conferring
amongst themselves for about ten minutes before Special
Agent Braden returned to the room where Sigalovskaya was
being held and demanded that she write a statement.
Sigalovskaya alleges that Special Agents Walter, Buckley,
and Mancene began to “lob[ ]” accusations that she
had helped a “grown man”—Ifraimov—“touch a girl
inappropriately.” Id. ¶ 33. Further, Special Agent Braden
claimed that she had proof of Ifraimov's unlawful activities
and proceeded to show Sigalovskaya two redacted non-
pornographic photographs depicting Sigalovskaya's five-
year-old daughter from the waist up, clothed in a long-
sleeve shirt. When asked if she recognized the girl in the
photos and where the photos were taken, Sigalovskaya
responded that the girl was her daughter and that it appeared
the photos had been taken in one of the rooms of her
home. However, Sigalovskaya denied taking the photographs.
Notwithstanding this denial, Special Agent Braden “falsely”
claimed that Sigalovskaya had confessed to taking the
purportedly pornographic photographs and stated that her
eleven-year-old son also participated in taking such pictures.
Id. ¶¶ 47–48. The special agents “then forwarded these false
and misleading statements” to the U.S. Attorney's Office for
the Eastern District of New York. Id. ¶ 52.
“As a result of defendants’ false ‘evidence,’ ” Sigalovskaya
was arrested and charged with a violation of 18 U.S.C. §
2251(a), sexual exploitation of children, and 18 U.S.C. §
2252(a)(4)(B), certain activities relating to material involving
the sexual exploitation of minors. Id. ¶ 55. Sigalovskaya
was denied bail at her arraignment and consequently held at
the Metropolitan Detention Center for approximately three
weeks, where she was subjected to invasive strip searches,
propositioned by other inmates, and exposed to inmates with
communicable diseases.
Then, on March 5, 2013, all charges against Sigalovskaya
were dropped following a motion to dismiss filed by the
U.S. Attorney's Office. Despite the dismissal, the New York
State Administration for Children Services (“ACS”) filed a
petition to permanently revoke Sigalovskaya's guardianship
over her two children, which resulted in Sigalovskaya being
unable to see or speak to her children for three months.
After multiple court appearances and legal fees, Sigalovskaya
regained full custody of her children, but was required to have
ACS visit her apartment twice per month for a period of time.
Additionally, Sigalovskaya was placed on the New York State
Sex Offender Registry.
On January 6, 2015, Sigalovskaya initiated the underlying
civil action and filed her amended, operative complaint
on February 12, 2016. Following the close of discovery,
Defendants moved for summary judgment. On March 15,
2019, the district court granted the motion for summary
*229 judgment in part, dismissing Sigalovskaya's fair trial
claim as duplicative of the malicious prosecution claim,
dismissing the abuse of process claim as an unrecognized
cause of action under Bivens, and dismissing the false arrest
and malicious prosecution claims against Special Agents
Walter and Buckley, as well as the malicious prosecution
claim against Special Agent Mancene, based on a finding that
the special agents lacked the kind of personal involvement
necessary to sustain these claims against them. However,
the district court denied the motion for summary judgment
with respect to Sigalovskaya's false arrest and malicious
prosecution claims against Special Agent Braden, finding
that there remained a genuine dispute of material fact as to
whether Special Agent Braden had probable cause to arrest
Sigalovskaya. The district court also denied the motion for
summary judgment as to Sigalovskaya's false arrest claim
against Special Agent Mancene, determining that the claim
could proceed under a failure-to-intervene theory. The district
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court further concluded that neither Mancene nor Braden
were entitled to qualified immunity on summary judgment.
Following the district court's decision, the only remaining
claims were the false arrest and malicious prosecution claims
against Special Agent Braden and the failure-to-intervene
claim against Special Agent Mancene. Although the trial was
set for October 7, 2019, due to scheduling conflicts and the
COVID-19 pandemic, it was rescheduled for October 11,
2022.
On June 8, 2022, four months before trial was set to
begin, the Supreme Court rendered its decision in Egbert v.
Boule, which held that a plaintiff could not assert a Fourth
Amendment excessive force claim and a First Amendment
retaliation claim against a U.S. Border Patrol agent under
Bivens. 596 U.S. at 494, 497, 142 S.Ct. 1793. Thereafter, on
September 15, 2022, Defendants filed a motion for judgment
on the pleadings pursuant to Federal Rule of Civil Procedure
12(c), contending that, following Egbert, Sigalovskaya's
false arrest, malicious prosecution, and failure-to-intervene
claims presented new contexts under Bivens and that special
factors militated against extending a Bivens remedy for those
claims. 2
On September 29, 2023, after supplemental briefing on the
matter, the district court granted the motion for judgment on
the pleadings, dismissing Sigalovskaya's remaining claims.
Applying the two-step analysis for evaluating Bivens claims
developed in Ziglar v. Abbasi, 582 U.S. 120, 137 S.Ct.
1843, 198 L.Ed.2d 290 (2017), and refined in Egbert, the
district court concluded that: (1) Sigalovskaya's malicious
prosecution and failure-to-intervene claims arose as new
Bivens contexts, since Bivens did not involve such claims;
(2) although the false arrest claim “ha[d] parallels to Bivens,”
because the federal agency here differed from the federal
agency in Bivens, and the fabrication of evidence was the
primary “focus of [Sigalovskaya's] complaint,” the false
arrest claim was also a new Bivens context; and (3) special
factors, including the existence of alternative remedies for
relief, foreclosed any Bivens remedy for Sigalovskaya's
claims. Sigalovskaya, 2023 WL 6385761 at *4–6. This appeal
followed.
DISCUSSION
We review a district court's dismissal of a complaint
pursuant to a Rule 12(c) motion *230 for judgment on the
pleadings de novo, “accepting all factual allegations in the
[c]omplaint as true and drawing all reasonable inferences in
the nonmoving party's favor.” Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 78 (2d Cir. 2015) (alterations adopted)
(internal quotation marks omitted). Sigalovskaya contends
that her Fourth Amendment, false arrest, and malicious
prosecution claims should be allowed to proceed to trial as
viable Bivens claims.
A. The Bivens Framework
In 1971, the Supreme Court rendered its decision in Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
recognizing for the first time an implied damages action “to
compensate persons injured by federal officers who violated
the [Fourth Amendment's] prohibition against unreasonable
search and seizures.” Abbasi, 582 U.S. at 131, 137 S.Ct. 1843
(citing Bivens, 403 U.S. at 397, 91 S.Ct. 1999). In the years
that followed, the Supreme Court recognized an implied cause
of action for constitutional violations in two other contexts. In
Davis v. Passman, 442 U.S. 228, 248–49, 99 S.Ct. 2264, 60
L.Ed.2d 846 (1979), the Court held that under the Due Process
Clause of the Fifth Amendment, an administrative assistant
had the right to sue a congressman for firing her based on
gender discrimination. A year later, in Carlson v. Green,
446 U.S. 14, 17–19, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980),
the Court recognized the right of prisoners to bring a cruel
and unusual punishment claim under the Eighth Amendment
against federal prison officials for failing to provide adequate
medical treatment.
“These three cases—Bivens, Davis, and Carlson—represent
the only instances in which the Court has approved of
an implied damages remedy under the Constitution itself.”
Abbasi, 582 U.S. at 131, 137 S.Ct. 1843. In the more than four
decades since the Supreme Court last endorsed the creation
of an implied cause of action arising from constitutional
violations, it has “consistently refused to extend Bivens
liability to any new context or new category of defendants.”
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct.
515, 151 L.Ed.2d 456 (2001); see also Egbert, 596 U.S. at
486, 142 S.Ct. 1793 (citing eleven cases in which the Court
declined to create an implied damages remedy under Bivens).
This is because, as the Supreme Court made clear in Egbert,
“creating a cause of action is a legislative endeavor ... [a]nd
the Judiciary's authority to do so at all is, at best, uncertain.”
596 U.S. at 491, 142 S.Ct. 1793.
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Though “recognizing a cause of action under Bivens is ‘a
disfavored judicial activity,’ ” the Supreme Court has not
“dispense[d] with Bivens altogether.” Id. (quoting Abbasi, 582
U.S. at 135, 137 S.Ct. 1843). To that end, in analyzing a
proposed claim under Bivens, courts generally apply the two-
step framework articulated in Abbasi. See Abbasi, 582 U.S.
at 139, 137 S.Ct. 1843. Under Abbasi’s two-step framework,
a court first considers “whether the case presents ‘a new
Bivens context’—i.e., is it ‘meaningfully’ different from the
three cases in which the [Supreme] Court has implied a
damages action.” Egbert, 596 U.S. at 492, 142 S.Ct. 1793
(alteration adopted) (quoting Abbasi, 582 U.S. at 139, 137
S.Ct. 1843). “[I]f a claim arises in a new context,” the court
then considers whether there are “ ‘special factors’ indicating
that the Judiciary is at least arguably less equipped than
Congress to ‘weigh the costs and benefits of allowing a
damages action to proceed.’ ” Id. (quoting Abbasi, 582 U.S.
at 136, 137 S.Ct. 1843). “[T]h[e]se steps often”—but not
necessarily always—“resolve to a single question: whether
there is any reason to think that *231 Congress might be
better equipped to create a damages remedy.” Id.
B. New Context Analysis
The Supreme Court's “understanding of a new [Bivens]
context is broad.” Hernandez v. Mesa, 589 U.S. 93, 102, 140
S.Ct. 735, 206 L.Ed.2d 29 (2020) (internal quotation marks
omitted). Though not exhaustive, factors that give rise to a
new Bivens context include
the rank of the officers involved;
the constitutional right at issue; the
generality or specificity of the official
action; the extent of judicial guidance
as to how an officer should respond
to the problem or emergency to be
confronted; the statutory or other
legal mandate under which the officer
was operating; the risk of disruptive
intrusion by the Judiciary into the
functioning of other branches; or the
presence of potential special factors
that previous Bivens cases did not
consider.
Abbasi, 582 U.S. at 140, 137 S.Ct. 1843.
On appeal, Sigalovskaya concedes that her malicious
prosecution claim arises under a new Bivens context but
contends that the false arrest claim falls squarely within a
Fourth Amendment claim under Bivens. In finding otherwise,
the district court concluded that following Egbert, the
involvement of a federal agency that differed from the federal
agency in Bivens was sufficient to create a new context.
See Sigalovskaya, 2023 WL 6385761, at *5. Accordingly,
the district court determined that because this case involves
HSI special agents rather than agents of the former Federal
Bureau of Narcotics, the case at bar “involves a new category
of defendants,” and thus the false arrest claim presented
a new Bivens context. Id. Sigalovskaya asserts that the
district court's determination is erroneous because (1) Egbert
pronounced no such “new rule” that the difference in agency
is now sufficient to find a new context; and (2) if taken to its
logical conclusion, the district court's ruling would “preclude
Fourth Amendment search-and-seizure claims under Bivens
altogether” since federal agents no longer work for the
defunct Federal Bureau of Narcotics. Appellant's Br. at 24–
26.
Sigalovskaya raises sound and persuasive arguments for why
the district court incorrectly concluded that after Egbert,
the difference in agency alone suffices to find that the
false arrest claim presents a new Bivens context. First,
as Sigalovskaya notes, in Egbert, the Supreme Court did
not devote any substantive discussion to the new context
inquiry. Rather, the Court simply noted that the Ninth Circuit
accepted, without discussion, that the “Fourth Amendment
claim [alleging excessive force] presented a new context for
Bivens purposes,” and then engaged in an in-depth analysis of
the special factors inquiry. Egbert, 596 U.S. at 494, 142 S.Ct.
1793. Defendants nevertheless argue that Egbert does inform
the new context analysis of Sigalovskaya's claims because we
have, on at least two occasions following Egbert, affirmed
district court decisions finding that claims raised against “a
new category of defendants” presented a new Bivens context,
see Lewis v. Bartosh, No. 22-3060-pr, 2023 WL 8613873,
at *2 (2d Cir. Dec. 13, 2023) (summary order) (internal
quotation marks omitted); Cohen v. Trump, No. 23-35, 2024
WL 20558, at *2 (2d Cir. Jan. 2, 2024) (summary order)
(internal quotation marks omitted).
However, not only are Lewis and Cohen non-precedential
decisions, but unlike the special agents involved here, the
category of defendants in each of those cases is notably
distinguishable from the type of law enforcement officers in
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Bivens. As noted earlier, the Supreme Court has instructed
that in determining whether a *232 case presents a new
Bivens context, courts are to consider, among others factors,
“the rank of the officers involved” and the “statutory or
other legal mandate” under which they operate. Abbasi, 582
U.S. at 140, 137 S.Ct. 1843. It is therefore unsurprising that
in Lewis and Cohen, respectively, we summarily affirmed
the dismissal of claims against high-ranking officials of the
Executive Branch, including a former U.S. President, and
Deputy Marshals charged under law with overseeing the
protection of the Judicial Branch, where these categories of
defendants differ from that of the line-level, criminal law
enforcement officers involved in both Bivens and the instant
action. See Lewis, 2023 WL 8613873, at *1; Cohen, 2024 WL
20558, at *1.
Moreover, as Sigalovskaya convincingly argues, the
dismissal of a Fourth Amendment Bivens claim based solely
on the difference in federal agency would, if taken to its
logical conclusion, preclude a damages remedy for any
Bivens search-and-seizure claim since the Federal Bureau of
Narcotics—the agency at issue in Bivens—no longer exists.
Such a conclusion would be contrary to the Supreme Court's
jurisprudence, as the Court has not “dispense[d] with Bivens.”
Egbert, 596 U.S. at 491, 142 S.Ct. 1793; see also Hicks v.
Ferreyra, 64 F.4th 156, 166 (4th Cir. 2023) (The “severe
narrowing of the Bivens remedy in other contexts does not
undermine the vitality of Bivens in the warrantless-search-
and-seizure context of routine criminal law enforcement.”).
While I find the federal agency distinction unpersuasive,
the district court did not rely on this argument as the sole
basis for its conclusion that Sigalovskaya's false arrest claim
arises under a new Bivens context. The district court also
concluded that the false arrest claim presented a new Bivens
context because “the focus of [Sigalovskaya's] complaint is
the fabrication of evidence that led to her arrest and prolonged
detention.” Sigalovskaya, 2023 WL 6385761, at *5. This
“type of misconduct,” the district court reasoned, was “new”
and meaningfully different from the misconduct at issue in
Bivens—an “illegal entry” into the plaintiff's home “during
which agents searched [the home] ‘from stem to stern’ after
[the plaintiff] had been ‘manacled’ ” in front of his wife and
children. Id. (quoting Bivens, 403 U.S. at 389, 91 S.Ct. 1999).
I conclude that on this point, the district court did not err.
Sigalovskaya argues that the district court “placed undue
emphasis on [her] false confession claim,” without
recognizing the extensive search-and-seizure allegations
raised in the complaint that are inextricably intertwined with
the false confession allegations. Appellant's Br. at 28, 30–31.
Specifically, she contends that the allegations in her complaint
fall squarely within Bivens because in it, she alleged, among
other things, that:
i) Defendants proceeded to force their way past
[Sigalovskaya] into her apartment, without obtaining her
consent to enter the premises; ii) Defendants did not
have an arrest warrant for [her]; iii) Defendants had not
attempted to obtain an arrest warrant for [her] prior to
entering her apartment; iv) [a]t the time when Defendant
Special Agents entered the apartment on February 11,
2013, Defendants knew that they had no evidence against
Plaintiff; v) [w]hen [Sigalovskaya] informed defendant
Special Agents that her common-law husband, Evidal
Ifraimov, was not home, Defendants began to unlawfully
search her apartment; and vi) [o]n the advice of counsel,
[Sigalovskaya] instructed Defendants to “leave my house
now, you are trespassing,” but Defendants refused to do so.
*233 Id. at 28 (internal quotation marks and emphases
omitted). Sigalovskaya asserts that these allegations are “on
all four with Bivens” given that “[b]oth cases involve a
warrantless entry ... a warrantless search inside of Plaintiff's
apartment ... [and] a warrantless arrest inside of Plaintiff's
residence.” Id. at 29.
Though Sigalovskaya's complaint contains allegations of an
unlawful search and seizure, I am unconvinced that these
allegations suffice to find that the claim at issue—the false
arrest claim—does not present a new Bivens context. First,
it is important to note that at this stage of the proceedings,
Sigalovskaya's false arrest claim remains viable only against
Special Agent Braden. Sigalovskaya has not challenged the
district court's grant of partial summary judgment in favor
of Defendants, which dismissed the claims against Special
Agents Buckley and Walter, and thus, any arguments that
Sigalovskaya may have had regarding that decision are
abandoned. See Chunn v. Amtrak, 916 F.3d 204, 206 n.1
(2d Cir. 2019). Moreover, Sigalovskaya has also expressly
stated that she “appeals the District Court's dismissal of her
false arrest and malicious prosecution claims, but not her
failure to intervene claim.” Appellant's Br. at 16 n.2. Thus, the
question is whether, as asserted against Special Agent Braden,
Sigalovskaya's false arrest claim is in line with Bivens. In
reviewing the amended complaint at face value, I find that the
answer to this question is no.
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Importantly, the allegations in the complaint that could give
rise to an unlawful search and seizure claim are levied against
the other special agents, but not Special Agent Braden. In one
paragraph, the complaint states that “Special Agent Luann
Walter, Special Agent Megan Buckley, and Special Agent
Robert Mancene,” but not Special Agent Braden, “proceeded
to force their way past [Sigalovskaya] into her apartment,
without obtaining her consent to enter the premises.” Am.
Compl. ¶ 12. In a subsequent paragraph, the complaint alleges
that “Special Agent Luann Walter, Special Agent Megan
Buckley, and Special Agent Robert Mancene,” but not Special
Agent Braden, “immediately separated [Sigalovskaya] from
her two children.” Id. ¶ 13. Thereafter, the complaint states
that it was “Special Agent Luann Walter, Special Agent
Megan Buckley, and Special Agent Robert Mancene,” but not
Special Agent Braden, who “began frantically searching the
apartment.” Id. ¶ 14. Consequently, Sigalovskaya's complaint
charges the other special agents—not the one with whom her
false arrest claim remains potentially viable—with unlawfully
entering and searching her home, and separating her from her
children.
Moreover, Sigalovskaya's complaint makes it clear that what
precipitated her arrest, and what is at the crux of her false
arrest claim, is the allegation that Special Agent Braden
falsely claimed that Sigalovskaya had confessed to taking
the purportedly pornographic pictures of her daughter, and
then forwarded the fabricated evidence to the U.S. Attorney's
Office. See Am. Compl. ¶¶ 46–49, 52. Indeed, the complaint
expressly states that it was the “false evidence” that resulted
in Sigalovskaya's arrest. Id. ¶ 55 (internal quotation marks
omitted). Thus, though Sigalovskaya alleges that she had been
arrested and detained without probable cause, id. ¶ 94, unlike
the plaintiff in Bivens, her false arrest claim centers on the
allegation of fabricated evidence, rather than a warrantless
search or seizure offending “primarily rights of privacy.”
Bivens, 403 U.S. at 390, 91 S.Ct. 1999; see also id. at 408, 91
S.Ct. 1999 (Harlan, J., concurring) (“The personal interests
protected by the *234 Fourth Amendment are those we
attempt to capture by the notion of ‘privacy.’ ”). 3
In recent years, our sister circuits have found that claims
involving the fabrication of evidence present a new Bivens
context. See, e.g., Sheikh v. U.S. Dep't of Homeland Sec.,
106 F.4th 918, 925 (9th Cir. 2024) (finding that a Fourth
Amendment claim against HSI agents based on an allegation
of fabricated evidence that led to the plaintiff's indictment
presented a new context under Bivens); Ahmed v. Weyker, 984
F.3d 564, 568–70 (8th Cir. 2020) (finding that a false arrest
claim based on a police officer's allegedly false information
that led to the plaintiff's warrantless arrest constituted a new
context); Cantú v. Moody, 933 F.3d 414, 423 (5th Cir. 2019)
(concluding that an unlawful seizure claim under the Fourth
Amendment presented a new context when the claim was
based on officers falsifying affidavits rather than an allegation
that the officers “entered his home without a warrant or
violated his rights of privacy”); see also Annappareddy v.
Pascale, 996 F.3d 120, 136 (4th Cir. 2021) (finding that
a plaintiff's Fourth Amendment false arrest claim against
federal investigators presented a new context, in part, because
the “alleged misdeeds” were different than those at issue in
Bivens, seeing as “sharing information with prosecutors and
other investigators” is “a different part of police work than
the apprehension, detention, and physical searches at issue in
Bivens” (quoting Farah v. Weyker, 926 F.3d 492, 498–99 (8th
Cir. 2019))).
As in these other cases, and as explained above,
Sigalovskaya's false arrest claim is rooted in her allegation
that Special Agent Braden falsified evidence that resulted
in her arrest and prolonged detention, not in any of the
allegations surrounding an unlawful search and seizure in her
home. Accordingly, while Sigalovskaya's case draws parallels
to Bivens, in the decades since last endorsing the creation
of an implied damages remedy for constitutional violations,
the Supreme Court has made clear that “a modest extension
[of Bivens] is still an extension,” Abbasi, 582 U.S. at 147,
137 S.Ct. 1843, “even if [the claim] is based on the same
constitutional provision,” Hernandez, 589 U.S. at 103, 140
S.Ct. 735. For these reasons, I find that Sigalovskaya's false
arrest claim presents a new Bivens context.
C. Special Factors Analysis
Sigalovskaya argues that even if her false arrest claim
presents a new context, there are no special factors counseling
against extending Bivens to either this claim or the malicious
prosecution claim. As to this issue, Sigalovskaya raises three
main arguments, none of which I find persuasive.
First, Sigalovskaya argues that Egbert and the Supreme
Court's more recent Bivens cases—Hernandez and
Abbasi—“together ... stand for the proposition that a Bivens
claim will not lie where ‘national security is at issue.’ ”
Appellant's Br. at 34 (quoting Egbert, 596 U.S. at 494, 142
S.Ct. 1793). Thus, according to Sigalovskaya, because there
are no national security concerns at issue in this case, the
special factors identified by the Supreme Court through its
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recent jurisprudence are inapplicable here. While it is true
that Egbert, Hernandez, and Abbasi arose within the context
of national security matters, those cases do not stand for the
proposition that the special factors inquiry merely considers
*235 whether national security concerns are at issue. Rather,
the critical question, as analyzed below, is and has always
been “whether there is any rational reason (even one) to think
that Congress is better suited to ‘weigh the costs and benefits
of allowing a damages action to proceed.’ ” Egbert, 596 U.S.
at 496, 142 S.Ct. 1793 (quoting Abbasi, 582 U.S. at 136, 137
S.Ct. 1843).
But even if Sigalovskaya were correct that the Supreme
Court's more recent Bivens cases were primarily focused
on national security, it is possible, if not probable, that
national security concerns could be implicated by extending
a Bivens remedy to Sigalovskaya's claims against an HSI
special agent. As the district court noted, HSI, as the principal
investigative body of DHS, operates both nationally and
internationally. See Sigalovskaya, 2023 WL 6385761, at *6.
Sigalovskaya does not dispute this fact but rather attempts
to shift the focus to the fact that the agents here were
“domestic law enforcement agents” investigating traditional
criminal law. Appellant's Br. at 19–20, 35. However, Egbert
instructs us that “the special factors analysis” cannot be
applied “at such a narrow level of generality” that a court
only looks to the claims as asserted against the specific federal
agent(s) involved in the case. 596 U.S. at 496, 142 S.Ct.
1793 (alteration adopted) (internal quotation marks omitted).
Accordingly, the fact that Sigalovskaya has brought claims
against a special agent investigating traditional criminal law
domestically says little, if anything at all, about the potential
implications of extending a Bivens remedy to false arrest and
malicious prosecution claims against HSI special agents more
generally.
Second, Sigalovskaya argues that the district court erred
in finding that 8 C.F.R. § 287.10 provided an alternative
remedy to her Bivens claims because that regulation applies to
immigration officers, not HSI agents. Despite Sigalovskaya's
arguments to the contrary, following Egbert, the grievance
procedure under § 287.10 provides an alternative remedy that
does foreclose Sigalovskaya's claims.
Section 287.10 provides, in pertinent part, that “[a]ny persons
wishing to lodge a complaint pertaining to violations of
enforcement standards contained in § 287.8 may contact
the Department of Homeland Security, Office of the
Inspector General” and that such alleged violations “shall
be investigated expeditiously.” 8 C.F.R. § 287.10(a)–(b).
Sigalovskaya contends that this regulation only applies to
immigration officers because § 287.8, which is incorporated
by reference, states that the “standards for enforcement
activities contained in this section must be adhered to
by every immigration officer involved in enforcement
activities,” id. § 287.8. But under that regulation, immigration
officers encompass special agents. See id. § 287.8(a)(1)
(iv) (providing that special agents who have completed
basic immigration law enforcement training are considered
immigration officers that have the authority to use non-
deadly force when appropriate). Also, Sigalovskaya's own
complaint acknowledges that HSI is a part of U.S.
Immigration and Customs Enforcement (“ICE”). Am. Compl.
¶ 7. Accordingly, it is not unreasonable—as Sigalovskaya
suggests—for § 287.10 to apply to HSI special agents, even
though it is listed under the subchapter of DHS's regulations
governing “Immigration Regulations.”
Lastly, Sigalovskaya argues that there is no reason to
question whether the judiciary is less equipped to weigh
the costs and benefits of allowing her false arrest and
malicious prosecutions claims to proceed to trial given
that federal courts, particularly those within this Circuit,
are uniquely qualified to adjudicate constitutional claims
*236 against law enforcement officials based on allegations
of fabricated evidence. A similar argument was rejected
by the Supreme Court in Egbert. There, the Court held
that the Ninth Circuit erred in extending Bivens to the
plaintiff's First Amendment claim on the basis that “retaliation
claims are ‘well-established,’ ” explaining that “just because
plaintiffs often plead unlawful retaliation to establish a First
Amendment violation is not a reason to afford them a
cause of action to sue federal officers for money damages.”
Egbert, 596 U.S. at 499–500, 142 S.Ct. 1793. Thus, following
Egbert, Sigalovskaya's argument regarding “this Circuit's
jurisprudence on fabricated evidence claims,” Appellant's Br.
at 42, is not a basis to provide a Bivens remedy for her
claims. For these reasons, I find that there are special factors
counseling against extending Bivens to Sigalovskaya's false
arrest and malicious prosecution claims.
* * *
Had Sigalovskaya's claims been asserted against state
officers, she would have an explicit damages remedy afforded
by 42 U.S.C. § 1983. But in the more than fifty years
since the Supreme Court decided Bivens, “Congress [has] not
provide[d] a specific damages remedy for plaintiffs whose
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constitutional rights were violated by agents of the Federal
Government.” Abbasi, 582 U.S. at 130, 137 S.Ct. 1843.
Against this backdrop, the Supreme Court has made clear
that expanding the Bivens remedy is a “disfavored judicial
activity,” id. at 135, 137 S.Ct. 1843 (internal quotation marks
omitted), and that courts should be wary of doing so when
“there is any rational reason (even one) to think that Congress
is better suited to weigh the costs and benefits of allowing
a damages action to proceed,” Egbert, 596 U.S. at 496, 142
S.Ct. 1793 (internal quotation marks omitted). Remaining
faithful to the Supreme Court's firm guidance, I conclude that,
for the reasons stated above, Sigalovskaya has no cause of
action in this case and her amended complaint was properly
dismissed.
Myrna Pérez, Circuit Judge, concurring:
We may dispose of this case for the identical reason
that the Supreme Court set forth in Egbert v. Boule,
596 U.S. 482, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022).
Sigalovskaya, like the plaintiff in Egbert, may avail herself of
a particular remedial structure set forth within the Department
of Homeland Security's (“DHS's”) regulations. I therefore
concur in affirming the grant of judgment on the pleadings to
the defendants in this case. Sigalovskaya's false-arrest claim
otherwise likely presents no new Bivens context, but we need
not consider that question today.
Sigalovskaya's claims may not proceed here because the
Supreme Court has instructed that where “Congress has
provided alternative remedies for aggrieved parties,” that
alternative remedial structure “independently foreclose[s] a
Bivens action.” Id. at 497, 142 S.Ct. 1793 (emphasis added).
“So long as Congress or the Executive has created a remedial
process that it finds sufficient to secure an adequate level of
deterrence, the courts cannot second-guess that calibration
by superimposing a Bivens remedy.” Id. at 498, 142 S.Ct.
1793. Put differently, an alternative remedial scheme “alone”
is a “special factor” under the Supreme Court's Bivens
jurisprudence that terminates the action. Id. at 493, 142 S.Ct.
1793 (quoting Ziglar v. Abbasi, 582 U.S. 120, 137, 137 S.Ct.
1843, 198 L.Ed.2d 290 (2017)).
Here, Congress has provided for just such an alternative
remedial scheme—the very same one that the Supreme
Court found independently dispositive in Egbert. Under 8
C.F.R. § 287.10(a), DHS must “expeditiously” investigate
“[a]lleged violations of [its] standards for enforcement
*237 activities.” See also id. § 287.10(b) (establishing a
grievance process). Given that this regulation “independently
foreclose[d]” relief in Egbert, see 596 U.S. at 497, 142 S.Ct.
1793, that is enough to end our inquiry here. See Sigalovskaya
v. Braden, No. 15-CV-34 (LDH), 2023 WL 6385761, at
*6 (E.D.N.Y. Sept. 29, 2023) (conducting a similar analysis
below). 1
If I were to consider whether Sigalovskaya's suit presents a
“new context” today, I would find no meaningful daylight
between Sigalovskaya's false-arrest claim and the claim
presented in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971). 2 For over fifty years, the Supreme Court has
repeatedly declined to overrule Bivens. See Egbert, 596 U.S.
at 490–91, 142 S.Ct. 1793; Hernandez v. Mesa, 589 U.S. 93,
103, 140 S.Ct. 735, 206 L.Ed.2d 29 (2020); Ziglar, 582 U.S. at
131, 134, 137 S.Ct. 1843. Rather, plaintiffs may bring Bivens
actions against federal officers who have committed certain
alleged constitutional violations that resemble Bivens claims
the Court has previously recognized. See Egbert, 596 U.S. at
490–92, 142 S.Ct. 1793.
In Bivens, the plaintiff claimed that the defendant agents
made a warrantless entry into his apartment, searched it,
and arrested him on narcotics charges. 403 U.S. at 389,
91 S.Ct. 1999. He alleged, among other things, that the
arrest was effectuated without probable cause, in violation
of the Fourth Amendment. Id. Sigalovskaya's complaint here
hews closely to those facts and to that legal claim. That she
additionally alleged that the government fabricated evidence
in effecting her false arrest does not transform that claim
into a legally distinct one for purposes of any “new context”
inquiry. Respecting precedent, we must not parse Bivens
actions before us with so discerning an eye that we fail to
heed the Court's instruction that Bivens claims may, under
certain previously recognized contexts, proceed. Here, at
bottom, Sigalovskaya, just like Bivens, alleged that federal
government agents lacked probable cause, but proceeded with
her arrest.
The Supreme Court has repeatedly recognized Bivens actions
in the contexts it has delineated, where special factors do not
counsel otherwise. Here, the alternative remedial structure is
a special factor that independently precludes relief. I would
decide this case based solely on the DHS regulation that
sufficed in Egbert and leave to another panel, on another
day, the appropriate manner for going about a “new context”
inquiry where such a remedial structure is absent.
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Gerard E. Lynch, Circuit Judge, dissenting in part:
Sigalovskaya's false arrest claim does not present a new
context. And because *238 that is sufficient for her false
arrest claim to survive Defendants’ motion for judgment on
the pleadings, I respectfully dissent in part from the judgment
affirming the dismissal of that claim. I concur in the judgment
insofar as it affirms the dismissal of Sigalovskaya's claim for
malicious prosecution, as allowing that claim would extend
Bivens to a new context and special factors counsel against
recognizing such a claim.
To determine whether Sigalovskaya has alleged a viable
Bivens claim, we first must assess whether her claim arises in
“a new Bivens context.” Egbert v. Boule, 596 U.S. 482, 492,
142 S.Ct. 1793, 213 L.Ed.2d 54 (2022) (internal quotation
marks omitted). For a case to present a new context, the case
must be “different in a meaningful way from previous Bivens
cases decided by [the Supreme] Court.” Ziglar v. Abbasi,
582 U.S. 120, 139, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017)
(emphasis added).
Like Judge Pérez, I see no meaningful difference between
Sigalovskaya's false arrest claim and the unreasonable
search and seizure claim in Bivens because just like the
plaintiff in Bivens, Sigalovskaya alleges that her arrest was
effectuated “without probable cause” in violation of the
Fourth Amendment. Joint App'x 54 ¶ 94; Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)
(characterizing Bivens's complaint as alleging that his “arrest
was made without probable cause”). The fact that the lack
of probable cause in this case stemmed from Defendants’
alleged fabrication of evidence whereas the lack of probable
cause in Bivens did not is of no moment. Sigalovskaya's
arrest violated the Fourth Amendment, if the allegations in
her amended complaint are true, because the arresting agents
– just like the agents in Bivens – lacked evidence sufficient to
create probable cause to believe that she committed a crime.
That Defendants pretended that they did have such evidence is
not a meaningful difference because the core issue – an arrest
without probable cause – is the same in both cases. 1
To conclude that such a factual difference is sufficient for
Sigalovskaya's false arrest claim to present a new context,
as Judge Lee suggests, would effectively overrule Bivens
without saying so. That is because it is highly improbable that
any case will present the same exact facts that were present
in Bivens. Accordingly, imbuing minute factual distinctions
with legal significance does not seem faithful to the Supreme
Court's admonition that Bivens is still good law, see Egbert,
596 U.S. at 491, 142 S.Ct. 1793, and I share the concerns
voiced in the dissent in Edwards v. Gizzi that drawing fine
factual distinctions to conclude a case presents a new context
in effect overrules Bivens “sub silentio.” 107 F.4th 81, 90–91
(2d Cir. 2024) (Parker, J., dissenting).
Because Sigalovskaya's false arrest claim does not present a
new context, I would not reach the second step of the analysis,
which requires us to evaluate “if there are special factors
indicating that the Judiciary is at least arguably less equipped
than Congress to weigh the costs and benefits of allowing
a damages action to proceed.” *239 See Egbert, 596 U.S.
at 492, 142 S.Ct. 1793 (internal quotation marks omitted).
The Supreme Court has made clear that the purpose of the
special factors analysis is to determine if there is a “reason
to pause before applying Bivens in a new context or to a new
class of defendants.” Hernandez v. Mesa, 589 U.S. 93, 102,
140 S.Ct. 735, 206 L.Ed.2d 29 (2020) (emphasis added). It
therefore follows that if a case does not present a new context,
there is no need to reach the second step of the analysis. I
accordingly disagree with Judge Pérez that the mere presence
of a special factor, here, an alternative remedial regime, is
sufficient to preclude a Bivens remedy for Sigalovskaya's
false arrest claim. Because all law enforcement agencies
have internal disciplinary procedures for investigating and
punishing rogue agents, that rationale too would represent a
de facto overruling of Bivens.
It is telling that here, as in Edwards, a majority of the
panel dismisses a Bivens claim without being able to agree
on a rationale for distinguishing Bivens. See Edwards, 107
F.4th at 82 (Park, J. concurring): id. at 86–87 (Robinson, J.,
concurring). I sympathize with my colleagues’ plight. They
are doing what the Supreme Court appears to want them
to do, when the Supreme Court has not offered a coherent,
intellectually honest basis for reflexively distinguishing cases
that are “materially indistinguishable” from Bivens itself, see
Egbert, 596 U.S. at 513, 142 S.Ct. 1793 (Sotomayor, J.,
concurring in part and dissenting in part), while solemnly
stating that Bivens is still good law, see id. at 491, 142
S.Ct. 1793; Ziglar, 582 U.S. at 134, 137 S.Ct. 1843. Four
Justices recognized in Egbert that this charade is untenable.
See Egbert, 596 U.S. at 503–04, 142 S.Ct. 1793 (Gorsuch,
J., concurring); id. at 526–27, 142 S.Ct. 1793 (Sotomayor,
J., joined by Breyer and Kagan, JJ., dissenting in part and
concurring in part).
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I cannot say it better than Judge Parker so eloquently put it
in Edwards:
[T]he fact that the Supreme Court
continues to express serious doubts
about Bivens’ future does not,
in my view, grant a license to
sub silentio do for the Supreme
Court what it has thus far been
unwilling to do itself. If the Supreme
Court plans to take away important
protections against constitutional
violations and allow federal officials
to act unconstitutionally without
consequence unless and until Congress
acts, then it should face the nation and
say as much. It should not delegate that
work to us.
107 F.4th at 91.
I therefore respectfully dissent from the judgment affirming
the dismissal of Sigalovskaya's false arrest claim.
All Citations
149 F.4th 226 (Mem)
Footnotes
* The Clerk of the Court is respectfully directed to amend the case caption as set forth above.
1 The factual allegations in Sigalovskaya's operative amended complaint are accepted as true for the purposes
of these proceedings.
2 On August 26, 2022, Defendants filed a letter, giving Sigalovskaya and the district court notice of their intent
to file the motion for judgment on the pleadings. On September 15, 2022, Defendants’ motion, along with
Sigalovskaya's opposition, was formally filed with the district court.
3 Notably, Sigalovskaya does not meaningfully dispute the district court's finding that although “the amended
complaint contains allegations concerning the Defendants search of her home, ... [Sigalovskaya] does not
bring a cause of action based upon those facts.” Sigalovskaya, 2023 WL 6385761, at *5 n.4.
1 The investigation and grievance mechanisms described in § 287.10 apply to “immigration officer[s]” in
the Department of Homeland Security. See 8 C.F.R. § 287.8; see id. § 287.10(a) (incorporating § 287.8
by reference). In consulting a DHS organizational chart, the defendant Homeland Security Investigations
agents are organized under DHS's Immigration and Customs Enforcement (“ICE”). See Organizational
Structure, U.S. Immigr. & Customs Enf't, https://www.ice.gov/leadership/organizational-structure [https://
perma.cc/3G2Y-B6XM] (last visited Nov. 14, 2024). In our procedural posture, we may properly take judicial
notice of this fact. See Rynasko v. New York Univ., 63 F.4th 186, 191 n.4 (2d Cir. 2023) (“When considering a
motion made pursuant to Rule 12(b)(6) [or Rule 12(c)] we may take judicial notice of documents from official
government websites.” (internal quotation marks and citation omitted)).
2 In contrast, Sigalovskaya's malicious-prosecution claim, as her counsel conceded at oral argument, appears
to raise a new context. See Oral Arg. Audio Recording at 8:41–9:30.
1 Nor does this case present a new context, as Defendants argue, because the arresting agents were from
the Department of Homeland Security, while the federal agents in Bivens were from the Federal Bureau of
Narcotics. See Bivens, 403 U.S. at 389, 91 S.Ct. 1999. But as Judge Lee correctly points out, the Federal
Bureau of Narcotics does not exist anymore. Accordingly, if Bivens is still good law, the liability it creates
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cannot be escaped merely by changing the name of the agency for which the officers work, any more than
by changing the shape or colors of their badges.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Silva v. Canarozzi, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 1596346
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Gerald J. SILVA, Plaintiff,
v.
M. CANAROZZI, et al., Defendants.
CASE NO. 3:18-cv-1771 (MPS)
|
Signed 04/15/2019
Attorneys and Law Firms
Gerald J. Silva, Danbury, CT, pro se.
INITIAL REVIEW ORDER
Michael P. Shea, United States District Judge
*1 Plaintiff Gerald J. Silva, currently incarcerated at the
Federal Correctional Institution in Danbury, Connecticut,
filed this case under Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics. 403 U.S. 388 (1971), against
seven defendants: Counselor M. Canarozzi, Counselor G.
Hornkohl, Case Manager J. Draper, Unit Manager S. Moore,
Warden D.K. Williams, Regional Director Michael Carvajal,
and Federal Bureau of Prisons Director Mark S. Inch. Silva
contends that the defendants discriminated and retaliated
against him, denied him due process, and defamed him. He
seeks damages and injunctive relief from the defendants in
their individual and official capacities. For the reasons set
forth below, the complaint is DISMISSED pursuant to 28
U.S.C. § 1915A(b)(1).
I. Legal Standard
The Court must review prisoner civil complaints and dismiss
any portion of the complaint that is frivolous or malicious,
that fails to state a claim upon which relief may be granted, or
that seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915A. This requirement applies
to all prisoner filings regardless whether the prisoner pays the
filing fee. Nicholson v. Lenczewski, 356 F. Supp. 2d 157, 159
(D. Conn. 2005) (citing Carr v. Dvorin, 171 F.3d 115 (2d Cir.
1999) (per curiam) ). Here, Silva paid the filing fee.
Although detailed allegations are not required, the complaint
must include sufficient facts to afford the defendants fair
notice of the claims and the grounds upon which they
are based and to demonstrate a plausible right to relief.
Bell Atlantic v. Twombly, 550 U.S. 544, 555–56 (2007).
Conclusory allegations are not sufficient. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The Court must construe pro se pleadings
liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009),
and interpret them to raise the “strongest arguments that
they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 472 (2d Cir. 2006). To plead a cognizable legal claim,
however, a pro se plaintiff must meet the standard of facial
plausibility. See Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir.
2013) (“[A] pro se complaint must state a plausible claim for
relief.”) (citing Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009)
).
II. Allegations in the Complaint
On February 27, 2018, defendant Canarozzi filed a false
incident report stating that the plaintiff had installed a curtain
on his bed. The curtain had been installed by another inmate
on a bed that was not assigned to Silva. ECF No. 1, ¶
1. Defendant Canarozzi falsely stated in the report that he
previously had counseled the plaintiff twice about the curtain.
Id., ¶ 2. Silva considers the report defamatory—“a permanent
‘black mark’ on [his] otherwise stellar prison record and
personal reputation.” Id., ¶ 3.
*2 Defendants Hornkohl and Draper reviewed the report
with Silva the following day. He presented his evidence that
the report was false. Id., ¶ 4. Defendants Hornkohl and Draper
did not agree with his arguments and sanctioned him with loss
of commissary privileges. Id., ¶ 6. Defendants Hornkohl and
Draper did not investigate the charges. Silva contends that
they were negligent and biased against him. Id., ¶ 7.
Defendant Moore reviewed the incident report and sanctions
without investigating. Id., ¶ 9. She did not meet or
communicate with the plaintiff before making her decision.
Id., ¶ 10. Silva exhausted his administrative remedies by
appealing the disciplinary charge to the warden, Regional
Office, and Central Office. Id., ¶ 12.
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Silva v. Canarozzi, Not Reported in Fed. Supp. (2019)
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Following this incident, “the administration” retaliated
against the plaintiff. He was subjected to unnecessary and
unwarranted urine screenings. One screening was conducted
at 4:00 a.m. on June 14, 2018. The plaintiff was awakened
from a deep sleep causing the return of “severe medical
symptoms.” Id., ¶ 15. The plaintiff characterizes these actions
as medical abuse in addition to retaliation. Id., ¶ 16.
Although many inmates were hanging temporary partitions,
including complete bed enclosures, when the incident report
was filed and continue to do so, defendant Canarozzi did
not discipline any other inmate. Id., ¶ 17. Because another
inmate continued to hang partitions near the plaintiff's bed,
the plaintiff stopped using his bed for personal and medical
purposes. Id., ¶ 20. This interfered with the plaintiff's “self-
care plans for chronic medical issues.” Id., ¶ 21.
III. Discussion
A. Money Damages
Plaintiff filed this action under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Bivens permits suits against federal officials for certain
constitutional violations in their individual capacities for
money damages. See FDIC v. Meyer, 510 U.S. 471, 485-86
(1994) (Bivens authorized lawsuits for monetary damages
against federal officials in their individual capacities only);
Caraveo v. U.S. Equal Emp't Opportunity Comm'n, 96 F.
App'x 738, 740 (2d Cir. 2004) (“Bivens actions, however,
do not lie against ... federal employees sued in their official
capacities.”). Bivens allows suits only against officials who
personally commit conduct proscribed by the Constitution.
Thus, “[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory
of respondeat superior.” Iqbal, 556 U.S. at 676.
The plaintiff alleges that defendant Canarozzi issued him
a false disciplinary report, and the report was defamatory;
defendants Hornkohl, Draper, and Moore negligently failed to
investigate the matter; “the administration” retaliated against
him by subjecting him to unwarranted urine screenings that
disturbed his sleep; and defendant Canarozzi failed to issue
disciplinary reports to other inmates for hanging partitions,
thereby singling him out.
To date, the Supreme Court has recognized a Bivens remedy
for three constitutional violations: (1) unreasonable searches
and seizures under the Fourth Amendment, Bivens, 403 U.S.
388; gender discrimination in employment under the Due
Process Clause of the Fifth Amendment, Davis v. Passman,
442 U.S. 228 (1979); and the imposition of cruel and unusual
punishment under the Eighth Amendment, Carlson v. Green,
446 U.S. 14 (1980). The Supreme Court has explained that
“expanding the Bivens remedy is now a disfavored judicial
activity,” and it has therefore “consistently refused to extend
Bivens to any new context or new category of defendants.”
Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (citations
omitted); accord Correctional Servs. Corp. v. Malesko, 534
U.S. 61, 75 (2001) (Scalia, J., concurring) (“Bivens is a relic
of the heady days in which this Court assumed common-
law powers to create causes of action—decreeing them to be
‘implied’ by the mere existence of a statutory or constitutional
prohibition.... [W]e have abandoned that power to invent
‘implications’ in the statutory field. There is even greater
reason to abandon it in the constitutional field, since an
‘implication’ imagined in the Constitution can presumably
not even be repudiated by Congress.”) (citations omitted).
Indeed, the Supreme Court has not recognized a new Bivens
remedy since 1980. “Ziglar also made it clear that the only
recognized implied rights of action were the narrow situations
presented in Bivens, Davis, and Carlson, and lower courts
must scrutinize attempts to expand the Bivens remedy, even
where courts had assumed the availability of such a remedy.”
Gonzalez v. Hasty, 269 F. Supp. 3d 45, 57 (E.D.N.Y. 2017),
aff'd, 755 F. App'x 67 (2d Cir. 2018).
*3 The plaintiff asserts constitutional claims and tort claims.
His constitutional claims are based on violation of his Fifth
Amendment right to due process and his First Amendment
right to be free from retaliation. None of these claims has
been recognized by the Supreme Court or the Second Circuit
as a cognizable Bivens claim. See, e.g., Reichle v. Howards,
566 U.S. 658, 663 n.4 (2012) (“We have never held that
Bivens extends to First Amendment claims.”). Further, “the
existence of alternative remedies usually precludes a court
from authorizing a Bivens action.” Ziglar, 137 S. Ct. at
1865. A federal prisoner may challenge the execution of
his sentence, including prison disciplinary actions and prison
conditions, by filing a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Thompson v. Choinski, 525
F.3d 205, 209 (2d Cir. 2008). (“This court has long interpreted
§ 2241 as applying to challenges to the execution of a
federal sentence, including such matters as the administration
of parole, prison disciplinary actions, prison transfers, type
of detention and prison conditions.”) (quotation marks and
alterations omitted). 1 In light of this alternative avenue
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for relief and the Supreme Court's expressed reluctance to
recognize new causes of action under Bivens, I decline to
extend Bivens to encompass Silva's claims here. See Ojo
v. United States, 2019 WL 1025225, at *7–*10 (E.D.N.Y.
Mar. 4, 2019) (declining to imply a Bivens remedy for
prisoner's equal protection claim challenging prison dental
policy). Silva also asserts tort claims for negligence and
defamation. Negligence is not cognizable in a Bivens action.
See Schweiker v. Chilicky, 487 U.S. 412, 447 (1988) (holding
that “in order to prevail in any Bivens action,” a plaintiff
“must ... prove a deliberate abuse of governmental power
rather than mere negligence”). Silva's claims under Bivens are
therefore dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
Claims based on the negligent or wrongful acts or omissions
of federal employees must be brought under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). See 28
U.S.C. § 2679(b)(1) (claim against the United States under
the FTCA is exclusive remedy for tort claims against federal
employee); see also Castro v. United States, 34 F.3d 106,
110 (2d Cir. 1994) (“[A] claimant's exclusive remedy for
non-constitutional torts by a government employee acting
within the scope of his employment is a suit against the
government under the FTCA.”) (citations omitted). I decline
to construe Silva's tort claims as filed under the FTCA. The
FTCA has several jurisdictional requirements, including that
a lawsuit cannot be filed unless the claim has been presented
to the appropriate federal agency, here the Federal Bureau
of Prisons. See Cooke v. United States, 918 F.3d 77 (2d Cir.
2019). As presented, the claim must include notification of the
incident and a request for money damages in a sum certain. 28
C.F.R. § 14.2(a). Although Silva alleges that he “completed
and exhausted ... all governmental administrative remedies”
by appealing the disciplinary finding, he has not attached
copies of the remedies. I cannot determine whether the
administrative appeals the Silva describes would satisfy the
FTCA filing requirement. In addition, Silva does not indicate
whether he has presented his First Amendment retaliation
claim or his Due Process claims to the Bureau of Prisons in
any form.
For the foregoing reasons, Silva's claims for money damages
against the defendants in their individual and official
capacities are DISMISSED.
B. Injunctive Relief
In addition to money damages, Silva requests several forms of
injunctive relief. Injunctive relief is not available in a Bivens
action. See Polanco v. U.S. Drug Enforcement Admin., 158
F.3d 647, 652 (2d Cir. 1998) (noting that Bivens action is “(by
definition) a claim for money damages”). Nevertheless, “[i]f
a pro se litigant pleads facts that would entitle him to relief,
that petition should not be dismissed because the litigant did
not correctly identify the statute or rule of law that provides
the relief he seeks.” Thompson v. Choinski, 525 F.3d 205,
209 (2d Cir. 2008). “A motion pursuant to § 2241 generally
challenges the execution of a federal prisoner's sentence,
including such matters as ... prison disciplinary actions ... and
prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d
Cir. 2001).
Even assuming habeas relief is available, Silva's due process
claims fail on the merits. Silva asserts that the defendants
violated his right to due process by failing to investigate
and reverse defendant Canarozzi's false disciplinary report.
“In order to establish a violation of due process, a petitioner
must demonstrate that he or she possessed a life, liberty or
property interest, a government official deprived him of one
of those interests, and the procedures provided prior to the
deprivation of that interest were constitutionally inadequate or
insufficient.” Anderson v. Williams, No. 3:15CV1364 (VAB),
2017 WL 855795, at *7 (D. Conn. Mar. 3, 2017). “[A]
prisoner has a liberty interest only if the deprivation is atypical
and significant and the state has created the liberty interest by
statute or regulation.” Tellier v. Fields, 280 F.3d 69, 80 (2d
Cir. 2000) (alterations omitted).
*4 Silva alleges that the defendants placed a “black mark”
in his record and deprived him of his commissary privileges
without due process. The Second Circuit has held that
a prisoner placed in administrative confinement after an
alleged disciplinary infraction did not face an “atypical and
significant” deprivation giving rise to a protected liberty
interest where the administrative confinement lasted fewer
than 101 days. Sealey v. Giltner, 197 F.3d 578, 589–90 (2d
Cir. 1999) (“The conditions of the Auburn SHU are doubtless
unpleasant and somewhat more severe than those of general
population, but the degree of incremental harshness, endured
for 101 days, is not an atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison
life.”) (quotation marks omitted). Courts in this circuit have
routinely held that that “temporary deprivations of privileges,
such as commissary trips and telephone use, do not meet the
standard of an atypical and significant hardship.” Pottinger
v. Sanchez, No. 3:15-cv-1236 (VLB), 2016 WL 1254200,
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at *4 (D. Conn. Mar. 29, 2016) (collecting cases). Silva
does not allege that he suffered any other concrete adverse
consequence because of the false disciplinary report, nor does
he not provide any basis to conclude that he has a protected
interest in having a blemish-free record. As a result, Silva has
not pled facts supporting an inference that he was deprived a
protected property or liberty interest, and he has failed to state
a claim for relief under the Due Process Clause.
Next, Silva contends that the prison “administration” under
the supervision of defendant Williams retaliated against
him for appealing the disciplinary report by waking him
up at 4:00 a.m. for an unwarranted urine screening. “[T]o
sustain a First Amendment retaliation claim, a prisoner
must demonstrate the following: (1) that the speech or
conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was
a causal connection between the protected speech and the
adverse action.” Gill v. Pidlypchak, 389 F.3d 379, 380
(2d Cir. 2004) (quotation marks omitted). Courts “approach
prisoner retaliation claims “with skepticism and particular
care, because virtually any adverse action taken against a
prisoner by a prison official—even those otherwise not rising
to the level of a constitutional violation—can be characterized
as a constitutionally proscribed retaliatory act.” Dorsey v.
Fisher, 468 F. App'x 25, 27 (2d Cir. 2012).
Even assuming Silva has stated a claim for First Amendment
retaliation, the injunctive relief he requests is not available
under § 2241. Federal prisoners may challenge the execution
of their sentence, including the conditions of confinement,
by seeking a writ of habeas corpus. The injunctive relief
that Silva requests is not related to the conditions of his
confinement. For example, he requests “letters of apology
from all of the defendants individually,” and an order
requiring the Bureau of Prisons to “replace the false incident
report with copies of the [a]fore[ ]mentioned letters of
apology in all systems and files.” ECF No. 1 at 13, ¶¶
1, 3. Silva does not contend that the presence of the
disciplinary report in his file has had any material impact on
the duration or conditions of his confinement. He does not
request that the Court require the defendants to reinstate his
commissary privileges—the only deprivation he articulates
in his complaint arguably related to the conditions of
confinement. The writ of habeas corpus is “an extraordinary
remedy ... [and] its use has been limited to cases of special
urgency....” Hensley v. Mun. Court, San Jose Milpitas Judicial
Dist., Santa Clara Cty., California, 411 U.S. 345, 351,
93 S. Ct. 1571, 1575, 36 L.Ed. 2d 294 (1973). It is not
available to remedy a subjective reputational harm without
some connection between that harm and the execution of
Silva's sentence. 2
IV. Conclusion
*5 The complaint is dismissed without prejudice pursuant
to 28 U.S.C. § 1915A and the Clerk is directed to close this
case. Within thirty days of this order, Silva may file a motion
to reopen together with an amended complaint in which he
attempts to address the defects identified in this ruling or
otherwise to plead a cognizable claim, including any claim
for equitable relief under 28 U.S.C. § 2241.
SO ORDERED this 15 th day of April 2019 at Hartford,
Connecticut.
All Citations
Not Reported in Fed. Supp., 2019 WL 1596346
Footnotes
1 “[H]abeas corpus does not provide for money damages.” Jenkins v. Haubert, 179 F.3d 19, 24 (2d Cir. 1999).
2 Silva also requests broader injunctive relief that appears unrelated to the factual allegations in his complaint.
For example, he seeks “court appointed external monitoring and oversight” over the Bureau's petition process,
“especially for those alleging retaliatory behaviors.” ECF No. 1 at 13, ¶ 8. He does not allege that he ever filed
a petition complaining of retaliatory behaviors. He also requests an order requiring the Bureau to “re-install
the fixed privacy/sanitation partitions in the housing units.” Id., ¶ 10. He does not allege that he ever sought
to install such a partition, and the crux of his complaint in this case is that he was falsely accused of doing so.
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Smith v. Arrowood, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 6065027
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Dana SMITH, Plaintiff,
v.
Richard ARROWOOD, Charles Carroll,
and Christian Devinney, Defendants.
6:21-CV-6318 EAW
|
Signed September 18, 2023
Attorneys and Law Firms
Ted A. Barraco, Pittsford, NY, for Plaintiff.
John M. Campolieto, City of Rochester Law Department,
Rochester, NY, Mary K. Roach, U.S. Attorney's Office,
Buffalo, NY, for Defendant Richard Arrowood.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
*1 Plaintiff Dana Smith (“Plaintiff”) filed this action
seeking relief under 42 U.S.C. § 1983 and Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),
for violations of his Fourth and Fourteenth Amendment
rights and other state law claims. (Dkt. 1). Before
the Court is a motion to dismiss filed by defendants
Charles Carroll (“Defendant Carroll”) and Christopher
DeVinney (“Defendant DeVinney”) (collectively, “the
Moving Defendants”). (Dkt. 39). Because the second
amended complaint fails to state a cognizable Bivens claim
against the Moving Defendants, the motion to dismiss is
granted.
DISCUSSION
I. Factual Background
The following facts are taken from Plaintiff's second amended
complaint (Dkt. 34). As required on a motion to dismiss, the
Court treats Plaintiff's factual allegations as true and must
draw all inferences in Plaintiff's favor.
On June 19, 2020, at approximately 8:00 p.m., the
Moving Defendants, along with defendant Richard Arrowood
(“Defendant Arrowood”) and other law enforcement officers,
arrived at a private residence at 1755 Falls Street, in the City
of Niagara Falls, New York. (Id. at ¶ 8). Plaintiff alleges that
these law enforcement officers were part of a United States
Marshals Service task force 1 charged with executing fugitive
warrants and they intended to take Plaintiff into custody. (Id.
at ¶¶ 5, 6 & 9).
Defendant Arrowood approached the residence and shouted
to Plaintiff that he wanted to speak to him. (Id. at ¶ 9). None
of the officers were wearing uniforms or advised Plaintiff
that they were police officers. (Id.). Plaintiff retreated into
the residence and attempted to close the door, but Defendant
Arrowood and Defendant Carroll forced their way into the
residence and tried to physically subdue Plaintiff. (Id. at ¶
10). Defendant DeVinney endeavored to breach the front door
along with Defendant Arrowood and Defendant Carroll, and
he was in a position to stop them but did not attempt to do so.
(Id. at ¶ 11). Once inside, Defendant Arrowood shot Plaintiff
more than once with a .45 caliber handgun at point-blank
range. (Id. at ¶ 14). The gunshots caused Plaintiff serious
injuries including two bullet-entry wounds, significant blood
loss, injury to his diaphragm and spleen, multiple broken
bones, a collapsed lung, and nerve damage. (Id.). Defendant
Carroll and Defendant Arrowood, with the assistance of other
unnamed members of the task force team who entered through
the back door of the residence, dragged Plaintiff out of his
residence and into the yard. (Id.).
*2 Plaintiff alleges that there was neither an arrest nor search
warrant authorizing the entry into his residence and his arrest.
(Id. at ¶ 18). Likewise, no defendant sought permission to
enter the home. (Id. at ¶ 13).
Plaintiff asserts a first cause of action against the Moving
Defendants and Defendant Arrowood for violation of his
Fourth Amendment rights and a second cause of action
for assault against Defendant Arrowood for violation of his
Fourth and Fourteenth Amendment rights. Plaintiff's claim
against Defendant Carroll arises from Defendant Carroll's
forced entry into Plaintiff's residence without a warrant
and Plaintiff also asserts that both Defendant Carroll and
Defendant DeVinney failed to intervene to prevent Defendant
Arrowood from shooting him.
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II. Procedural Background
Plaintiff commenced the instant action on April 14, 2021,
against the Moving Defendants and Defendant Arrowood, as
well as additional defendants employed by federal and local
authorities who were allegedly involved in the incident. (Dkt.
1). After initial motion practice, on August 31, 2022, the
Court issued a Decision and Order dismissing many of the
claims and defendants, but granting Plaintiff leave to amend
his complaint as against Defendant Arrowood, Defendant
Carroll, and Defendant DeVinney. (Dkt. 33). Familiarity with
that Decision and Order is assumed for purposes of this
Decision and Order.
On September 19, 2022, Plaintiff filed his second amended
complaint. (Dkt. 34). On October 11, 2022, Defendant Carroll
and Defendant DeVinney filed the instant motion to dismiss.
(Dkt. 39). On October 17, 2022, Defendant Arrowood filed
his answer to the second amended complaint. (Dkt. 41). On
November 10, 2022, Plaintiff filed a response in opposition
to the motion to dismiss. (Dkt. 43). On November 17, 2022,
Defendant Carroll and Defendant DeVinney filed their reply.
(Dkt. 44).
DISCUSSION
I. Legal Standard
“In considering a motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6), a district court may consider
the facts alleged in the [pleading], documents attached to
the [pleading] as exhibits, and documents incorporated by
reference in the [pleading].” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010). A court should consider
the motion by “accepting all factual allegations as true and
drawing all reasonable inferences in favor of the [claimant].”
Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt.,
843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal,
a claimant must set forth “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 has facial plausibility when the [claimant] pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009)).
“While a [pleading] attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations,
a [claimant]’s obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555, 127
S.Ct. 1955 (internal quotations and citations omitted). “To
state a plausible claim, the [pleading]’s ‘[f]actual allegations
must be enough to raise a right to relief above the speculative
level.’ ” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218
(2d Cir. 2014) (quoting Twombly, 550 U.S. at 555, 127 S.Ct.
1955).
II. Defendant Carroll and Defendant DeVinney's Motion
to Dismiss
*3 Defendant Carroll and Defendant DeVinney move to
dismiss Plaintiff's second amended complaint, arguing that
Plaintiff fails to state a Bivens claim upon which relief may
be granted because the recent United States Supreme Court
decision of Egbert v. Boule, ––– U.S. ––––, 142 S. Ct. 1793,
213 L.Ed.2d 54 (2022), forecloses a constitutional damages
remedy against these defendants for the claims asserted in this
case. The Court agrees. 2
A. Limitations on Bivens Claims
While 42 U.S.C. § 1983 “entitles an injured person to money
damages if a state official violates his or her constitutional
rights,” Congress has not “create[d] an analogous statute
for federal officials. Indeed, in the 100 years leading up to
Bivens, Congress did not provide a specific damages remedy
for plaintiffs whose constitutional rights were violated by
agents of the Federal Government.” Ziglar v. Abbasi, 582
U.S. 120, 130, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017).
“In Bivens, the Court held that it had authority to create ‘a
cause of action under the Fourth Amendment’ against federal
agents who allegedly manacled the plaintiff and threatened his
family while arresting him for narcotics violations.” Egbert,
142 S. Ct. at 1802 (quoting Bivens, 403 U.S. at 397, 91
S.Ct. 1999). “Over the following decade, the Court twice
again fashioned new causes of action under the Constitution
—first, for a former congressional staffer's Fifth Amendment
sex-discrimination claim, see Davis v. Passman, 442 U.S.
228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); and second, for
a federal prisoner's inadequate-care claim under the Eighth
Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct.
1468, 64 L.Ed.2d 15 (1980).” Id.
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Since deciding Carlson in 1980, additional causes of action
arising under Bivens have not been implied. In Ziglar, the
Supreme Court explained that “expanding the Bivens remedy
is now a disfavored judicial activity,” and that the key
question to be asked “is who should decide whether to provide
for a damages remedy, Congress or the courts?” 582 U.S. at
135, 137 S.Ct. 1843 (quotations omitted). The Ziglar Court
further explained that the Bivens remedy may not be extended
into a new context if there are “special factors counselling
hesitation in the absence of affirmative action by Congress,”
id. at 136, 137 S.Ct. 1843 (citation omitted), and that a
context is new “[i]f the case is different in a meaningful way
from previous Bivens cases” decided by the Supreme Court,
id. at 139, 137 S.Ct. 1843. Examples of where a case may
be different include “the rank of the officers involved; the
constitutional right at issue; the generality or specificity of
the official action; the extent of judicial guidance as to how
an officer should respond to the problem or emergency to be
confronted; the statutory or other legal mandate under which
the officer was operating; the risk of disruptive intrusion
by the Judiciary into the functioning of other branches; or
the presence of potential special factors that previous Bivens
cases did not consider.” Id. at 139-40, 137 S.Ct. 1843.
Ultimately, “if there are sound reasons to think Congress
might doubt the efficacy or necessity of a damages remedy[,]
the courts must refrain from creating [one].” Id. at 137, 137
S.Ct. 1843.
*4 More recently, in Egbert, the plaintiff brought a Bivens
action against a United States Border Patrol agent, alleging
that the agent violated his Fourth Amendment rights through
the use of excessive force and violated his First Amendment
rights to protection from retaliation. 142 S. Ct. at 1802. The
Supreme Court reiterated that “[e]ven a single sound reason
to defer to Congress is enough to require a court to refrain
from creating ... a [Bivens] remedy.” Id. at 1803 (quotation
omitted). In other words, “[i]f there is a rational reason to
think” that the answer to the question “who should decide
whether to provide for a damages remedy, Congress or the
Courts?” is Congress, “as it will be in most every case,”
then “no Bivens action may lie.” Id. (citation omitted). The
Supreme Court explained further that “if [it] were called
to decide Bivens today, [it] would decline to discover any
implied causes of action in the Constitution.” Id. at 1803.
The Egbert decision further expounded on the applicable test,
indicating that while prior cases describe a court's analysis
as a two-step process consisting of an inquiry into whether
the case presents “a new Bivens context” and whether there
are “special factors” indicating that the judiciary is less
equipped than Congress to determine if the action should
proceed, “those steps often resolve to a single question:
whether there is any reason to think that Congress might
be better equipped to create a damages remedy.” Id. The
Court held that although the plaintiff presented a Fourth
Amendment claim, as in Bivens, “superficial similarities are
not enough to support the judicial creation of a cause of
action.” Id. at 1805; see also Smith v. Garcia, No. 21-
CV-578 NGG RJR, 2022 WL 17852393, at *7 (E.D.N.Y. Dec.
22, 2022) (“While both cases concern potential violations
of an individual's Fourth Amendment rights, the Supreme
Court has made clear that a claim brought under the same
constitutional provision as a previously successful Bivens
claim may still be found to arise in a new context.”); Cohen
v. United States, No. 21-CV-10774 (LJL), 640 F.Supp.3d
324, 2022 WL 16925984, at *6 (S.D.N.Y. Nov. 14, 2022)
(“[T]he Egbert Court made clear that, effectively, [the special
factors inquiry] operates as a bar to a Bivens claim in all cases
except, perhaps, those involving Fourth, Fifth and Eighth
Amendment claims factually indistinguishable from Bivens,
[Davis], or Carlson.”).
B. Plaintiff's amended complaint does not state
cognizable Bivens claims.
As noted, one assessment for the Court to consider in
assessing the availability of a Bivens remedy is whether the
case presents “a ‘new context’ or involves a ‘new category’
of defendants.” Hernandez v. Mesa, ––– U.S. ––––, 140 S.
Ct. 735, 743, 206 L.Ed.2d 29 (2020) (quoting Correctional
Services Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151
L.Ed.2d 456 (2001)). The “understanding of a ‘new context’
” is construed broadly to include any context that is “different
in a meaningful way from previous Bivens cases decided by
[the Supreme Court].” Id.; see also Karman v. U.S. Customs
and Border Prot., No. 823CV345 (LEK/CFH), 2023 WL
5806313, at *3 (N.D.N.Y. Sept. 7, 2023) (“Yet, ‘[b]ecause
implied causes of action are disfavored, the Court has been
reluctant to extend Bivens liability to any new context or new
category of defendants.’ ” (quoting Krul v. Brennan, 501 F.
Supp. 3d 87, 101 (N.D.N.Y. 2020) (internal quotation marks
omitted))).
Here, Defendant Carroll and Defendant DeVinney argue
that the claims in Plaintiff's amended complaint are asserted
against a new category of defendants, noting that unlike the
narcotics agents in Bivens, Defendant Carroll and Defendant
DeVinney were members of a United States Marshals Service
fugitive task force. Plaintiff argues that the distinction
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between federal agencies is without significance, and that the
“constitution applies equally to all federal law enforcement
officers.” (Dkt. 43 at 3). Not only does Plaintiff cite no legal
authority for his contention, but numerous courts applying
Egbert have found similar distinctions meaningful and
sufficient to support a conclusion that a claim presented a new
context. See Karman, 2023 WL 5806313, at *6 (“Following
the Supreme Court's decisions in Hernandez and Egbert,
district courts have concluded that a Bivens action does
not exist for claims against federal immigration officials.”);
Campbell v. City of Yonkers, No. 19 CV 2117 (VB), 2023 WL
4867459, at *8 (S.D.N.Y. July 31, 2023) (finding meaningful
difference between plaintiff's claim and Bivens where “the
officers involved in Bivens were federal drug enforcement
agents, whereas here the officers were FBI agents, task
force officers, and other local law enforcement officers”);
James v. City of Rochester, No. 23-CV-6057DGL, 2023
WL 3356931, at *3 (W.D.N.Y. May 11, 2023) (dismissing
claims against members of United States Marshals task force
arising from a death occurring in the execution of an arrest
warrant in light of Egbert); Diaz Cruz v. United States, No.
20-CV-891(EK)(SJB), 2023 WL 2574756, at *3 (E.D.N.Y.
Mar. 20, 2023) (“Under the Supreme Court's restrictive
rubric, this case plainly presents a new context. First, Officer
Santana is an ICE agent, whereas Bivens involved federal
narcotics agents.”); Lewis v. Westfield, 640 F. Supp. 3d
249, 250 (E.D.N.Y. 2022) (“Plaintiff's excessive-force and
failure-to-intervene claims present a new Bivens context. The
defendants are Deputy Marshals, rather than federal narcotics
agents.”), appeal docketed, (2d. Cir. Nov. 30, 2022); Edwards
v. Gizzi, No. 20-CV-7371 (KMK), 2022 WL 309393, at *7
(S.D.N.Y. Feb. 2, 2022) (“Additionally, ‘the officers involved
in Bivens were federal narcotics agents, an investigatory
and enforcement force, whereas here, the officers [include]
U.S. Marshals ...’ ”) (quoting Style v. Mackey, No. 17-
CV-1691, 2020 WL 3055319, at *4 (E.D.N.Y. June 8,
2020)), appeal docketed (2d. Cir. March 25, 2022); see
also Clutts v. Lester, No. 20-CV-80-CJW-KEM, 2023 WL
3901489, at *5 (N.D. Iowa June 8, 2023) (“Numerous
courts have found that the position of Deputy U.S. Marshals
renders claims meaningfully different.”); Senatus v. Lopez,
No. 20-CV-60818, 2022 WL 16964153, at *5 (S.D. Fla.
Oct. 12, 2022) (“Defendants here were members of a
fugitive task force deputized by the United States Marshals.
Recently, other courts have held that where the defendants
are governmental officials different than the narcotics agents
in Bivens, affording the plaintiff relief would constitute an
impressible extension of Bivens into a ‘new context.’ ”),
report and recommendation adopted, No. 20-60818-CIV,
2022 WL 16961323 (S.D. Fla. Nov. 16, 2022).
*5 In addition, to the extent that Plaintiff asserts a failure
to intervene claim (the only claim asserted against Defendant
DeVinney), such a claim presents a new context and does
not constitute a cognizable Bivens claim. See Johnson v.
Santiago, 624 F. Supp. 3d 295, 300 (E.D.N.Y. 2022) (“As
courts in this circuit have recognized, ‘a claim for failure
to protect based on the allegation that [Defendant] was
present during the attack on Plaintiff but did not help Plaintiff
or intervene’ presents a new Bivens context.”) (quotation
and citation omitted); Cannenier v. Skipper-Scott, No. 18
CIV. 2383 (LGS), 2019 WL 764795, at *5 (S.D.N.Y. Feb.
20, 2019) (“The Supreme Court has recognized only three
Bivens contexts, none of which include failure to protect ...”);
Martinez v. D'Agata, No. 16 CV 44 (VB), 2019 WL 6895436,
at *7 (S.D.N.Y. Dec. 18, 2019) (declining to find Bivens
remedy for claim against federal defendants for “failure
to intervene rather than the underlying excessive force
violation”); see also Looper v. Jones, No. 22-40579, 2023
WL 5814910, at *2 (5th Cir. Sept. 8, 2023) (“Even though
Carlson created a cause of action for an asthmatic prisoner's
Eighth Amendment failure to medicate claim, it did not create
a cause of action for a prisoner's Eighth Amendment failure
to protect or intervene claim.”); Arias v. Herzon, No. 17-
CV-516-LM, 2023 WL 4204657, at *6 (D.N.H. June 27,
2023) (“Regardless of whether a failure-to-intervene claim
is an alternative theory of liability or separate constitutional
violation, Bivens did not involve any theory that the defendant
officers’ failure to intervene should subject them to bystander
liability under Bivens. And, in light of the Supreme Court's
recent Bivens jurisprudence, this seems like a meaningful
difference.”).
While a closer question may be presented as to Plaintiff's
Fourth Amendment claim against Defendant Carroll, who
allegedly directly participated in the warrantless entry into
Plaintiff's home, this claim still cannot survive an inquiry of
whether there is any reason to think that Congress might be
better equipped to create a damages remedy. The answer, “as
it will be in most every case,” Egbert, 142 S. Ct. at 1803,
is yes. See Challenger v. Bassolino, No. CV1815240(KM)
(MAH), 2023 WL 4287204, at *8 (D.N.J. June 30, 2023)
(“The case law has recognized that these reasons counsel
in particular against the wisdom of creating a new Bivens
claim against U.S. Marshals.”), appeal docketed (3d Cir.
July 27, 2023); Robinson v. Heinze, No. 1:18-CV-131-TCB,
2023 WL 1774998, at *7 (N.D. Ga. Feb. 3, 2023) (“Egbert’s
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analysis applies to this case. Like border patrol agents who
routinely face issues of security, the Defendants in this
case were U.S. Marshals in a fugitive task force expressly
carrying out a statutory mandate.”), appeal docketed (11th
Cir. March 3, 2023); McIntyre v. United States Marshal Serv.,
No. CV181268KMMAH, 2023 WL 2447424, at *6 (D.N.J.
Mar. 10, 2023) (holding that “implying a damages remedy
[against United States Marshals] presents questions better fit
for Congress to address”).
Specifically, alternative remedies exist for aggrieved parties
in Plaintiff's position and preclude Bivens relief here. See
Egbert, 142 S. Ct. at 1804 (“If there are alternative remedial
structures in place, ‘that alone,’ like any special factor, is
reason enough to ‘limit the power of the Judiciary to infer
a new Bivens cause of action.’ ” (quoting Ziglar, 137 S. Ct.
at 1858)); Lewis, 640 F. Supp. 3d at 254-55 (“In Egbert,
the Supreme Court held that the existence of alternative
remedial schemes is a special factor that counsels hesitation in
extending Bivens—even with respect to extensions involving
Fourth Amendment claims in ‘the common and recurrent
sphere of law enforcement.’ ” (quoting Egbert, 142 S. Ct. at
1805 (internal quotation marks omitted))).
In Lewis, the district court specifically examined the existence
of alternative remedial structures for claims asserted against
members of the U.S. Marshals Service:
The Director of the Marshals Service is statutorily
obligated to “supervise and direct the United States
Marshals Service in the performance of its duties.”
28 U.S.C. § 561(g). And by regulation, the Director
“shall” investigate “alleged improper conduct on the
part of U.S. Marshals Service personnel.” 28 C.F.R.
§ 0.111(n). Anyone aggrieved by a Deputy Marshal's
conduct may file a grievance alleging improper conduct.
Ibid. A complaint form for doing so is available on the
website of the Marshals Service. See Complaint Form
Regarding United States Marshal Service Personnel or
Programs, https://www.usmarshals.gov/resources/forms/
complaint-form-regarding-united-states-marshals-service-
personnel-or-programs (last visited 11/10/2022). In
addition, by statute, the Attorney General is required
to ensure that “any component” of the Department that
receives a “nonfrivolous allegation of criminal wrongdoing
or administrative misconduct by an employee of the
Department of Justice ... shall report that information
to the Inspector General.” 5 U.S.C. App. 3 § 8E(d).
Congress has also authorized the Department's Inspector
General to “investigate allegations of criminal wrongdoing
or administrative misconduct by an employee of the
Department of Justice,” “refer such allegations to the
Office of Professional Responsibility,” or refer them to
“the internal affairs office of the appropriate component”
of the Department, including the USMS. Id. § 8E(b)(2).
The Department's Inspector General provides a link on its
website through which any person may report allegations
of wrongdoing. See Hotline, https://oig.justice.gov/hotline
(last visited 11/10/2022).
*6 640 F. Supp. 3d at 254-55. As a result, the Lewis
court concluded that a Bivens claim could not stand. Id.
(“Egbert made clear that remedial schemes of this sort
‘foreclose a Bivens action,’ because ‘[s]o long as Congress
or the Executive has created a remedial process that it finds
sufficient to secure an adequate level of deterrence, the courts
cannot second-guess that calibration by superimposing a
Bivens remedy.’ ... Accordingly, this Court may not extend
Bivens to provide an implied civil damages action for Lewis's
claims against Deputy Marshals in this case.”).
In addition, “[t]he FTCA applies to false arrest, false
imprisonment, and malicious prosecution claims when they
are asserted against ‘law enforcement officers of the United
States Government,’ where ‘law enforcement officer’ is
defined as ‘any officer of the United States who is empowered
by law to execute searches, to seize evidence, or to make
arrests for violations of Federal law.’ ” Parker v. Blackerby,
368 F. Supp. 3d 611, 618 (W.D.N.Y. 2019); Smith, 2022
WL 17852393, at *6 (noting that in Egbert, the Supreme
Court “found administrative procedures almost identical to
those required prior to filing an FTCA claim with a court to
be a sufficient alternative remedy within the special-factors
analysis”); see also Lucas v. Garland, No. CV 23-225WES,
2023 WL 4706818, at *8 n.11 (D.R.I. July 24, 2023)
(foreclosing Bivens claim noting that “Plaintiff has (or could
have had) alternative remedies. These include the USMS
internal grievance procedures, as well as potential state
law tort claims and any claim Plaintiff might have brought
under the Federal Tort Claims Act”). It is not necessary
that alternative avenues of redress provide complete relief to
Plaintiff — “the court must ask only whether it, rather than
the political branches, is better equipped to decide whether
existing remedies should be augmented by the creation of a
new judicial remedy.” Egbert, 142 S. Ct. at 1804 (quotation
omitted).
In sum, applying the standard set forth in Ziglar and Egbert,
there can be no Bivens remedy in the circumstances presented
here. The context here is different from those limited
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circumstances where the Supreme Court has previously
implied a cause of action under the Constitution. And, as
“in most every case,” Egbert, 142 S. Ct. at 1803, there
is at least one rational reason to defer to Congress as to
the availability of a damages remedy. These considerations
lead inexorably to the conclusion that it is Congress, and
not this Court, that should determine whether a damages
remedy is available under the circumstances presented here.
Accordingly, Plaintiff's claims are not cognizable under
Bivens, and the motion to dismiss by Defendant Carroll and
Defendant DeVinney must be granted.
CONCLUSION
For the foregoing reasons, Defendant Carroll and Defendant
DeVinney's motion to dismiss (Dkt. 39) is granted.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 6065027
Footnotes
1 Defendant Carroll and Defendant DeVinney are alleged to be “law enforcement officers acting under color of
legal authority of the United States Marshall's [sic] NY/NJ Regional Fugitive Warrant Task Force” (Dkt. 34 at
¶ 5), and they are represented in this action by the United States Attorney's Office. By contrast, Defendant
Arrowood is alleged to be a City of Rochester Police Department officer assigned to the task force who was
acting “under color of state law” (id. at ¶ 6), and he is represented in this action by the City of Rochester
Law Department.
2 Plaintiff argues that Defendant Carroll and Defendant DeVinney's motion to dismiss his second amended
complaint seeks to reargue matters that were decided in the Court's prior Decision and Order on the previously
filed motions to dismiss (Dkt. 33) and is essentially a motion to reconsider (Dkt. 43 at 2-3). However, as
noted by Defendant Carroll and Defendant DeVinney, in the prior Decision and Order, the Court expressly
stated that the question of whether Plaintiff had stated a proper claim under Bivens was not before it and
no opinion as to the merit of such an argument was issued. (Dkt. 33 n. 7) (“While Bivens provides a limited
remedy in only certain narrowly prescribed situations, the Federal Defendants do not argue for purposes of
the instant motion that the allegations in Plaintiff's amended complaint could not support a cognizable Bivens
claim. Because the matter is not before the Court, nothing in this Decision and Order should be construed
to resolve the question as to whether a Bivens claim lies as to all of Plaintiff's asserted constitutional claims.
See generally Egbert v. Boule, ––– U.S. ––––, 142 S. Ct. 1793, 1800, 213 L.Ed.2d 54 (2022).”).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Stollman v. Williams, Not Reported in Fed. Rptr. (2025)
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2025 WL 2784215
Only the Westlaw citation is currently available.
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.
Shmuel STOLLMAN and Elisa Stollman,
individually and on behalf of their infant
children E.S. and L.S., Plaintiffs-Appellants,
v.
Lakeasha WILLIAMS, Miriam Ortiz-Downes,
Glenn Hyman, Kai Hayes, City of New York,
Annemarie Fuschetti, Ebony Russell, Carmela
Montanile, Tonya Wheelock, Edward O'Connor,
Keren Ennette, Defendants-Appellees. *
No. 23-7610
|
September 30, 2025
Appeal from a judgment of the United States District Court
for the Southern District of New York (John P. Cronan,
Judge).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
September 27, 2023 judgment of the district court is
AFFIRMED. 1
Attorneys and Law Firms
For Plaintiffs-Appellants: Carolyn A. Kubitschek (David J.
Lansner, on the brief), Lansner & Kubitschek, New York, NY.
For Defendants-Appellees:Amy McCamphill (Richard
Dearing, Melanie T. West, on the brief), for Muriel Goode-
Trufant, Corporation Counsel of the City of New York, New
York, NY.
PRESENT: JOHN M. WALKER, JR., SUSAN L. CARNEY,
RICHARD J. SULLIVAN, Circuit Judges.
SUMMARY ORDER
*1 Shmuel Stollman and Elisa Stollman (“Plaintiffs”), the
parents of a severely autistic and nonverbal child (“E.S.”),
appeal from a grant of summary judgment in favor of
the City of New York (the “City”), officials with the
City's Administration for Children's Services (“ACS”) (the
“ACS Defendants”), and school employees (the “School
Defendants”) (together, “Defendants”) on various claims
stemming from the School Defendants’ decision to report
Plaintiffs to ACS for suspected child abuse. After the ACS
Defendants withdrew a petition they had filed against Mr.
Stollman pursuant to Article 10 of the New York Family Court
Act, N.Y. Fam. Ct. Act § 1011 et seq. (“Article 10”), Plaintiffs
brought suit under 42 U.S.C. § 1983, individually and on
behalf of their infant children, for violations of the First,
Fourth, and Fourteenth Amendments and New York state law.
We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
We review a district court's grant of summary judgment de
novo and view the evidence in the light most favorable to
the non-moving party below. See James v. N.Y. Racing Ass'n,
233 F.3d 149, 152 (2d Cir. 2000). Summary judgment is
appropriate “only when there is no genuine issue as to any
material fact.” Id. A dispute is “genuine” when the evidence
on the issue “would permit a reasonable juror to find for the
party opposing the motion.” Figueroa v. Mazza, 825 F.3d 89,
98 (2d Cir. 2016).
I. First-Amendment Retaliation Claims Against the
School Defendants.
Plaintiffs assert that, in retaliation for Mrs. Stollman's
complaints against E.S.’s school and teachers, the School
Defendants filed a report with ACS that falsely suggested that
the Stollmans had neglected and sexually abused E.S. “To
state a First Amendment retaliation claim, a plaintiff must
establish that: (1) his speech or conduct was protected by the
First Amendment; (2) the defendant took an adverse action
against him; 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).
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Here, there is no dispute that Mrs. Stollman engaged in
protected speech when she complained to the school about its
substandard care of E.S., who – according to Mrs. Stollman
– returned home on various occasions with bruises and a wet
diaper. The parties do not dispute that school psychologist
Annemarie Fuschetti, one of the school officials involved
in making the report, was aware of that speech. But even
assuming that it could be said that the school's call to ACS
one day after Mrs. Stollman's most recent complaint to the
school by itself established the requisite causal link between
those two events, the record contains no evidence from which
a reasonable factfinder could find that the school's call to ACS
was adverse or retaliatory.
*2 We have recognized that the protective actions of
mandated reporters such as teachers, who face liability for
inadequate action, are due “unusual deference,” and that
“absent a clear showing of retaliatory or punitive intent,”
such decisions “cannot be considered adverse or retaliatory.”
Id. at 274 (internal quotation marks omitted); see also
Dole v. Huntington Union Free Sch. Dist., 699 F. App'x
85, 87 (2d Cir. 2017) (“If the school officials who called
[Child Protective Services] have a sufficient basis to suspect
potential abuse, we owe unusual deference to their decisions
to report reasonably suspected abuse and neglect.” (alteration
accepted and internal quotation marks omitted)).
Nothing in the record suggests that the School Defendants
acted with retaliatory or punitive intent. Although Plaintiffs
insist that the School Defendants’ allegations concerning
E.S.’s poor hygiene were knowingly false and misleading,
they offer no evidence of such willfulness or bad faith.
And while Plaintiffs counter that a prior investigation into
similar reports of neglect on the part of the Stollmans had
been dropped by ACS, the agency noted when it closed
this case in February 2017 that “school officials continue
to report the concerns that E.S.... arrives at school with
soiled diaper.” App'x at 307 (alteration accepted and emphasis
added). There is nothing in the record to suggest that Fuschetti
or another school official involved in making the report was
anything other than reasonably troubled by the reports of
E.S.’s poor hygiene. And the fact that a prior investigation
was dropped does not support the inference that a later report
was pretextual.
As for the suspected sexual abuse, there is no dispute
that, beginning in October 2017, E.S. returned home from
school crying. Around this same time, on October 19, a
substitute teacher reported to another school psychologist,
Edward O'Connor, that E.S. selected troubling words –
including “sleeping bag” and “men” – on an iPad given to
her by the school for communication purposes. Id. at 309
(internal quotation marks omitted). Later that day, O'Connor
questioned E.S. about whom she slept with, prompting E.S.
to select the words “thick more men” and “asleep, no, cover,
teacher.” Id. at 312–13 (internal quotation marks omitted).
Several days later, on the morning of October 27, Fuschetti
was informed both that E.S. had returned home from school
crying and that paraprofessional Kathleen Wheelock had
observed E.S. pressing “man, finger, butt” – albeit as part
of a longer string of “room men room town shopping cart
doghouse watch seatbelt finger man lunch they are going
history thunder man finger butt many tired.” Id. at 328
(internal quotation marks omitted).
While Plaintiffs now posit that E.S. was incapable of
communicating via the iPad, Mr. Stollman himself testified
that he could communicate with E.S. “[t]hrough her
communication device, an iPad,” Dist. Ct. Doc. No. 133-7
at 20, and Tonya Wheelock, E.S.’s one-on-one classroom
paraprofessional, testified that E.S. “used the iPad to express
her needs and her wants,” Dist. Ct. Doc. No. 150-3 at 47. The
School Defendants were not obliged to ignore the possibility
that E.S.’s emotional state and her choice of words on the iPad
were linked. Nor were they required to rule out all possible
alternatives before filing the report. In fact, school officials
have a legal obligation to report concerning activity to ACS.
See N.Y. Soc. Serv. L. § 413(1)(a) (requiring school officials
to file a report “when they have reasonable cause to suspect”
child abuse). Though E.S. pressed the more troubling words
as part of larger sequences, the school observed a pattern that
emerged over the course of about eight days. Both ACS's
written summary of the school's initial call and the school's
follow-up report merely chronicled these observations, and
neither report ever asserted that sexual abuse had occurred,
let alone that Mr. Stollman was suspected of sexual abuse. To
the contrary, the ACS call summary acknowledged that it was
“[u]nknown what specifically [was] occurring and who [was]
responsible.” Dist. Ct. Doc. No. 130-7 at 5.
*3 Keeping in mind that mandatory reporters “deserve
unusual deference from the judiciary,” Cox, 654 F.3d at 274
(internal quotation marks omitted), we agree with the district
court that, on the record before it, no reasonable factfinder
could conclude that the school's report to ACS was adverse
or retaliatory. We therefore affirm the district court's grant of
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summary judgment on Plaintiffs’ First Amendment retaliation
claims.
II. Fourth Amendment Claims Against the ACS
Defendants for Unreasonably Searching E.S.
An inspection of a child's body for evidence of abuse may
implicate the child's Fourth Amendment interests. Tenenbaum
v. Williams, 193 F.3d 581, 605–06 (2d Cir. 1999). Because
parents have “rights to control the care and custody of their
children,” we have held that “intrusive examinations of their
children for evidence of abuse [may] not be undertaken
without parental consent or judicial authorization.” N.G. v.
Connecticut, 382 F.3d 225, 237 (2d Cir. 2004). Plaintiffs
contend that there is a genuine dispute as to whether they
consented to an inspection of E.S. that took place during
a home visit by ACS caseworker Miriam Ortiz-Downes
(“Ortiz”), during which Mr. Stollman lifted E.S.’s dress and
Mrs. Stollman removed E.S.’s diaper.
We agree with the district court that the Stollmans consented
to this examination. Mrs. Stollman admitted at her deposition
that, before inspecting E.S.’s body, Ortiz asked, “Can I just
take a look for any marks or bruises[?],” to which Mrs.
Stollman responded, “Okay.” Dist. Ct. Doc. No. 133-8 at 50.
Mr. Stollman similarly confirmed at his deposition that he
“agree[d] that the body check should be conducted.” Dist. Ct.
Doc. No. 133-7 at 44.
Plaintiffs nevertheless contest the voluntariness of their
consent because Ortiz “announc[ed]” her authority to inspect
E.S. in a manner that effectively communicated that “the
[parents] ha[d] no right to resist.” Bumper v. North Carolina,
391 U.S. 543, 550 (1968). But the record belies that
contention. During his deposition, Mr. Stollman characterized
Ortiz's request as a “suggest[ion] to see [E.S.’s] body,” Dist.
Ct. Doc. No. 133-7 at 42 (emphasis added), and Mrs. Stollman
similarly testified that Ortiz simply asked if she could “just
take a look for any marks or bruises,” Dist. Ct. Doc. No. 133-8
at 50. The more authoritative statements attributed to Ortiz
– such as “I have to look at marks and bruises” and “[i]t's
my job,” id. at 84 – fall short of demonstrating coercion. Cf.
United States v. Ruiz-Estella, 481 F.2d 723, 728 (2d Cir. 1973)
(finding coercion when uniformed officer took defendant to a
secluded stairwell and told him “he would have to go through
a baggage search” (internal quotation marks omitted)); United
States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973) (finding
coercion when officer entered defendant's bedroom with a
gun in hand, announced that she was under arrest, and said
“[w]e want the package” (internal quotation marks omitted)).
In addition, Plaintiffs were present the entire time and even
assisted Ortiz with aspects of the inspection. This is not a
situation where the parents were never consulted or were
kept in the dark while the search was being conducted for
an investigatory purpose. Cf. Van Emrik v. Chemung Cnty.
Dep't of Soc. Servs., 911 F.2d 863, 865 (2d Cir. 1990) (finding
no consent when “parents were not consulted” about x-rays
and “[t]heir understanding was that some additional x-rays
of the [child's] injured leg were [medically necessary]”).
Accordingly, we affirm the grant of summary judgment in
favor of the ACS Defendants on the unreasonable search
claim brought on behalf of E.S.
III. Fourth Amendment Claims Against the ACS
Defendants for Malicious Prosecution.
*4 Plaintiffs next claim that the ACS Defendants’ filing
of an Article 10 petition against Mr. Stollman amounted to
malicious prosecution in violation of his Fourth Amendment
rights. We agree with the district court that, at the very least,
the ACS Defendants were entitled to qualified immunity as
to those claims.
Qualified immunity shields “officials from suit unless [1]
the official violated a statutory or constitutional right that
[2] was clearly established at the time of the challenged
conduct.” Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir.
2014) (internal quotation marks omitted). To prevail on a
malicious-prosecution claim under section 1983, a plaintiff
must establish “(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,”
“(4) actual malice,” and “(5) a sufficient post-arraignment
liberty restraint to implicate the plaintiff's Fourth Amendment
rights.” Alexander v. City of Syracuse, 132 F.4th 129, 158
(2d Cir. 2025) (internal quotation marks omitted). We have
never found that the initiation of a child-removal proceeding
may give rise to a malicious prosecution claim. Cf. id.
(referencing “criminal proceeding[s]”); Manganiello v. City
of New York, 612 F.3d 149, 161 (2d Cir. 2010) (same);
see also Emerson v. City of New York, 740 F. Supp. 2d
385, 392 (S.D.N.Y. 2010) (finding that plaintiff could not
bring malicious-prosecution claim “since he was neither
arrested nor otherwise detained in connection with the neglect
and abuse proceedings”). Given the lack of authority for
such a claim, qualified immunity is appropriate because
Plaintiffs’ “purported [Fourth Amendment] right was not
clearly established by prior case law.” Booker v. Graham,
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974 F.3d 101, 106 (2d Cir. 2020) (internal quotation marks
omitted). Accordingly, the district court properly granted
ACS Defendants qualified immunity on Plaintiffs’ malicious
prosecution claims.
IV. Fourteenth Amendment Due Process Claims Against
the ACS Defendants.
Undoubtedly, “[t]he interest of natural parents in the care,
custody, and management of their child is a fundamental
liberty interest protected by the Fourteenth Amendment.”
Cox, 654 F.3d at 275 (internal quotation marks omitted).
Plaintiffs contend that the removal of Mr. Stollman from his
home and the attendant separation from his minor children
violated Plaintiffs’ rights to substantive and procedural due
process, beginning when Mr. Stollman was asked to leave for
three days before the child-safety conference was held and
continuing until he was allowed to return on February 14,
2018, almost four months later. We disagree.
A. Procedural Due Process.
Because “[p]arents ... have a constitutionally protected liberty
interest in the care, custody[,] and management of their
children,” they generally may not be deprived of that interest
“without ... due process.” Tenenbaum, 193 F.3d at 593.
Plaintiffs contend that their due process rights were violated
when Defendants failed to provide Mr. Stollman with a
hearing prior to his removal from the home. We have held,
however, that “officials may remove a child from his or
her parents’ custody before a hearing is held where there
is an objectively reasonable basis for believing that a threat
to the child's health or safety is imminent.” Gottlieb v.
County of Orange, 84 F.3d 511, 520 (2d Cir. 1996). Given
E.S.’s concerning iPad use, and – more importantly – Ortiz's
personal observations of what she deemed to be inappropriate
contact between Mr. Stollman and E.S, we cannot say that a
pre-deprivation hearing was required here. See Southerland v.
City of New York, 680 F.3d 127, 149 (2d Cir. 2012) (“[T]he
peril of sexual abuse” is an “imminent danger justifying
emergency removal.” (internal quotation marks omitted)). To
the extent Plaintiffs argue the three-day delay between Mr.
Stollman's departure from the home on October 27 and his
post-deprivation hearing on October 30 was unreasonable,
we have concluded that similar delays do not give rise to a
procedural due-process violation. See Cecere v. City of New
York, 967 F.2d 826, 830 (2d Cir. 1992) (determining that four-
day delay did not violate due process clause).
*5 Plaintiffs next argue that they were deprived of
procedural due process because Defendants conducted a
constitutionally inadequate investigation. But given the “need
for unusual deference” to the decisions of state officials
confronted with allegations of child abuse, we have held
that “[a]n investigation passes constitutional muster provided
simply that case workers have a reasonable basis for their
findings of abuse.” Wilkinson ex rel. Wilkinson v. Russell,
182 F.3d 89, 104 (2d Cir. 1999) (internal quotation marks
omitted). Though Plaintiffs criticize several aspects of the
investigation, it cannot be said that ACS lacked a reasonable
basis for its investigation. Indeed, while Plaintiffs hotly
dispute E.S.’s ability to communicate via her iPad (and thus
discount the significance of E.S.’s selection of certain words
that might normally be suggestive of sexual abuse in the
home), the ACS Defendants sent their own caseworker to
visit the home, which “generated significant information
supporting a finding of abuse” after she observed what she
perceived to be inappropriate kissing and touching between
Mr. Stollman and E.S. Id. at 106. Plaintiffs attempt to discredit
Ortiz's observations by insisting that the ACS Defendants
ignored the opinion of a family caregiver, Jackie, and E.S.’s
pediatrician, Dr. Jeffrey Teitelbaum, who opined that Mr.
Stollman had not sexually abused E.S. But these opinions,
even if sincerely held, are not the sort of “overwhelming
exculpatory information” that the ACS Defendants were
bound to credit over the observations of their own case
worker. Id. at 104. Considering our “unusual deference” in
this area, id., we agree with the district court that Plaintiffs
cannot show that the investigation into the suspected abuse
was constitutionally inadequate.
Finally, Plaintiffs assert that the ACS Defendants fabricated
evidence against them in a manner that deprived them of
a fair trial. But even putting aside whether a hearing for
the return of custody pursuant to section 1028 of the New
York Family Court Act qualifies as a “trial” for Fourteenth-
Amendment purposes, Plaintiffs point to no specific examples
of “fabricated” evidence that were produced by the ACS
Defendants, relying instead on Ortiz's deposition testimony
that she “didn't know” whether Mr. Stollman was sexually
abusing E.S. App'x at 383 (internal quotation marks omitted).
But actual knowledge was not required. Ortiz described what
she observed, which provided the basis for the Article 10
petition. While Plaintiffs disagree with Ortiz's conclusions,
they do not allege that she perjured herself or manufactured
false facts in her report. Disagreement alone is not enough for
an unfair trial claim.
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Stollman v. Williams, Not Reported in Fed. Rptr. (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
For all these reasons, Plaintiffs cannot show a procedural
due-process violation at any point from the start of the
investigation to the eventual withdrawal of the Article 10
petition about nine months later on July 17, 2018.
B. Substantive Due Process.
“To state a claim for a violation of th[e] substantive
due process right of [parental] custody, a plaintiff must
demonstrate that the state action depriving him of custody
was so shocking, arbitrary, and egregious that the Due
Process Clause would not countenance it even if it were
accompanied by full procedural protection.” Cox, 654 F.3d at
275 (internal quotation marks omitted). Here, Mr. Stollman
was separated from his family for three days before a child-
safety conference was convened and a family-court judge
approved the temporary deprivation of custody (which Mr.
Stollman himself consented to through counsel). Such “brief
removals ... generally do not rise to the level of a substantive
due process violation, at least where the purpose of the
removal is to keep the child safe during investigation and
court confirmation of the basis for removal.” Southerland,
680 F.3d at 153 (internal quotation marks omitted) (finding
no violation for four-day separation prior to child-safety
conference). While Plaintiffs strenuously disagree with ACS's
determination that separation was appropriate, they do not
argue that ACS made its decision arbitrarily or was motivated
by some improper purpose.
To the extent that Mr. Stollman is asserting a due-process
violation for the period of separation that occurred after
the child-safety conference, the fact that the family court
approved the three-day removal, coupled with the fact that
Mr. Stollman consented to the ongoing separation, means that
“any liability” related to the continued separation “can no
longer be attributed to the [Defendants] who removed the
child.” Id. This is particularly so when the family court was
not misled by fabricated evidence. Similarly, while Plaintiffs
assert that the ongoing home visits by ACS after Mr. Stollman
returned to the home amounted to coercive interference, those
visits were also approved by the family court. In any event,
“[w]here there is no actual loss of custody, no substantive
due process claim can lie.” Cox, 654 F.3d at 276. As a result,
Plaintiffs cannot show a substantive due-process violation. 2
*6 * * *
We have considered Plaintiffs’ remaining arguments and find
them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
All Citations
Not Reported in Fed. Rptr., 2025 WL 2784215
Footnotes
* The Clerk of Court is respectfully directed to amend the case caption as set forth above.
1 Plaintiffs also appeal from the district court's order entered on September 30, 2024 denying their motion
to alter the judgment. Because Plaintiffs do not advance any arguments apart from those challenging the
grant of summary judgment itself, we consider any separate challenge to that September 30, 2024 order
abandoned. See Anderson v. Branen, 27 F.3d 29, 30 (2d Cir. 1994).
2 Because the district court properly denied Plaintiffs’ claims against the individual defendants, Plaintiffs may
not prevail on their municipal-liability claims under Monell v. New York City Department of Social Services,
436 U.S. 658 (1978). See Barrett v. Orange Cnty. Hum. Rights Comm'n, 194 F.3d 341, 350 (2d Cir. 1999).
In addition, because Plaintiffs do not challenge the district court's decision not to exercise supplemental
jurisdiction over their state-law claims, we affirm the dismissal of those claims without prejudice to refiling
in state court.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Turczyn ex rel. McGregor v. City of Utica, Not Reported in F.Supp.3d (2014)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 6685476
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Kylie Ann TURCZYN, Deceased, by and through
Barbara McGREGOR, as Administratrix of
the Estate of Kylie Ann Turczyn, Plaintiff,
v.
CITY OF UTICA et al., Defendants.
No. 6:13–cv–1357 (GLS/ATB).
|
Signed Nov. 26, 2014.
Attorneys and Law Firms
Office of Frank Policelli, Frank Policelli, Esq., of Counsel,
Utica, NY, for the Plaintiff.
City of Utica—Corporation Counsel, Mark C. Curley, Esq.,
Merima Smajic, Esq., Zachary C. Oren, Esq., of Counsel,
Utica, NY, for the Defendants.
MEMORANDUM–DECISION AND ORDER
GARY L. SHARPE, Chief Judge.
I. Introduction
*1 Plaintiff Kylie Ann Turczyn, deceased, by and through
Barbara McGregor, as administratrix of the estate of Kylie
Ann Turczyn, commenced this action against defendants City
of Utica, City of Utica Police Dept., and Elizabeth Shanley
alleging substantive due process claims pursuant to 42 U.S.C.
§ 1983 and separate state law causes of action. (Am.Compl.,
Dkt. No. 12.) Pending is defendants' motion to dismiss for
failure to state a claim. (Dkt. No. 19.) For the reasons that
follow, the motion is granted in part and denied in part.
II. Background
A. Facts 1
Shanley, an Oneida County domestic violence investigator,
was at all relevant times assigned by the Police Department to
accomplish the goals of reducing “occurrence[s] of domestic
violence by increasing reporting and by identifying and
tracking repeat victims and/or offenders,” and “increas[ing]
victims' access to supportive services by encouraging [them]
to report their abuse, thereby increasing arrest rates for
domestic offenders.” (Am.Compl.¶ 10.) On June 22, 2012,
Thomas Anderson, Turczyn's former boyfriend and the father
of her daughter, broke into Turczyn's home armed with a 9
mm rifle. (Id. ¶ 11) Anderson repeatedly shot Turczyn, taking
her life in view of their four-year-old daughter, G.T. (Id.)
Anderson then dispatched himself. (Id.)
In the twelve months preceding this horrific event, Turczyn
made between five and ten complaints to Utica police
officers, “including informing them of a specific threat by
Anderson to kill her.” (Id. ¶ 12.) Turczyn specifically told
Shanley “that Anderson was armed and had threatened to
kill her.” (Id. ¶ 12(d).) Despite their knowledge of domestic
violence between Turczyn and Anderson, neither Shanley,
New York State Police, nor Utica Police took any steps to
arrest Anderson, investigate Turczyn's complaints, or follow-
up with Anderson “as is the policy and protocol of the
domestic violence unit.” (Id. ¶ 14.)
On June 18, 2012, Shanley told Turczyn to seek an order of
protection, which she attempted to do, but was told by an
unknown person at the Oneida County Family Court to return
the following day because the court was “ ‘too busy.’ “ (Id.
¶¶ 15–16.) The following day, Turczyn left a voice message
for Shanley, explaining that she was unable to obtain an order
of protection and that Anderson had a gun and planned to
kill her that week. (Id. ¶¶ 16–18.) Despite her knowledge,
“Shanley took no action.” (Id. ¶ 17.) Shanley also mistakenly
believed that Turczyn's issues with Anderson were outside of
the purview of Utica Police and should, instead, be dealt with
by New York State Police; however, “she did not inform any
other police agency or take any action herself.” (Id. ¶¶ 18, 19,
20.)
B. Procedural History
Turczyn commenced this action by filing a complaint on
October 31, 2013. (Dkt. No. 1.) Defendants thereafter moved
to dismiss, (Dkt. No. 10.) In response, Turczyn filed an
amended complaint as of right, which is now the operative
pleading. (See generally Am. Compl.) In her amended
complaint, Turczyn alleges the following causes of action:
(1) a denial of substantive due process rights under the Fifth
and Fourteenth Amendments due to deliberate indifference;
(2) a Monell 2 claim against the City; (3) negligence; (4)
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a “derivative action” on behalf of G.T.; and (5) negligent
infliction of emotional distress. (Id. ¶¶ 37–74.) Defendants
now move to dismiss the amended pleading pursuant to Rules
8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure.
(Dkt. No. 19.)
III. Standard of Review
*2 The standard of review under Fed.R.Civ.P. 12(b)(6) is
well settled and will not be repeated here. For a full discussion
of the standard, the court refers the parties to its prior decision
in Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d 215, 218
(N.D.N.Y.2010).
IV. Discussion
A. Preliminary Matters
At the outset, it is noted that some of Turczyn's claims
are deemed abandoned by her failure to oppose their
dismissal. See Barmore v. Aidala, 419 F.Supp.2d 193, 201–
02 (N.D.N.Y.2005) (“The failure to oppose a motion to
dismiss a claim is deemed abandonment of the claim,
and, in the Northern District of New York, is deemed
consent to granting that portion of the motion.” (internal
citations omitted)); Hanig v. Yorktown Cent. Sch. Dist.,
384 F.Supp.2d 710, 723 (S.D.N.Y.2005) (“[B]ecause [the]
plaintiff did not address [the] defendant's motion to dismiss
with regard to [a particular] claim, it [wa]s deemed abandoned
and ... dismissed.”). In particular, Turczyn squarely opposed
dismissal of her substantive due process claim as against
Shanley, (Dkt. No. 20 at 8–12), and scarcely, but sufficiently
to save the claim from dismissal for abandonment, offered
reasons why her substantive due process claim as against the
City should survive defendants' motion, (id. at 5–7). Aside
from the substantive due process claim, Turczyn failed to
offer any opposition to defendants' motion, which also sought
dismissal of her pendant causes of action. (Dkt. No. 19,
Attach. 6 at 31–40 & n. 15.) Accordingly, Turczyn's pendant
state law claims, (Am.Compl.¶¶ 59–74), are dismissed.
Additionally, it is clear that the Police Department must be
dismissed as urged by defendants, (Dkt. No. 19, Attach. 6
at 2 n. 2), because “a department of a municipal entity is
merely a subdivision of the municipality and has no separate
legal existence.” Varela v. City of Troy, No. 1:10–cv–1390,
2014 WL 2176148, at *6 (N.D.N.Y. May 22, 2014) (internal
quotation marks omitted). As such, all claims as against the
Police Department are dismissed.
The court also notes that both parties have submitted certain
evidence that is outside of the pleadings (Dkt. No. 19,
Attachs. 3, 4; Dkt. No. 20, Attachs. 1, 2.) Beginning with
defendants, they submitted a January 2, 2013 stipulation of
discontinuance, which, on its face, purports to memorialize
McGregor's agreement to withdraw the notice of claim filed
on behalf of Turczyn and to discontinue with prejudice,
(Dkt. No. 19, Attach.3), and a December 28, 2012 letter,
which appears to memorialize a conversation regarding the
discontinuation of legal action and execution of a stipulation,
(Dkt. No. 19, Attach.4). Relying on a single out-of-Circuit
decision, see Raines v. Haverford Coll., 849 F.Supp. 1009,
1010 (E.D.Pa.1994), which does not appear directly to
support their position nor does it give this court confidence
that the kinds of documents at issue here were contemplated
by that decision, defendants assert that the documents may be
considered on their motion to dismiss as “part of the record of
this case.” (Dkt. No. 19, Attach. 6 at 25 n. 11.) Turczyn argues
that defendants' reliance on the stipulation is inappropriate
at this juncture, yet she offers the affidavit of McGregor,
submitted to dispute the validity of the stipulation, (Dkt. No.
20, Attach.1), without any explanation as to why the court
should or may consider it. (Dkt. No. 20 at 12–13.)
*3 The court has excluded from its consideration of this
motion to dismiss the exhibits offered by defendants as
well as the McGregor affidavit. See Fed.R.Civ.P. 12(d).
The existence of some document or documents that may
extinguish a plaintiff's claims, such as a release or stipulation
of discontinuance, is an affirmative defense, see Beede v.
Stiefel Labs., Inc., No. 1:13–cv–120, 2014 WL 896725, at *3
(N.D.N.Y. Mar.6, 2014), and “ ‘[a]n affirmative defense may
be raised by a pre-answer motion to dismiss under Rule 12(b)
(6) ... if the defense appears on the face of the complaint,’ “
Iowa Pub. Emps.' Ret. Sys. v. MF Global, Ltd., 620 F.3d 137,
145 (2d Cir.2010) (quoting Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 74 (2d Cir.1998)).
Here, the stipulation defense is not apparent from the face
of the amended complaint. Moreover, the court refuses to
consider the documents in question as part of the record of
this case, a proposition for which no in-Circuit authority has
been offered nor has any been discovered by this court. As
such, the documents offered by defendants, (Dkt. No. 19,
Attachs.3, 4), are not properly before the court, and their
argument that Turczyn's claims must be dismissed because of
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© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
those documents is rejected. McGregor's affidavit, (Dkt. No.
20, Attach.1), which was also improvidently submitted for
consideration, is likewise excluded. The court now turns to
the merits of defendants' arguments regarding the substantive
due process and Monell claims.
B. Rule 8
First, defendants argue that Turczyn's § 1983 due process
claim is subject to dismissal under the Rule 8 plausibility
analysis—specifically because of Turczyn's failure to allege
facts supportive of a sufficient nexus between Shanley's
omissions and Turczyn's death. (Dkt. No. 19, Attach. 6
at 23–24.) The court disagrees. The amended complaint
plausibly alleges a causal connection between the conduct
of defendants—their alleged conscience-shocking failure to
protect Turczyn, (Am.Compl.¶ 49)—and her injuries, i.e.,
the allegations plausibly suggest that defendants' acts were
a substantial factor in bringing about Turczyn's injuries. See
Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir.1998) (“[I]n
all § 1983 cases[ ] the plaintiff must prove that the defendant's
action was a proximate cause of the plaintiff's injury.”).
Accordingly, this argument is rejected.
C. Rule 12(b)(6)
Defendants argue that Turczyn has failed to state a substantive
due process claim as against Shanley or the City. (Dkt. No.
19, Attach. 6 at 220, 26–31.) Defendants contend that Turczyn
alleges only passive conduct on the part of Shanley that does
not give rise to a substantive due process violation. (Id. at 10–
12.) More generally, defendants assert that Turczyn has failed
to plead facts to show “implicit prior assurances through
repeated sustained inaction,” and that, even if she did, the
state action alleged does not rise to the level of conscience-
shocking behavior. (Id. at 15–20.) Alternatively, defendants
argue that Shanley is entitled to qualified immunity. (Id. at
20–23.) With respect to the City, defendants contend that
Turczyn has failed to allege facts that support a claim of
municipal liability. (Id. at 26–31.) For reasons explained
below, defendants' motion is denied with respect to Turczyn's
substantive due process claim against Shanley, but granted
with respect to her Monell claim against the City.
*4 Only one relevant exception to the general rule that
no substantive due process claim lies for a state's failure to
protect an individual from private violence, see DeShaney v.
Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197,
109 S.Ct. 998, 103 L.Ed.2d 249 (1989), potentially applies
in this case. That exception imposes liability for failure to
protect where state actors in some way affirmatively assist
“in creating or increasing the danger to the victim.” Okin v.
Vill. of Cornwall–On–Hudson Police Dep't, 577 F.3d 415, 428
(2d Cir.2009) (internal quotation marks and citation omitted);
see Pena v. DePrisco, 432 F.3d 98, 110 (2d Cir.2005).
“[R]epeated, sustained inaction by government officials, in
the face of potential acts of violence, might constitute ‘prior
assurances,’ rising to the level of an affirmative condoning
of private violence, even if there is no explicit approval or
encouragement.” Okin, 577 F.3d at 428 (quoting Dwares
v. City of N.Y., 985 F.2d 94, 99 (2d Cir.1993)). Moreover,
when “state officials communicate to a private person that
he ... will not be arrested, punished, or otherwise interfered
with while engaging in misconduct that is likely to endanger
the life, liberty or property of others, those officials can
be held liable under section 1983 for injury caused by the
misconduct” “even though none of the defendants [is] alleged
to have communicated the approval explicitly.” Id. at 428–
29 (quoting Pena, 432 F.3d at 111)). In a nutshell, “[t]he
affirmative conduct of a government official may give rise
to an actionable due process violation if it communicates,
explicitly or implicitly, official sanction of private violence.”
Id. at 429.
A successful substantive due process claim also requires that
the plaintiff show “that the state action was ‘so egregious,
so outrageous, that it may fairly be said to shock the
contemporary conscience.’ “ Id. at 431 (quoting Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708,
140 L.Ed.2d 1043 (1998). A hierarchy of intent provides
guidance on the likelihood that a particular harm rises to the
necessary level. Intentionally inflicted harms are most likely
to meet the standard, while reckless and negligent inflictions
of harm are each less likely, in graduated downward steps, to
show conscience-shocking state action. Id. As for recklessly
inflicted injuries, “ ‘[d]eliberate indifference that shocks in
one environment may not be so patently egregious in another.’
“ Id. (quoting Lewis, 523 U.S. at 850). Accordingly, the
inquiry is highly fact specific.
Unlike Town of Castle Rock v. Gonzales, 545 U.S. 748,
125 S.Ct. 2796, 162 L.Ed.2d 658 (2005), or Neal v. Lee
County, Civil Action No. 1:08CV262, 2010 WL 582437
(N.D.Miss. Feb.12, 2010)—cases in which police had limited
interaction with either the victim or killer prior to the
victim's demise, and upon which defendants rely for dismissal
of the claim against Shanley, (Dkt. No. 19, Attach. 6 at
3–5, 7–8)—the allegations here go substantially farther.
Turczyn alleges several occasions 3 when Shanley knew of
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Turczyn ex rel. McGregor v. City of Utica, Not Reported in F.Supp.3d (2014)
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Anderson's threatening acts and did nothing, which arguably
communicated to him prior assurances that there would be
no penalty to pay for his conduct. (Am.Compl.¶¶ 12–13.)
“This is so even though none of the defendants are alleged
to have communicated the approval explicitly.” Pena, 432
F.3d at 111. Okin has specifically recognized the liability
that may arise under these circumstances. See 577 F.3d at
428–29 (explaining that liability under § 1983 attaches when
“state officials communicate to a private person that he ... will
not be arrested, punished, or otherwise interfered with while
engaging in misconduct that is likely to endanger the life,
liberty or property of others” (quoting Pena, 432 F.3d at 111)).
*5 The amended complaint also pleads facts that
demonstrate, at this juncture, egregious behavior that shocks
the contemporary conscience. As in Okin, the allegations
here tend to show that Shanley, who was tasked with
accomplishing certain goals related to curbing domestic
violence, was deliberately indifferent as to whether or not
Anderson would make good on his multiple threats against
Turczyn's life over a twelve-month-period. (Am.Compl.¶ ¶
10, 12.) These allegations sufficiently support that Shanley's
affirmative conduct was the product of deliberate indifference
that shocks the conscience, and would provide a reasonable
jury with a valid basis to so find. See Conradt v. NBC
Universal, Inc., 536 F.Supp.2d 380, 394–95 (S.D.N.Y.2008).
Finally, Shanley is not entitled to qualified immunity at
this juncture. Her argument on this issue is two-fold. First,
Shanley asserts that no constitutional violation occurred, and,
second, she claims that, even if a constitutional violation
occurred, the right was not clearly established. (Dkt. No.
19, Attach. 6 at 20–23.) The first prong of the argument is
easily swept aside by reference to the preceding paragraphs
that explain that the amended complaint alleges a cognizable
substantive due process violation. As for whether or not
the right was clearly established, which is a prerequisite
to qualified immunity, see Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), this
question has been resolved by the Second Circuit. On the
issue, the court has explained that it is “clearly established,”
under the state-created danger theory, “that police officers are
prohibited from affirmatively contributing to the vulnerability
of a known victim by engaging in conduct, whether explicit
or implicit, that encourages intentional violence against the
victim, and as that is the substantive due process violation
alleged here, qualified immunity does not apply.” Okin, 577
F.3d at 434. Accordingly, Shanley is not entitled to qualified
immunity at this time.
As for the City, defendants assert that Turczyn has failed to
plead a Monell claim because the amended complaint merely
alleges legal conclusions. (Dkt. No. 19, Attach. 6 at 26–31.)
With respect to Turczyn's allegation that the City failed to
properly train or supervise its employees, defendants contend
that the amended complaint is too conclusory, but that, even
if adequately pleaded, Turczyn's municipal liability claim
must nonetheless fail because she has not alleged deliberate
indifference. (Id. at 29–31.)
It is well settled that “the inadequacy of police training may
serve as the basis for § 1983 liability ... where the failure
to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” City of
Canton, Oh. v. Harris, 489 U.S. 378, 380, 388, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989). The deliberate indifference
standard is “stringent” and requires “proof that a municipal
actor disregarded a known or obvious consequence of his
action.” Connick v. Thompson, –––U.S. ––––, ––––, 131 S.Ct.
1350, 1360, 179 L.Ed.2d 417 (2011) (internal quotation marks
and citation omitted). A showing of deliberate indifference
requires that: (1) “a policymaker knows ‘to a moral certainty’
that her employees will confront a given situation”; (2) “the
situation either presents the employee with a difficult choice
of the sort that training or supervision will make less difficult
or that there is a history of employees mishandling the
situation”; and (3) “the wrong choice by the ... employee will
frequently cause the deprivation of a citizen's constitutional
rights.” Walker v. City of N.Y., 974 F.2d 293, 297–98 (2d
Cir.1992) (quoting City of Canton, 489 U.S. at 390 n. 10).
*6 Here, because Turczyn has failed to adequately plead that
the City's failure to train and supervise amounted to deliberate
indifference, she has failed to state a claim of municipal
liability. The amended complaint uses the label “deliberate
indifference” in reference to Turczyn's municipal liability
claim and generically references the City's failure to properly
train and supervise, but it fails to allege facts that support
either conclusory notion. (Am.Compl.¶¶ 45, 52.) Turczyn's
pleading failure mandates dismissal of her Monell claim
against the City. See Gauthier v. Kirkpatrick, Civil Action No.
2:13–cv–187, 2013 WL 6407716, at *10 (D.Vt. Dec.9, 2013)
(dismissing failure to train Monell claim because the plaintiff
failed to plead facts that supported the deliberate difference
elements); Santos v. New York City, 847 F.Supp.2d 573, 577
(S.D.N.Y.2012); see also Worrell v. City of N.Y ., No. 12–CV–
6151, 2014 WL 1224257, at *13 (E.D.N.Y. Mar. 24, 2014).
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V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants' motion to dismiss (Dkt. No. 19)
is GRANTED IN PART and DENIED IN PART as follows:
GRANTED with respect to all claims alleged as against
the City of Utica Police Dept. and the Clerk is directed to
terminate the City of Utica Police Dept. from this action; and
GRANTED with respect to Turczyn's Monell claim
against the City (Am.Compl.¶ ¶ 51–58), which is hereby
DISMISSED WITHOUT PREJUDICE, and the Clerk is
directed to terminate the City of Utica from this action; and
GRANTED with respect to all of Turczyn's pendant state
law claims, (Am.Compl.¶ ¶ 59–74), which are hereby
DISMISSED; and DENIED in all other respects; and it is
further
ORDERED that the sole remaining defendant, Shanley,
shall file an appropriate responsive pleading within the time
allotted by the rules; and it is further
ORDERED that the parties shall contact Magistrate Judge
Andrew T. Baxter in order to schedule further proceedings;
and it is further
ORDERED that the Clerk provide a copy of this
Memorandum–Decision and Order to the parties.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 6685476
Footnotes
1 The facts are presented in the light most favorable to plaintiff.
2 See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
3 In fact, Turczyn claims that she lodged five to ten complaints—of which Shanley was aware—with the Utica
Police within the twelve months preceding the murder. (Am.Compl.¶¶ 12, 13.) So many occurrences may
amount to “repeated [and] sustained inaction ... in the face of potential acts of violence.” Okin, 577 F.3d at 428.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 981850
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jeramie WHITE, Plaintiff,
v.
SYRACUSE POLICE
DEPARTMENT, et al., Defendants.
Civil Action No. 5:18-CV-1471 (GTS/DEP)
|
Signed 01/07/2019
Attorneys and Law Firms
FOR PLAINTIFF: Jeramie White, Pro se, 18-B-0311, Cayuga
Correctional Facility, P.O. Box 1186, Moravia, NY 13118.
ORDER, REPORT, AND RECOMMENDATION
DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE
*1 This is a civil rights action brought by pro se plaintiff
Jeramie White, a New York State prison inmate, pursuant to
42 U.S.C. § 1983, against the Syracuse Police Department
(“SPD”) and five of its officers. In his complaint, plaintiff
alleges that defendants violated his constitutional rights
during the course of his arrest on February 13, 2017. Plaintiff's
complaint and accompanying application for leave to proceed
in forma pauperis (“IFP”) have been referred to me for
review. Based upon my consideration of those materials, I will
(1) grant plaintiff's amended IFP application, (2) recommend
dismissal of his claim against the SPD with leave to replead,
and (3) recommend that his complaint otherwise be accepted
for filing.
I. BACKGROUND
Plaintiff commenced this action on or about December 20,
2018. Dkt. No. 1. According to plaintiff, he and two friends
were on their way to play indoor basketball when their vehicle
was pulled over for a traffic infraction. Id. at 4; Dkt. No. 1-1 at
4. Plaintiff alleges that after the stop, defendant William Kittle
forcibly removed White from the vehicle and that Kittle, in
addition to defendants Abraham Mamoun and Shawn Hauck,
proceeded to use excessive force against him during the
course of his arrest. Dkt. No. 1 at 4-5, 6-7; see also Dkt. No.
1-1 at 4, 8. Plaintiff further alleges that defendants Altimonda
and Fiorini were present and had an obligation to intervene
and prevent the unlawful use of force, but failed to do so. Id.
at 5, 7.
Plaintiff was ultimately arrested and charged with resisting
arrest, in violation of N.Y. Penal Law § 205.30, and
second-degree obstruction of governmental administration, in
violation of N.Y. Penal Law § 195.05. Dkt. No. 1-1 at 4. As
relief, plaintiff seeks compensatory and punitive damages in
the amount of $1,000,000. Dkt. No. 1 at 8.
A. Plaintiff's Amended IFP Application 1
When a civil action is commenced in a federal district court,
the statutory filing fee, currently set at $400, must ordinarily
be paid. 28 U.S.C. § 1914(a). A court is authorized, however,
to permit a litigant to proceed IFP if it determines that he
is unable to pay the required filing fee. 28 U.S.C. § 1915(a)
(1). 2 Because I conclude that plaintiff meets the requirements
for IFP status, his amended application for leave to proceed
without prepayment of fees is granted. 3
B. Sufficiency of Plaintiff's Complaint
1. Governing Legal Standard
*2 Because I have found that plaintiff meets the financial
criteria for commencing this case IFP, I must next consider
the sufficiency of the claims set forth in his complaint in light
of 28 U.S.C. § 1915(e). Section 1915(e) directs that, when
a plaintiff seeks to proceed IFP, “the court shall dismiss the
case at any time if the court determines that ... the action ...
(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). Similarly, 28 U.S.C. § 1915A(b)
directs a court to review any “complaint in a civil action in
which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity,” and to
“identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint ... is frivolous,
malicious, or fails to state a claim upon which relief may be
granted; or ... seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A(b); see also
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (“We have
found both sections [1915 and 1915A] applicable to prisoner
proceedings in forma pauperis.”).
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In deciding whether a complaint states a colorable claim, a
court must extend a certain measure of deference in favor
of pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d
Cir. 1990) (per curiam), and caution should be exercised in
ordering sua sponte dismissal of a pro se complaint before
the adverse party has been served and the parties have
had an opportunity to address the sufficiency of plaintiff's
allegations, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.
1983). The court, however, also has an overarching obligation
to determine that a claim is not legally frivolous before
permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
362, 363 (2d Cir. 2000) (holding that a district court may
sua sponte dismiss a frivolous complaint, notwithstanding
the fact that the plaintiff paid the statutory filing fee).
“Legal frivolity ... occurs where ‘the claim is based on an
indisputably meritless legal theory [such as] when either the
claim lacks an arguable basis in law, or a dispositive defense
clearly exists on the face of the complaint.’ ” Aguilar v.
United States, Nos. 99-MC-0304, 99-MC-0408, 1999 WL
1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston
v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998) ); see also Neitzke v. Williams, 490 U.S. 319, 325
(1989) (“[D]ismissal is proper only if the legal theory ... or
factual contentions lack an arguable basis.”); Pino v. Ryan, 49
F.3d. 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint
is based on an indisputably meritless legal theory, for the
purposes of dismissal under section 1915(d), may be based
upon a defense that appears on the face of the complaint.”).
When reviewing a complaint under section 1915(e), the
court is guided by the Federal Rules of Civil Procedure.
Specifically, Rule 8 provides that a pleading must contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of
Rule 8 “is to give fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a responsive
answer, prepare an adequate defense and determine whether
the doctrine of res judicata is applicable.” Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy,
J.) (quotation marks and italics omitted).
A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Although the court should construe the factual
allegations of a complaint in a light most favorable to the
plaintiff, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly,
550 U.S. at 555). Thus, “where the well-pleaded facts do
not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged–but it has not
‘show[n]’–‘that the pleader is entitled to relief.’ ” Id. at 679
(quoting Fed. R. Civ. P. 8(a)(2) ).
2. Analysis of Plaintiff's Claims
*3 Although a municipality is subject to suit pursuant to
section 1983, see Monell v. Dept. of Soc. Servs., 436 U.S.
658, 690 (1978), a municipal police department does not
have the capacity to be sued as an entity separate from
the municipality in which it is located. See Krug v. Cnty.
of Rennselaer, 559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008)
(citing Orraca v. City of N.Y., 879 F. Supp. 148 (S.D.N.Y.
1995) ); Turczyn ex rel. McGregor v. City of Utica, No. 13-
CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014)
(Sharpe, J.); see also Hoisington v. Cnty. of Sullivan, 55 F.
Supp. 2d 212, 214 (S.D.N.Y. 1999) (“Under New York law, a
department of a municipal entity is merely a subdivision of the
municipality and has no separate legal existence. Therefore,
municipal departments like the Department of Social Services
are not amenable to suit and no claims lie directly against
the Department.”). Although I would ordinarily recommend
that, for the sake of judicial efficiency, the court substitute
the City of Syracuse in place of the SPD, plaintiff's complaint
contains no factual allegations that would support a Monell
claim against the City of Syracuse. Accordingly, I recommend
dismissal of plaintiff's claims asserted against the SPD.
With respect to his remaining claims, although plaintiff makes
passing reference to his rights arising under the Eighth and
Fourth Amendments, see Dkt. No. 1 at 6, it is clear from the
factual allegations that he is asserting claims for excessive
force and the failure to intervene arising under the Fourth
Amendment. See generally Dkt. No. 1; see also Edrei v.
Maguire, 892 F.3d 525, 533 (2d Cir. 2018) (“Arrestees
may invoke the Fourth Amendment's prohibition against
‘unreasonable’ seizures.”). In light of the court's obligation
to liberally construe a pro se litigant's pleadings, I find that
plaintiff's complaint should be accepted for filing and the
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individual officer defendants should be required to respond in
accordance with the local rules of practice for this court and
the Federal Rules of Civil Procedure. 4
C. Whether to Permit Amendment
Ordinarily, a court should not dismiss a complaint filed by a
pro se litigant without granting leave to amend at least once
“when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Branum v. Clark, 927
F.2d 698, 704-05 (2d Cir. 1991); see also Fed. R. Civ. P.
15(a) (“The court should freely give leave when justice so
requires.”); see also Mathon v. Marine Midland Bank, N.A.,
875 F. Supp. 986, 1003 (E.D.N.Y. 1995) (permitting leave to
replead where court could “not determine that the plaintiffs
would not, under any circumstances, be able to allege a civil
RICO conspiracy”). An opportunity to amend is not required,
however, where “the problem with [the plaintiff's] causes of
action is substantive” such that “better pleading will not cure
it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see
also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48
(2d Cir. 1991) (“Of course, where a plaintiff is unable to allege
any fact sufficient to support its claim, a complaint should
be dismissed with prejudice.”). Stated differently, “[w]here
it appears that granting leave to amend is unlikely to be
productive, ... it is not an abuse of discretion to deny leave to
amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d
Cir. 1993); accord, Brown v. Peters, No. 95-CV-1641, 1997
WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
In this case, while I recommend dismissal of plaintiff's
claim against the SPD, plaintiff could potentially amend his
complaint to assert a cognizable cause of action against a
defendant, such as the City of Syracuse, which is amenable to
suit. Accordingly, I recommend that plaintiff be granted leave
to amend his complaint. If plaintiff chooses to file an amended
complaint, he must clearly and concisely set forth the facts
that give rise to the claims, including the dates, times, and
places of the alleged underlying acts, and each individual who
committed each alleged wrongful act. In addition, plaintiff
is informed that any such amended complaint will replace
the existing complaint, and must be a wholly integrated and
complete pleading that does not rely upon or incorporate by
reference any pleading or document previously filed with the
court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124,
1128 (2d Cir. 1994) (“It is well established that an amended
complaint ordinarily supersedes the original, and renders it of
no legal effect.” (internal quotation marks omitted) ).
II. SUMMARY, ORDER, AND RECOMMENDATION
*4 Having reviewed plaintiff's amended application for
leave to proceed in this action IFP, I conclude that he has
met the applicable requirements for leave to proceed without
prepayment of fees, and will therefore grant his application.
Turning to the merits of his complaint, to the extent that
it names five police officers and alleges a violation of 42
U.S.C. § 1983, I conclude that those claims are not subject to
dismissal at this procedural juncture. I recommend a finding,
however, that plaintiff's claim against the SPD is legally
deficient and subject to dismissal, but that plaintiff should be
afforded an opportunity to amend with respect to that claim.
Accordingly, it is hereby
ORDERED that plaintiff's amended application for leave to
proceed in this action without prepayment of fees (Dkt. No.
6) is GRANTED; and it is further
ORDERED that plaintiff's original application for leave to
proceed in this action without prepayment of fees (Dkt. No.
2) is DENIED as moot; and it is further
RECOMMENDED that plaintiff's complaint (Dkt. No. 1)
be accepted for filing with respect to plaintiff's Fourth
Amendment cause of action against defendants Mamoun,
Kittle, Hauck, Altimonda, and Fiorini; and it is further
RECOMMENDED that plaintiff's remaining cause of action
against the Syracuse Police Department be otherwise
DISMISSED with leave to replead within thirty days of the
issuance of an order adopting this recommendation; and it is
further
RECOMMENDED that, in the event plaintiff does not choose
to file an amended complaint and the above recommendations
are adopted, the case should move forward with respect
to plaintiff's Fourth Amendment cause of action against
defendants Mamoun, Kittle, Hauck, Altimonda, and Fiorini.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
may lodge written objections to the foregoing report. Such
objections must be filed with the clerk of the court within
FOURTEEN days of service of this report. 5 FAILURE
TO SO OBJECT TO THIS REPORT WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
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All Citations
Not Reported in Fed. Supp., 2019 WL 981850
Footnotes
1 Plaintiff filed both an original and amended motion to proceed in this action IFP. Dkt. Nos. 2, 6. While the two
motions contain slightly different information concerning plaintiff's financial status, only the amended motion
contains the required certification from an official at the correctional facility in which plaintiff is confined.
Compare Dkt. No. 3 with Dkt. No. 7. Accordingly, plaintiff's original IFP application is denied as incomplete.
2 The total cost for filing a civil action in this court is $400.00, consisting of the civil filing fee of $350.00, see 28
U.S.C. § 1914(a), and an administrative fee of $50.00. Although an inmate granted IFP status is not required
to pay the $50.00 administrative fee, he is required to pay, over time, the full amount of the $350.00 filing fee
regardless of the outcome of the action. See 28 U.S.C. § 1915(b)(3).
3 Plaintiff is reminded that, although his IFP application has been granted, he will still be required to pay fees
that he incurs in this action, including copying and/or witness fees.
4 The court expresses no opinion concerning whether plaintiff's claims can survive a properly filed motion to
dismiss or motion for summary judgment, or whether he may prevail at trial.
5 If you are proceeding pro se and are served with this report, recommendation, and order by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P.
6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P.
6(a)(1)(C).
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 974824
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jeramie WHITE, Plaintiff,
v.
SYRACUSE POLICE DEPARTMENT; Abraham
Mamoun, Syracuse Police Dept.; William Kittle,
Syracuse Police Dept.; Shawn Hauck, Syracuse
Police Dept.; Altimonda, Syracuse Police Dept.;
and Fiorini, Syracuse Police Dept., Defendants.
5:18-CV-1471 (GTS/DEP)
|
Signed 02/28/2019
Attorneys and Law Firms
JERAMIE WHITE, 18-B-0311, Plaintiff, Pro Se, Cayuga
Correctional Facility, P.O. Box 1186, Moravia, New York
13118.
DECISION and ORDER
Hon. Glenn T. Suddaby, Chief U.S. District Judge
*1 Currently before the Court, in this pro se civil rights
action filed by Jeramie White (“Plaintiff”) against the
Syracuse Police Department and five of its employees
(“Defendants”), is United States Magistrate Judge David
E. Peebles' Report-Recommendation recommending that (1)
Plaintiff’s Complaint be accepted for filing by the Court
with respect to Plaintiff’s Fourth Amendment cause of action
against Defendants Mamoun, Kittle, Hauck, Altimonda and
Fiorini, and (2) Plaintiff’s remaining cause of action against
the Syracuse Police Department be dismissed with leave to
replead within thirty days of the issuance of an Order adopting
the Report-Recommendation. (Dkt. No. 9.) Plaintiff did not
submit an objection to the Report-Recommendation, and the
deadline by which to do so has expired. (See generally Docket
Sheet.) 1
Based upon a review of this matter, the Court can find
no clear error in the Report-Recommendation: 2 Magistrate
Judge Peebles employed the proper standards, accurately
recited the facts, and reasonably applied the law to those
facts. As a result, the Court accepts and adopts the Report-
Recommendation for the reasons stated therein; Plaintiff’s
Complaint is accepted for filing with respect to his Fourth
Amendment cause of action against Defendants Mamoun,
Kittle, Hauck, Altimonda and Fiorini; and Plaintiff’s
remaining cause of action against the Syracuse Police
Department is dismissed with leave to replead within thirty
days of the issuance of this Decision and Order.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles' Report-
Recommendation (Dkt. No. 9) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint is accepted for filing
with respect to Plaintiff’s Fourth Amendment cause of action
against Defendants Mamoun, Kittle, Hauck, Altimonda and
Fiorini; and it is further
*2 ORDERED that Plaintiff’s remaining cause of action
against the Syracuse Police Department is DISMISSED with
leave to replead within THIRTY (30) DAYS of the issuance
of this Decision and Order.
ORDERED that, in the event Plaintiff files an Amended
Complaint within the above-referenced thirty-day period, it
shall be referred to Magistrate Judge Peebles for review; and
it is further
ORDERED that, in the event Plaintiff does not file an
Amended Complaint within the above-referenced thirty-
day period, this action shall move forward with respect to
his Fourth Amendment cause of action against Defendants
Mamoun, Kittle, Hauck, Altimonda and Fiorini, and the Clerk
of the Court is directed to issue summonses and USM-285
forms at that time for service by the U.S. Marshal Service.
All Citations
Not Reported in Fed. Supp., 2019 WL 974824
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
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Footnotes
1 The Court notes that, on January 11, 2019, Plaintiff filed a letter from the City of Syracuse Citizen Review
Board dated December 31, 2018, outlining its findings with respect to this matter. (Dkt. No. 10.) In its letter,
the Citizen Review Board upheld Plaintiff’s claim for excessive force against “Det. One,” recommended a
written reprimand against that individual, and absolved “Det. Two,” “Sgt. One,” and “Lt. One” from wrongdoing
regarding the use of excessive force. (Id.) The Court does not liberally construe this letter as any sort of
Objection to the Report-Recommendation.
2 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to
only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing
such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at
*1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s]
report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal
quotation marks omitted).
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Williams v. 120 PCT Undercover, Not Reported in Fed. Supp. (2011)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 13128209
Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States District Court, E.D. New York.
Ozan WILLIAMS, Plaintiff,
v.
120 PCT UNDERCOVER; District 9, Defendants.
11-CV-4690 (KAM) (CLP)
|
Signed October 17, 2011
|
Filed 10/18/2011
Attorneys and Law Firms
Ozan Williams, Fishkill, NY, pro se.
MEMORANDUM AND ORDER
MATSUMOTO, United States District Judge
*1 Pro se plaintiff Ozan Williams, currently incarcerated
at the George R. Vierno Center on Rikers Island, filed the
instant action on September 21, 2011 pursuant to 42 U.S.C. §
1983. As set forth below, the court grants plaintiff’s request
to proceed in forma pauperis pursuant to 28 U.S.C. § 1915
and directs him to file an amended complaint within 30 days
of the entry date of this order.
Background
Plaintiff alleges that on August 26, 2008, “at 91 Broad Street,
Staten Island, N.Y. 10304” he was beaten twice by undercover
cops “for no reason.” (ECF No. 1, Complaint (“Compl.”)
at ¶ IV.) Plaintiff further alleges that he received medical
treatment, but that he “still can't see good.” (Id. at ¶ IV.A.) The
remedy plaintiff seeks is unclear, but he states: “my health
first and stop[p]ing these same police from getting me locked
up ....” (Id. at ¶ V.)
Standard of Review
The court is aware that plaintiff is proceeding pro se and
“a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citation omitted). The court is obliged to construe plaintiff’s
pleadings liberally and interpret them as raising the strongest
arguments they suggest. Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 471 (2d Cir. 2006). Nevertheless, 28 U.S.C.
§ 1915A requires the court to screen a civil complaint “in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity” and thereafter
“dismiss the complaint, or any portion of the complaint,” if it
is “frivolous, malicious, or fails to state a claim upon which
relief may be granted.” 28 U.S.C. § 1915A(a), (b)(1). See
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (discussing
sua sponte standard pursuant to § 1915A).
Discussion
To sustain a claim pursuant to § 1983, a plaintiff must show
that the defendants (a) acted under color of state law (b)
to deprive the plaintiff of a constitutional right. Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1994). Here, plaintiff has
not named any parties who can be sued in this complaint.
To the extent plaintiff has named the 120 Precinct and District
9, a police precinct and district of the New York City Police
Department are not a proper parties to this action. Section 396
of the Charter provides that “[a]ll actions and proceedings for
the recovery of penalties for the violation of any law shall be
brought in the name of the city of New York and not in that of
any agency, except where otherwise provided by law.” N.Y.
City Charter § 396 (2009). That provision has been construed
to mean that “New York City departments, as distinct from the
City itself, lack the capacity to be sued.” Ximines v. George
Wingate High Sch., 516 F.3d 156, 160 (2d Cir. 2008); Jenkins
v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007)
(NYPD not a suable entity).
Leave to Amend
If a liberal reading of the pleading “gives any indication
that a valid claim might be stated,” the court must grant
leave to amend it. See Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000). In this circuit, it is well settled that a
“personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983.” Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)
(quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
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Williams v. 120 PCT Undercover, Not Reported in Fed. Supp. (2011)
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Plaintiff alleges that unnamed undercover police officers used
excessive force against him and caused him to sustain injuries
on August 26, 2008 but does not identify any particular
defendants. Therefore, the court grants plaintiff leave to file
an amended complaint within 30 days from the date of this
order. In the amended complaint, plaintiff must provide a
short statement of claim, including the dates and times of all
relevant events to the best of his recollection, and the relief
he seeks. Plaintiff must also name the individuals responsible
for the alleged deprivation of his civil rights. If plaintiff
cannot identify the individual defendant(s) within the time
allowed in this order or because they were undercover, he
may designate the individual as John (or Jane) Doe #1, and
so on. For example, Police Officer John Doe #1, employed
at ____________ on ______ (date) and _____ (time); Police
Officer John Doe #2, employed at____________ on (date)
and _______ (time). The same defendants named in the
caption of the amended complaint must also be named and
their actions described in the statement of claim. The amended
complaint shall replace the original complaint.
Conclusion
*2 For the reasons set forth above, plaintiff must file an
amended complaint in order to proceed with this action.
If plaintiff elects to file an amended complaint, it shall be
captioned “AMENDED COMPLAINT” and bear the same
docket number as this order, 11-CV-4690 (KAM) (CLP) and
shall be filed within 30 days from the entry of this order. If
plaintiff fails to file an amended complaint within the time
allowed or show good cause why he cannot comply, the case
shall be dismissed without prejudice and judgment shall enter.
The court certifies pursuant to 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. Coppedge v. United States, 369 U.S. 438, 444-45
(1962). The Clerk of Court is respectfully requested to serve a
copy of this Order on plaintiff and note service in the docket.
SO ORDERED.
Dated: October 17, 2011.
All Citations
Not Reported in Fed. Supp., 2011 WL 13128209
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Wright v. City of Syracuse, 611 Fed.Appx. 8 (2015)
2015 Fair Empl.Prac.Cas. (BNA) 181,250
© 2025 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.
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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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Wright v. City of Syracuse, 611 Fed.Appx. 8 (2015)
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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 v. City of Syracuse, 611 Fed.Appx. 8 (2015)
2015 Fair Empl.Prac.Cas. (BNA) 181,250
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
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.
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Wright v. City of Syracuse, 611 Fed.Appx. 8 (2015)
2015 Fair Empl.Prac.Cas. (BNA) 181,250
© 2025 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 © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Wright v. Orleans County, Not Reported in F.Supp.3d (2015)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2015 WL 5316410
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
David WRIGHT and Sarah Harris, Plaintiffs,
v.
ORLEANS COUNTY, Orleans County Sheriff, County
of Orleans Major Crime Task Force, Albion Police
Department, Village of Albion, Town of Albion, New
York State Office of Fire Prevention and Control,
Niagara County Sheriff, Albion Fire Department,
Rocco Sidari, both individually and in his capacity as
Albion Fire Chief, Jeremy Grahm, both individually
and in his capacity as an employee of Albion Fire
Department, Jeffrey Gifaldi, both individually and in
his capacity as Investigator for the Village of Albion
Police Department, Joseph Fuller, both individually
and in his capacity as a police officer for the Village of
Albion Police Department, John Doyle, both individually
and in his capacity as police officer for the Village
of Albion Police Department, Karol L. Hughes, both
individually and in his capacity as police officer for
the Village of Albion Police Department, Erik Holter,
both individually and in his capacity as Investigator
with the New York State Office of Fire Prevention
and Control, Donald Clawson, Michael Jutrowski,
Adriean Ann Park, Paul E. Savage, Randi Shadic,
Steven M. Nassivera, Nicholas Long, The Hartford,
and Sentinel Insurance Company, Ltd., Defendants.
No. 14–CV–00622A(F).
|
Signed Sept. 10, 2015.
Attorneys and Law Firms
Elliott, Stern & Calabrese, LLP David S. Stern, of Counsel,
Rochester, NY, for Plaintiffs.
Webster Szanyi, LLP, Michael P. McClaren, Andrew
Dylan, and Florina Altshiler, of Counsel, Buffalo, NY,
for Defendants Orleans County, Oleans County Sheriff,
County of Orleans Major Crime Task Force, Albion Police
Department, Village of Albion, Town of Albion, Niagara
County Sheriff, Jeffrey Gifaldi, Joseph Fuller, John Doyle,
and Karol L. Hughes.
Eric T. Schneiderman, New York State Attorney General,
STephanie Joy Calhoun, Assistant Attorney General, of
Counsel, Buffalo, NY, for Defendants New York State Office
of Fire Prevention and Control, Eric Holter, and Randi Shadic.
Gennet Kallman Antin & Robinson, P.C. Mark Leigh Antin,
and Michael Scott Leavy, of Counsel New York, NY, for
Defendant Paul E. Savage.
Leclair Korona Giordano Cole LLP, Laurie A. Giordano,
and Michael E. Nicholson, of Counsel, Rochester, NY, for
Steven M. Nassivera, The Hartford, and Sentinel Insurance
Company, Limited.
Walsh, Roberts & Grace, Buffalo, NY, for Albion Fire
Department, Rocco Sidari, and Jeremy Grahm.
REPORT and RECOMMENDATION
DECISION and ORDER
LESLIE G. FOSCHIO, United States Magistrate Judge.
JURISDICTION
*1 This action was referred to the undersigned by Honorable
Richard J. Arcara on October 16, 2014, for all pretrial
matters including preparation of a report and recommendation
on dispositive motions. The matter is presently before the
court on motions to dismiss filed on October 15, 2014,
by Defendants Orleans County, Orleans County Sheriff,
County of Orleans Major Crime Task Force, Albion Police
Department, Village of Albion, Town of Albion, Niagara
County Sheriff, Jeffrey Gifaldi, Joseph Fuller, John Doyle,
and Karol L. Hughes (Doc. No. 22), on November 3, 2014 by
Defendants Steven M. Nassivera, The Hartford, and Sentinel
Insurance Company, Limited (Doc. No. 28), on November 7,
2014, by Defendant Paul E. Savage (Doc. No. 30), and on
November 17, 2014, by Defendants New York State Office of
Fire Prevention and Control, Eric Holter, and Randi Shadic
(Doc. No. 33), as well as Plaintiffs' motion for leave to file an
amended complaint, filed December 8, 2014 (Doc. No. 36). 1
BACKGROUND
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Plaintiffs Sarah Harris (“Harris”), and David Wright
(“Wright”) (together, “Plaintiffs”), commenced this civil
rights action on August 1, 2014, alleging Defendants
violated their constitutional rights in connection with the
investigation of a fire that destroyed Harris's business, and
subsequent indictment, arrest, and prosecution of Plaintiffs
for arson and criminal mischief in connection with the
fire. Defendants to this action include Orleans County
(“Orleans County”), Orleans County Sheriff (“Orleans
County Sheriff”), County of Orleans Major Crime Task
Force (“the Crime Task Force”), Albion Police Department
(“Albion Police”), Village of Albion (“the Village”), Town
of Albion (“the Town”), New York State Office of Fire
Prevention and Control (“Fire Prevention Office”), Niagara
County Sheriff (“Niagara County Sheriff”), Albion Fire
Department (“Fire Department”), Rocco Sidari (“Sidari”),
Jeremy Grahm (“Grahm”), Jeffrey Gifaldi (“Gifaldi”),
Joseph Fuller (Fuller”), John Doyle (“Doyle”), Karol L.
Hughes (“Hughes”), Erik Holter (“Holter”), Donald Clawson
(“Clawson”), Michael Jutrowski (“Jutrowski”), Adriean
Ann Park (“Park”), Paul E. Savage (“Savage”), Randi
Shadic (“Shadic”), Steven M. Nassivera (“Nassivera”),
Nicholas Long (“Long”), The Hartford (“Hartford”), and
Sentinel Insurance Company, LTD (“Sentinel”) (together,
“Defendants”). Plaintiffs assert four claims for relief
including (1) false arrest, Complaint ¶¶ 43–52 (“false
arrest claim”); (2) malicious prosecution, Complaint ¶¶ 53–
61 (“malicious prosecution claim”); (3) negligent hiring,
supervision and retention, Complaint ¶¶ 62–69 (“supervisory
liability claim”); and (4) false arrest, malicious prosecution,
and deprivation of a fair trial in violation of Plaintiffs' civil
rights under 42 U.S.C. § 1983 (“ § 1983”), and the New York
State Constitution, Complaint ¶¶ 70–75 (“civil rights claim”).
On September 26, 2014, Defendants Fire Department,
Grahm, and Sidari (“Fire Department Defendants”), filed an
Answer (Doc. No. 12).
*2 On October 15, 2014, Defendants Orleans County,
Orleans County Sheriff, the Crime Task Force, Albion Police,
the Village, the Town, Niagara County Sheriff, Gifaldi,
Fuller, Doyle, and Hughes (“Prosecuting Defendants”) filed
a motion to dismiss (Doc. No. 22) (“Prosecuting Defendants'
Motion”), supported by the attached Declaration of Andrew
Dylan, Esq. (Doc. No. 22–1) (“Dylan Declaration”), and
the Memorandum of Law in Support of Motion to Dismiss
(Doc. No. 22–2) (“Prosecuting Defendants' Memorandum”).
On November 3, 2014, Defendants Hartford, Sentinel and
Nassivera (“Insurance Defendants”), filed a motion to dismiss
(Doc. No. 28) (“Insurance Defendants' Motion”), attaching
the Memorandum of Law in Support of Motion to Dismiss
(Doc. No. 28–1) (“Insurance Defendants' Memorandum”).
On November 7, 2014, Defendant Savage filed a motion
to dismiss or, alternatively, for summary judgment (Doc.
No. 30) (“Savage's Motion”), attaching in support the
Memorandum of Law of Defendant Paul E. Savage (Doc.
No. 30–1) (“Savage's Memorandum”), a Statement of Facts
in Support of Motion for Summary Judgment (Doc. No.
30–2) (“Savage's Statement of Facts”), the Affidavit of
Paul E. Savage in Support of Motion to Dismiss or for
Summary Judgment (Doc. No. 30–3) (“Savage's Affidavit”),
and the Declaration of Michael S. Leavy, Esq., in Support
of Motion to Dismiss or for Summary Judgment (Doc. No.
30–4) (“Leavy Declaration”), with exhibits 1 through 4, and
5 (Docs. Nos. 30–5 through 30–10, and exhibit 3 (Doc.
No. 31) (“Savage's Exh(s). ___”). On November 17, 2014,
Defendants Fire Prevention Office, Holter, and Shadic (“Fire
Prevention Defendants”), filed a motion to dismiss (Doc.
No. 33) (“Fire Prevention Defendants' Motion”), attaching
Defendants' New York State Office of Fire Prevention and
Control, Erik Holter, and Randi Shadic Memorandum of
Law in Support of Motion to Dismiss for Failure to State a
Claim Pursuant to F.R.C.P. 12(b)(6) (Doc. No. 33–1) (“Fire
Prevention Defendants' Memorandum”).
In opposition to the motions to dismiss, Plaintiffs filed
on December 8, 2014, the Cross–Notice of Motion [sic
] (Doc. No. 36) (“Plaintiff's Motion”), seeking leave to
file an amended complaint, attaching the Declaration of
David S. Stern, Esq. (“Stern Declaration”), the Memorandum
in Support of Plaintiff' [sic ] Opposition to Defendants'
Motions to Dismiss Complaint and in Support of Cross
Motion Permitting Plaintiffs to Amend Their Complaint
(“Plaintiffs' Memorandum”), with a copy of the proposed
amended complaint attached as Exh. A (“Proposed
Amended Complaint”). Plaintiffs' Memorandum contains
legal argument in support of Plaintiffs' Motion seeking leave
to file an amended complaint but does not respond to
the various arguments made by the Defendants moving to
dismiss.
On December 23, 2014, Prosecuting Defendants filed in
further support of dismissal the Reply Declaration of Florina
Altshiler, Esq. (Doc. No. 38) (“Altshiler Reply Declaration”),
attaching exhibits A and B (“Prosecuting Defendants'
Reply Exh(s). ___”). On January 12, 2015, Savage filed
the Reply Memorandum of Law of Defendant Paul E.
Savage in Further Support of Motion to Dismiss Complaint
Pursuant to Fed.R.Civ.P. 12(b)(6), or, Alternatively, for
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Summary Judgment Pursuant to Fed.R.Civ.P. 56(a) (Doc.
No. 41) (“Savage Reply”). On January 14, 2015, the
Insurance Defendants filed the Attorney Declaration of
Laurie A. Giordano, Esq. (Doc. No. 42) (“Giordano Reply
Declaration”), attaching the Memorandum in Reply to
Plaintiffs' Opposition to Motion to Dismiss and in Opposition
to Plaintiffs' Motion to Amend the Complaint (Doc. No.
42–1) (Insurance Defendants' Reply”), the Fire Prevention
Defendants filed the Declaration of Assistant Attorney
General Stephanie Joy Calhoun (Doc. No. 43) (“Calhoun
Reply Declaration”), and the Prosecuting Defendants filed the
Amended Reply Declaration of Florina Altshiler, Esq. (Doc.
No. 44) (“Amended Altshiler Reply Declaration”), attaching
exhibits A and B (“Prosecuting Defendants' Exh(s). ___”).
Oral argument was deemed unnecessary.
*3 Based on the following, the Prosecuting Defendants'
Motion should be GRANTED in part and DENIED in part;
the Insurance Defendants' Motion should be GRANTED;
Savage's Motion should be GRANTED insofar as it
seeks to dismiss the Complaint for failure to state a
claim and is DISMISSED as moot as to the alternative
request for summary judgment; and the Fire Prevention
Defendants' Motion should be GRANTED; Plaintiffs' Motion
is GRANTED in part and DENIED in part.
FACTS
Because the motions pending before the court include
motions by various Defendants to dismiss for failure to state a
claim, and Plaintiffs' crossmotion for leave to file an amended
complaint alleging additional facts so as to avoid dismissal
of the action, the court, in the interest of completeness and
clarity, separately considers the facts of both the Complaint
and the Proposed Amended Complaint, as well as facts found
in a report prepared by an insurance investigator incorporated
by reference into the Proposed Amended Complaint.
The Complaint
The facts as pleaded in the Complaint, although sparse,
assert that on August 13, 2012, “Defendants began an arson
investigation of the Plaintiffs herein arising from a fire loss
that occurred on or about that date located at 158 Hamilton
Street, Albion, New York.” Complaint ¶ 32. Defendants
appeared before an Orleans County grand jury (“the Grand
Jury”) 2 and presented evidence resulting in an indictment
on March 15, 2013 (“the Indictment”), 3 charging Plaintiffs
with violations of New York Penal Law (“N.Y. Penal Law”)
§ 150.10(1) (Arson in the Third Degree) (“the arson charge”),
and § 145.00(1) (Criminal Mischief in the Fourth Degree)
(“the criminal mischief charge”) (together, “the criminal
charges”). After the Indictment was returned, Plaintiffs were
arrested on the charges and tried in Orleans County Court,
before County Court Judge James P. Punch (“Judge Punch”)
(“the trial”). The trial commenced on November 12, 2013,
and continued through November 22, 2013, when Judge
Punch dismissed both charges against Harris 4 and the
jury returned a verdict acquitting Wright on both charges.
Plaintiffs maintain that the investigation and prosecution
damaged their personal and social reputations, as well as their
business reputation and standing in the business community
and that those involved in investigating the fire failed to
thoroughly discern whether the fire was electrical in nature
and not an arson.
The Proposed Amended Complaint
The Proposed Amended Complaint Plaintiffs seek leave to
file provides more facts including that on March 13, 2012,
Plaintiff Harris opened her own business, a novelty/smoke
shop and second-hand clothing store (“the shop”), located
at 158 Hamilton Street, in Albion, New York. Proposed
Amended Complaint ¶¶ 33–34. The building in which the
shop was located had recently been purchased and extensively
renovated by Harris and her boyfriend, Plaintiff Wright, and
Plaintiffs, in addition to their hard work and labor, invested
$ 18,000 in the premises, $ 45,000 in inventory, $ 10,000 in
display cases, and $ 35,000 in “tattoo flash” 5 and artwork.
Id. ¶¶ 35–37. On August 12, 2012, a fire (“the fire”), heavily
damaged the shop and resulted in a total loss of its inventory
and contents. Id. ¶¶ 38, 40. Harris was notified of the fire by a
customer, one Amber M. Mesita (“Mesita”), who telephoned
Plaintiff in the early morning of August 12, 2012. Harris and
Wright then “rushed” to the shop and were told by Mesita that
she informed Defendant Ablion Police Officer John Doyle
(“Doyle”), who was the first police officer to arrive at the
scene of the fire, that Mesita smelled what she recognized
as the odor of an electrical fire. Id. ¶ 45. Doyle interviewed
both Harris and Wright, preparing written statements for their
signatures, id. ¶ 46, but never recorded Mesita's observation
regarding the odor of an electrical fire. Id. ¶ 47. On August
13, 2012, Defendants commenced an arson investigation of
the fire (“the investigation”). Plaintiffs cooperated with the
investigation, including consenting to further interviews by
insurance investigators Defendants Paul Savage (“Savage”)
and Steve Nassivera (“Nassivera”), and insurance adjuster
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Jennifer Holler (“Holler”), 6 as well as Defendants Albion
Police Officer Jeffrey Gifaldi (“Gifaldi”) and Sergeant Joseph
Fuller (“Fuller”). Proposed Amended Complaint ¶¶ 48–50.
Defendant Donald Clawson (“Clawson”), who was known
in the community to have a psychiatric and criminal history,
contacted the Albion Police, the Orleans County Sheriff,
and Defendant Hartford Insurance Company (“Hartford”),
reporting that Wright burned down the shop, hoping to
receive reward money for reporting the arson. Id. ¶¶ 51–
53. According to Plaintiffs, “the investigators in this case
were overcome by their eagerness and zeal of convicting
Plaintiffs demonstrated by their conduct in selectively
choosing evidence and ignoring blunt holes in their case.” Id.
¶ 54. Plaintiffs assert that Clawson reported Wright started
the fire in a red plastic bucket, despite Savage and Holter's
conclusion that if the fire originated in the red plastic bucket, it
would have been burnt beyond recognition. Id. ¶ 55. Plaintiffs
allege Defendant Albion Fire Department Chief Rocco Sidari
(“Sidari”), failed to hire an arson investigator to conduct
a proper investigation of the fire and coached witnesses,
including Albion Fire Department employee Jeremy Grahm
(“Grahm”), and another, unidentified firefighter, to testify that
“the fire appeared as if it were from an incendiary origin....”
Id. ¶¶ 57–59. Plaintiffs similarly assert Defendant police
investigator Gifaldi, despite knowing Clawson's reputation,
“cajoled” witnesses, including Defendants Adrian Park
(“Park”), and Michael Jutrowski (“Jutrowski”), into testifying
at trial against Plaintiffs with threats of jail. Id. ¶¶ 60–62.
Plaintiffs' describe Park's trial testimony as informing the
jury Gifaldi had forced her to testify against Plaintiffs, while
Jutrowski testified Wright started the fire “by flipping a
cigarette above the inflammable ceiling tiles,” id. ¶¶ 63, which
conflicted with Prosecuting Defendants' own investigation.
Id. ¶ 64.
*4 Harris's insurance company, Defendant Hartford,
retained fire origin and cause investigation firm PT & C
Forensic Consulting Services, P.A. (“PT & C”), 7 based in
Atlanta, Georgia, to conduct a forensic investigation of the
fire's origin and caused, which was conducted on August
15, 2012, by Savage, PT & C's Senior Fire & Explosion
Consultant. Proposed Amended Complaint ¶ 65. In his report
(“Investigative Report”), dated September 10, 2012, Savage,
based on his investigation including three fire debris samples
for which laboratory analysis revealed no accelerants present,
concluded the fire originated along the rear wall of the shop's
office, that the ignition source, the first material ignited,
and ignition sequence were all unknown, and the fire's
“cause classification” was “undetermined with incendiary not
eliminated.” Id. ¶¶ 65–66. Although Gifaldi subsequently
provided Savage with Defendant Niagara County Sheriff's
Office Forensic Laboratory report (“Niagara County Forensic
Laboratory Report”), indicating accelerants were present in
one of two fire debris samples, consistent with a “medium
petroleum distillate,” such as mineral spirits, paint thinners,
and charcoal starters, such findings did not change Savage's
conclusion in the Investigative Report. Id. ¶ 67. Plaintiffs
assert Gifaldi agreed with Savage's conclusion that the fire
originated in the shop's rear office wall near Harris's desk,
id. ¶ 68, yet Defendant Albion Police employees, including
Doyle, Fuller, Gifaldi, and Hughes, failed to secure video
footage from a security digital video recorder (“DVR”),
which Plaintiffs maintain would have established Plaintiffs
did not set the fire. Id. ¶ 71.
Plaintiffs assert Defendant Erik Holter (“Holter”), an
investigator with Defendant Fire Prevention Office, failed to
conduct a proper fire investigation to determine whether an
electrical short caused the fire, and instead simply rubber-
stamped Gifaldi's investigation despite its obvious short-
comings. Proposed Amended Complaint ¶ 72. According
to Plaintiffs, Nassivera intentionally misused tape recorded
statements of Plaintiffs when testifying at the trial,
interpreting inaudible portions of the audio recordings so
as to slant the meaning against Plaintiffs. Id. ¶ 73. Gifaldi
allegedly “interviewed witnesses of known doubtfulness,”
and provided false Grand Jury testimony to secure the
Indictment, including stating the shop's security system and
DVR were not operating at the time of the fire, and that
Plaintiffs had purposefully shut off a fire alarm system which
Plaintiffs maintain was abandoned by the shop's former
tenant. Id. ¶ 74. Gifaldi allegedly embellished his job title
at the trial, claiming to be a “Level II” arson investigator
when no such designation exists, and also falsely testified
that he failed to take any contemporaneous hand written
notes which were contradicted by witnesses who reported
observing Gifaldi taking notes.
Fire Investigative Reports
*5 The Proposed Amended Complaint refers to both the
Investigative Report prepared by Savage and a supplement to
the Investigative Report (“Supplemental Report”), prepared
by Savage regarding the Niagara County Forsenic Laboratory
Report. In particular, Savage reported that Defendant Albion
Police Department (“Albion Police”), initially listed the
fire's cause as “undetermined pending further investigation.”
Investigative Report at 2. According to Savage, although
there was smoke and heat damage throughout the shop,
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most of the shop's fire damage occurred in the shop's office,
particularly at the rear wall near Harris's desk and a large
sofa. Id. at 3. Wright's desk, located at the office's doorway,
had less damage but the remains of a medium sized red
plastic trash can with “fire/melt damage” and which had
“melted into itself,” was found in front of Wright's desk
instead of in its regular location between Harris's desk and
the large sofa. Id. The caption to photo 52 accompanying the
Investigative Report (“Photo 52”) 8 depicting the red plastic
trash can states “[t]he red trash can did not burn here, there
is no corresponding fire damage to [Wright's] 9 wood desk.
This may have been moved/kicked around by fire department
personal [sic ] during suppression. It should have been at the
rear wall next to [Harris's] desk.”
Savage reported that close examination of the shop's rear
entry door revealed a “very loose” striker plate that “was
not loose from pry damage, but would have to [have] been
loosened by unscrewing the two large metal/steel screws that
hold it in place against the jamb.” Investigative Report at
3. Because the loosened strike plate moved, the rear door
hardware “plunger was not able to seat properly in the striker
plate and could move easily.” Id. Savage essentially ruled out
the fire's cause as electrical as “[e]xamination of structural
electrical conductors and receptacles showed no arc damage
or any indication of being related to the cause of the fire.” Id.
A power strip on the floor near Harris's desk “sustained total
fire damage” although Harris “stated it was not plugged in or
being used.” Id.
Savage reported that in an on-scene interview Harris stated
that on Sunday, March 11, 2012, she was in the shop's office at
11:00 P.M ., reviewing bills and invoices while she waited for
Wright to drive her home. Investigative Report at 4. Wright
arrived around midnight and drove Harris to her home where
they later received a telephone call notifying them the shop
was on fire. Id. The fire had been extinguished by the time
Plaintiffs returned to the shop, but the fire trucks remained on
the scene. Harris stated that “things were not too good with
bills.” Id.
Savage also interviewed Wright who described helping Harris
with the shop, receiving from his realtor ex-father-in-law
household items and clothing from ‘house clean outs' to be
sold second-hand in the shop. Savage Report at 4. Wright
stated he had received from a friend with a recent financial
settlement two loans for the shop, the first for $ 20,000 and the
second for $ 50,000. Id. Wright admitted the shop was behind
on its bills. Id. Wright further stated he picked up Harris
the night of the fire, setting the alarm system and turning
on a DVD recorder for outside cameras before leaving with
Harris at midnight, taking their laptop computers with them.
Id. Wright and Harris went to Harris's home where they fell
asleep and were awoken by a telephone call informing them
of the fire at the shop. Id. Wright stated they “had to find a
ride so they could get back to the shop taking about 30 to 40
minutes.” Id. Both Harris and Wright denied having a key to
the shop's rear door, stating “it could be secured with a good
slam shut.” Id.
*6 Savage concluded the fire originated along the rear
wall of the store's office, that the fire's cause was
“undetermined with incendiary not eliminated,” and noting
that no accelerants had been detected on any fire debris
samples collected at the scene of the fire. Investigative Report
at 4. In his report, Savage also commented that
This fire is still being investigated by
the Albion Police. Several pieces of
interview information are not clear.
Although the lab report is negative
for ignitable/flammable liquids in
the samples collected, this does not
remove the possibility of manual open
flame to paper or other combustibles.
There are other issues with regards
to the structure and with the insured's
ability to drive away from the shop
at closing yet needing to “find a ride”
back to the scene.
Id. at 5.
In a supplemental letter report issued on November 7, 2012
(“Supplemental Report”), 10 Savage indicated Defendant
Albion Police Detective Jeff Gifaldi (“Gifaldi”) had advised
of the discovery in the fire debris of an accelerant consistent
with a medium petroleum distillate such as mineral oil, but
that the discovery did not change Savage's conclusion and the
fire's cause remained undetermined “with incendiary still not
eliminated.” Supplemental Report at 1.
DISCUSSION
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Pending before the court are motions to dismiss
filed by Prosecuting Defendants, Insurance Defendants,
Defendant Savage, and Fire Prevention Defendants (“moving
Defendants”). The other named Defendants to this action,
including the Albion Fire Department, Rocco Sidari, Jeremy
Grahm, Donald Clawson, Michael Jutrowski, Adriean Ann
Park, and Nicholas Long (the non-moving Defendants”), have
not moved to dismiss. In opposition to the motions to dismiss,
Plaintiffs have moved for leave to file an amended complaint,
but have not otherwise responded in opposition to the moving
Defendants' arguments in support of dismissal.
1. Insufficient Service of Process
Defendant Crime Task Force moves to dismiss the Complaint
for insufficient service of Process based on Plaintiffs'
failure to file the affidavit required under Fed.R.Civ.P. 4(l)
(1) indicating service was made. Prosecuting Defendants'
Memorandum at 4. A review of the docket, however,
establishes an Affidavit of Process Server was filed on
October 3, 2014 (Doc. No. 21–2), stating that on August 27,
2014, one Eric Harling, an Investigator with the Crime Task
Force, was personally served with a copy of the summons and
verified Complaint. Accordingly, Prosecuting Defendants'
Motion should be DENIED insofar as they seek dismissal of
the action as against the Crime Task Force for insufficient
service of process. 11
2. Motion to Dismiss
Pending before the court are four motions to dismiss the
Complaint filed by the Prosecuting Defendants, the Insurance
Defendants, Savage, and the Fire Prevention Defendants. On
a motion to dismiss under Fed.R.Civ.P. 12(b)(6) ( “Rule 12(b)
(6)”), the court looks to the four corners of the complaint
and is required to accept the plaintiff's allegations as true
and to construe those allegations in the light most favorable
to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974); Goldstein v. Pataki, 516
F.3d 50, 56 (2d Cir.2008) (court is required to liberally
construe the complaint, accept as true all factual allegations
in the complaint, and draw all reasonable inferences in the
plaintiff's favor). The Supreme Court requires application
of “a ‘plausibility standard,’ which is guided by ‘[t]wo
working principles.’ “ Harris v. Mills, 572 F.3d 66, 71–72
(2d Cir.2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and
quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009)). “First, although ‘a court
must accept as true all of the allegations contained in a
complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’
and ‘[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.’
“ Harris, 572 F.3d at 72 (quoting Iqbal, 556 U.S. at 678).
“ ‘Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss,’ and ‘[d]etermining
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.’ “ Id.
(quoting Iqbal, 556 U.S. at 679).
*7 “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.’ “ Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 570). “A claim will have
‘facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.’ “ Sykes v.
Bank of America, 723 F.3d 399, 403 (2d Cir.2013) (quoting
Ashcroft, 556 U.S. at 678); see Twombly, 550 U.S. at 570
(the complaint must plead “enough facts to state a claim to
relief that is plausible on its face”). The factual allegations
of the complaint “must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true.” Twombly, 550 U.S.
at 570. “ ‘In adjudicating a motion to dismiss, a court may
consider only the complaint, any written instrument attached,
and any document upon which the complaint heavily relies.’
“ ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir.2014)
(quoting In re Thelen LLP, 736 F.3d 213, 219 (2d Cir.2013)).
In the instant case, a thorough review of the Complaint
establishes it fails to state any viable claim against
Prosecuting Defendants, Insurance Defendants, Savage, and
Fire Prevention Defendants.
A. Capacity to be Sued
Preliminarily, the court addresses the Prosecuting Defendants'
argument, Prosecuting Defendants' Memorandum at 2–4, that
the Orleans County Sheriff, the Crime Task Force, the Albion
Police, and the Niagara County Sheriff lack the capacity to be
sued, requiring dismissal of the Complaint as against them.
Plaintiffs have not responded in opposition to this argument,
nor have Prosecuting Defendants argued in further support of
the argument.
The “[c]apacity to sue or be sued is determined ... by the
law of the state where the court is located,” Fed.R.Civ.P.
17(b), here, the law of New York which, as relevant, provides
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that a “municipal corporation” may sue or be sued. N.Y.
General Municipal Law (“N.Y.Gen.Mun.Law”) § 50. Further,
a “municipal corporation,” as defined, “includes only a
county, town, city and village.” N.Y. Gen. Mun. Law § 2.
An administrative arm of a municipal corporation, however,
does not exist separate and apart from the municipality
and does not have its own legal identity. Laboy v. Ontario
County, N.Y., ––– F.Supp.3d ––––; 2015 WL 1977251, at
* 6 (W.D.N.Y. May 4, 2015). In the instant case, the
Orleans County Sheriff and the Crime Task Force are
administrative arms of Orleans County, the Albion Police
is an administrative arm of the Village of Albion, and the
Niagara County Sheriff is an administrative arm of the County
of Niagara. See Phillips v. Cortland City Police, 2013 WL
5462951, at * 2 (N.D.N.Y. Sept.30, 2013) (“Because the
Defendant Police Department is an administrative arm of
the City of Cortland, it lacks the capacity to be sued.”);
McKenzie v. County of Erie, 2013 WL 5348084, at * 2
(W.D.N.Y. Sept.23, 2013) (dismissing claims against various
Erie County departments, including the Erie County Sheriff's
Department, the Erie County Holding Center, the Erie County
Department of Health, and the Erie County Department
of Mental Health, as each such department “is merely an
administrative arm of the County, and they therefore lack the
capacity to be sued.”). As such, the Orleans County Sheriff,
the Crime Task Force, the Albion Police, and the Niagara
County Sheriff cannot sue or be sued. Id. Accordingly, the
Prosecuting Defendants' Motion should be GRANTED as
to all claims set forth in the Complaint against the Orleans
County Sheriff, the Crime Task Force, the Albion Police, and
the Niagara County Sheriff. 12
B. Niagara County Sheriff
*8 Prosecuting Defendants also seeks dismissal of the
malicious prosecution and negligence claims against Niagara
County Sheriff for failing to plead any facts indicating
the Niagara County Sheriff was involved in the criminal
prosecution against Plaintiffs, which occurred in Orleans
County. Prosecuting Defendants' Memorandum at 10–11.
Plaintiffs have not responded in opposition to this argument.
A thorough reading of the Complaint reveals no factual
allegations against Niagara County Sheriff. Further, the
Complaint indicates that the criminal prosecution of which
Plaintiffs complain occurred in Orleans County where the
shop is located. The Complaint thus fails to state any viable
claim against Niagara County Sheriff.
Prosecuting Defendants' Motion should thus be GRANTED
as to Niagara County Sheriff.
C. Civil Rights Claims
The Prosecuting Defendants are alleged in the fourth claim
pursuant to § 1983 to have violated Plaintiffs' civil rights.
Complaint ¶¶ 70–75. An individual may seek damages against
any person who, under color of state law, subjects such
individual to the deprivation of any rights, privileges, or
immunities protected by the Constitution or laws of the
United States. 42 U.S.C. § 1983. Under § 1983 an action is
permitted “against a ‘person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State ...
subjects, or causes to be subjected, any citizen of the United
States ... to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws.’ “ Patterson
v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.2004)
(quoting 42 U.S.C. § 1983). Section § 1983, however, “ ‘is not
itself a source of substantive rights.’ “ Id. (quoting Baker v.
McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d
433 (1979)). Rather, § 1983 “merely provides ‘a method for
vindicating federal rights elsewhere conferred....’ “ Id. The
elements of a § 1983 claim include (1) the deprivation of
a federal constitutional or statutory right, (2) by a person
acting under color of state law. Velez v. Levy, 401 F.3d 75, 84
(2d Cir.2005). Thus, “[t]he first step in any such claim is to
identify the specific constitutional right allegedly infringed.”
Id. (citing Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct.
1865, 104 L.Ed.2d 443 (1989); and Baker, 443 U .S. at 140).
In the instant case, Plaintiffs allege Prosecuting Defendants
subjected them to unlawful arrest, malicious prosecution, and
denial of a fair trial in violation of their Fourth, Fifth, Sixth
and Fourteenth Amendment rights.
D. False Arrest and Malicious Prosecution Claims
Plaintiffs assert claims for false arrest and malicious
prosecution under both New York common law and § 1983.
Complaint ¶¶ 43–52 (New York common law false arrest);
53–61 (New York common law malicious prosecution);
and 70–75 (§ 1983 false arrest and malicious prosecution).
The common law false arrest claim and the civil rights
claim are asserted only against some of the Prosecuting
Defendants, including the Orleans County Sheriff, the Crime
Task Force, and the Albion Police Department, whereas the
common law malicious prosecution claim is asserted against
all Prosecuting Defendants, Defendant Savage, the Insurance
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Defendants, and the Fire Prevention Defendants, as well as
against the non-moving Defendants. As discussed below, the
existence of probable cause, as evidenced by the Indictment,
requires the dismissal of these claims.
*9 Plaintiffs' first claim is a New York tort claim for false
arrest. Complaint ¶¶ 43–52. “Under New York law, a plaintiff
claiming false arrest must show, inter alia, that the defendant
intentionally confined him without his consent and without
justification.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)
(citing Broughton v. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87,
335 N.E.2d 310, 313–14 (N.Y.), cert. denied, 423 U.S. 929,
96 S.Ct. 277, 46 L.Ed.2d 257 (1975)). The elements of a
false arrest claim under New York law include 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. Bernard v. United States, 25 F.3d
98, 102 (2d Cir.1994) (citing Benjamin v. United States, 554
F.Supp. 82, 85 (E.D.N.Y.1982)).
Plaintiffs' second claim is for malicious prosecution in
violation of New York common law. Complaint ¶¶ 53–61. “To
establish a malicious prosecution claim under New York Law,
a plaintiff must prove (1) the initiation or continuation of a
criminal proceeding against the plaintiff; (2) the termination
of the proceeding in plaintiff's favor; (2) lack of probable
cause for commencing the proceeding; and (4) actual malice
as a motivation for defendant's actions.” Manganiello v. City
of New York, 612 F.3d 149, 161 (2d Cir.2010) (internal
quotation marks and citations omitted).
The fourth claim alleges both false arrest and malicious
prosecution in violation of § 1983. Complaint ¶¶ 70–75. The
same false arrest and malicious prosecution claims Plaintiffs
bring under New York common law may be brought under
§ 1983 because such claims invoke the Fourth Amendment's
protection of an individual's liberty interest with respect to
criminal prosecutions. See Singer v. Fulton County Sheriff, 63
F.3d 110, 115–16 (2d Cir.1995) (Fourth Amendment is the
source of § 1983 claims for malicious prosecution and false
arrest).
“A § 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. Weyant, 101 F.3d at 852. “In analyzing
§ 1983 claims for unconstitutional false arrest, we have
generally looked to the law of the state in which the arrest
occurred.” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir.2006)
(internal quotation marks omitted). Similarly, “[a] § 1983
claim for malicious prosecution looks to the relevant state
common law.” Gonzalez v. City of Schenectady, 728 F.3d 149,
162 (2d Cir.2013) (citing Janetka v. Dabe, 892 F.2d 187, 189
(2d Cir.1989)). Under New York law, a plaintiff must show
that the underlying proceeding was terminated in his favor
to make out a malicious prosecution claim. Id. “ ‘Where the
prosecution did not result in an acquittal, it is deemed to have
ended in favor of the accused, for these purposes, only when
its final disposition is such as to indicate the innocence of the
accused.’ “ Id. (quoting Murphy v. Lynn, 118 F.3d 938, 948
(2d Cir.1997)).
*10 As stated, Background, supra, at 4, Plaintiffs allege
New York common law claims for false arrest and malicious
prosecution, as well as § 1983 claims based on false arrest,
malicious prosecution, and denial of a fair trial. The existence
of probable cause for the arrest and malicious prosecution
of Plaintiffs, however, is a complete defense to Plaintiffs'
common law false arrest and malicious prosecution claims,
as well as Plaintiffs' § 1983 false arrest and malicious
prosecution claims. See Manganiello v. City of New York, 612
F.3d 149, 161–62 (2d Cir.2010) (probable cause is complete
defense to malicious prosecution claim in violation of New
York common law and § 1983); Jaegly v. Couch, 439 F.3d
149, 152 (2d Cir.2006) (“Under New York law, the existence
of probable cause is an absolute defense to a false arrest
claim.”); (Singer v. Fulton County Sheriff, 63 F.3d 110, 118
(2d Cir.1995) (probable cause is complete defense to false
arrest in violation of civil rights claim).
Further, an indictment by a grand jury establishes a rebuttable
presumption of probable cause. 13 Manganiello, 612 F.3d
at 162 (citing Savino v. City of New York, 331 F.3d 63, 72
(2d Cir.2003)). The presumption of probable cause “may be
rebutted only ‘by evidence that the indictment was procured
by ‘fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith.” “ Manganiello, 612 F.3d at
162 (quoting Savino, 331 F.3d at 72 (quoting Colon v. City
of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d
1248, 1251 (N.Y.1983))). 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.” Id. (quoting Boyd v. City of New York, 336
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F.3d 72, 77 (2d Cir.2003)). “ ‘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.” “ Id. (quoting Ricciuti
v. N.Y.C. Transit Authority, 124 F.3d 123, 130 (2d Cir.1997)
(quoting United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct.
2392, 49 L.Ed.2d 342 (1976))).
Nevertheless, “probable cause can exist even where it is
based on mistaken information, so long as the arresting
officer acted reasonably and in good faith in relying on that
information.” Bernard v. United States, 25 F.3d 98, 102 (2d
Cir.1994) (citing Colon v. City of New York, 60 N.Y.2d 78, 468
N.Y.S.2d 453, 455 N.E.2d 1248 (N.Y.1983). Further, “that
plaintiff was ultimately acquitted after trial does not negate
the existence of probable cause [rebutting the presumption of
probable cause afforded by the indictment].” Nadal v. City
of New York, 105 A.D.3d 598, 964 N.Y.S.2d 100, 101 (1st
Dept.2013) (citing Jenkins v. City of New York, 2 A.D.3d
291, 770 N.Y.S.2d 22, 24 (1st Dept.2003) (“Despite plaintiff's
subsequent acquittal, there was nonetheless probable cause
for the arresting officers' actions.”)).
*11 In the instant case, the Indictment returned by the
Orleans County Grand Jury on March 15, 2013, establishes
the requisite probable cause to extinguish Plaintiffs' common
law false arrest and malicious prosecution claims, as well as
Plaintiffs' § 1983 claims based on false arrest and malicious
prosecution. Significantly, Plaintiffs do not allege in the
Complaint any facts which, if true, would establish that
the Indictment was secured through bad faith or perjury
by persons acting under color of state law, such as law
enforcement officers, so as to rebut the presumption of
probable cause supporting the Indictment, and a plain reading
of the Complaint reveals no allegations to that effect.
Accordingly, Plaintiffs' New York common law claims for
false arrest and malicious prosecution, as well as the § 1983
claim for false arrest and malicious prosecution fail to state
a claim for which relief could be granted and the motions to
dismiss should be GRANTED as to these claims.
E. Fair Trial
Insofar as Plaintiffs' civil rights claim can be construed
as alleging a violation of their right to a fair trial, see
Complaint ¶ 33 (alleging unspecificed Defendants appeared
before the Grand Jury and intentionally or negligently
misrepresented and falsified facts and evidence); ¶ 34
(alleging unspecified Defendants presented false, fraudulent
and perjured testimony to the Grand Jury and at trial); and ¶
73 (alleging violations of, inter alia, Plaintiffs' Fifth, Sixth,
and Fourteenth Amendments), the Complaint may be liberally
construed as asserting a denial of the fundamental right to a
fair trial which must be dismissed for failure to state a claim.
See Bertuglia v. City of New York, 839 F.Supp.2d 703, 723
(S.D.N.Y.2012) (“ ‘Pursuant to § 1983 and prevailing case
law, denial of a right to a fair trial is a separate and distinct
cause of action.’ “ (quoting Nibbs v. City of New York, 800
F.Supp.2d 574, 575 (S.D.N.Y.2011))).
“The Constitution guarantees a fair trial through the Due
Process Clauses [of the Fifth and Fourteenth Amendments],
but it defines the basic elements of a fair trial largely
through the several provisions of the Sixth Amendment .... “
Strickland v. Washington, 466 U.S. 668, 684–85, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984) (analyzing habeas petition
asserting denial of fair trial based on violation of right to
counsel under Sixth Amendment). Specifically, “the due
process analysis is basically the same under both the Fifth and
Fourteenth Amendments.” Chew v. Dietrich, 143 F.3d 24, 28
n. 4 (2d Cir.1998). “[T]he [Supreme] Court has held that the
due process clause of the Fifth Amendment prohibits federal
action if the same action taken by a state would be proscribed
under the Fourteenth Amendment.” United States Postal
Service v. Brennan, 574 F.2d 712, 717 n. 10 (2d Cir.1978)
(citing Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98
L.Ed. 884 (1954)). Here, however, Plaintiffs challenge only
actions allegedly taken by Defendants under New York
law and, as such, Plaintiffs allege only a violation of the
Fourteenth Amendment, rather than the Fifth Amendment.
The Complaint thus fails to state any § 1983 claim based on
a violation of the Fifth Amendment.
*12 Although a due process violation, including denial of
the right to a fair trial, can be established by demonstrating
that state action deprived Plaintiffs of a property or
liberty interest protected by the Fourteenth Amendment,
Velez, 401 F.3d at 85, the Fourteenth Amendment is
relevant to Plaintiffs' fair trial claim only insofar as the
Fourteenth Amendment's Due Process Clause make the Sixth
Amendment applicable to Defendants as state actors. See
Tennesee v. Lane, 541 U.S. 509, 523, 124 S.Ct. 1978,
158 L.Ed.2d 820 (2004) (recognizing the Sixth Amendment
applies to the states via the Fourteenth Amendment). Further,
“[w]here a particular Amendment provides an explicit
textural source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more
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generalized notion of substantive due process, must be the
guide for analyzing these claims.” Albright v. Oliver, 510
U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994).
Accordingly, because the Sixth Amendment provides the
“explicit source of constitutional behavior” for Plaintiffs' fair
trial claim, the claim cannot be analyzed under the Fourteenth
Amendment.
The Sixth Amendment provides
In all criminal prosecutions, the
accused shall enjoy the right to
a speedy and public trial, by an
impartial jury of the State and district
wherein the crime shall have been
committed, which district shall have
been previously ascertained by law,
and to be informed of the nature
and cause of the accusation; to be
confronted with the witnesses against
him, to have compulsory process for
obtaining witnesses in his favor, and to
have the Assistance of Counsel for his
defence.”
U.S. Const. Amend. 6.
Further, that the government must prove the elements of the
charged crime beyond a reasonable doubt “is a requirement
and a safeguard of due process of law in the historic,
procedural content of ‘due process.’ “ In re Winship, 397 U.S.
358, 362, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (quoting
Leland v. Oregon, 343 U.S. 790, 802–03, 72 S.Ct. 1002, 96
L.Ed. 1302) (1952) (Frankfurter, J., dissenting)).
“It is firmly established that a constitutional right exists
not to be deprived of liberty on the basis of the false
evidence fabricated by a government officer.” Zahrey v.
Coffey, 221 F.3d 342, 355 (2d Cir.2000). “Such a claim based
on fabrication of evidence may be properly pled where a
plaintiff alleges that defendants fabricated evidence, which
was likely to influence a jury's decision, and forwarded it
to prosecutors.” McHenry v. Bell, 2015 WL 2354438, at *8
(N.D.N.Y. May 15, 2015) (citing Bertuglia, 839 F.Supp.2d
at 724; and Ricciuti, 124 F.3d at 130). “ ‘The constitutional
right in question is the right not to be deprived of liberty
as a result of the fabrication of evidence by a government
officer acting in an investigating capacity ... provided that
the deprivation of liberty ... can be shown to be the result of
the [officer's] fabrication of evidence.” Id. (internal quotation
marks and citations omitted). “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....” Ricciuti, 124
F.3d at 130. Further, “[i]t has long been established that a
prosecutor who knowingly uses false evidence at trial to
obtain a conviction acts unconstitutionally.” Zahrey, 221 F.3d
at 355.
*13 In the instant case, although Plaintiffs allege
unidentified Defendants presented falsified information to
the Grand Jury as well as at trial, the failure to specify
what constituted the allegedly falsified information is fatal
to Plaintiffs' fair trial claim. Nor does Plaintiffs' assertion,
Complaint ¶ 35, that exculpatory evidence was withheld
from the Grand Jury require a different result because the
prosecutor is not required to disclose to the grand jury
“substantial exculpatory evidence” in its possession. United
States v. Williams, 504 U.S. 36, 51–55, 112 S.Ct. 1735, 118
L.Ed.2d 352 (1992) (“requiring 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.”). Here, none of the individual
moving Defendants are alleged by Plaintiffs to have acted in
a manner by which Plaintiffs' trial was unfairly compromised.
Accordingly, the motions to dismiss should be GRANTED
insofar as Plaintiffs' claim they were denied a fair trial by any
named Defendant.
F. Personal Involvement
Prosecuting Defendants and Insurance Defendants argue in
support of dismissal that Plaintiffs' have failed to allege
the requisite personal involvement of individual Defendants
in the asserted claims, relying instead on “group pleading”
allegations which are insufficient to put the Defendants
on notice as to the claims asserted against them and thus
fail to comport with Fed.R.Civ.P. 8 (“Rule 8”). Prosecuting
Defendants' Memorandum at 6–8; Insurance Defendants'
Memorandum at 5–6. Fire Prevention Defendants argue
the Complaint fails to allege any of the Fire Prevention
Defendants were personally involved in the asserted unlawful
conduct. Fire Prevention Defendants' Memorandum at 5–6.
“ ‘It is well settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is a
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prerequisite to an award of damages under § 1983.’ “ Spavone
v. New York State Dept. of Correctional Services, 719 F.3d
127, 135 (2d Cir.2013) (quoting Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir.1995)). Pleadings that fail to differentiate
as to which defendant was involved in the alleged unlawful
conduct are insufficient to state a claim. See, e.g., Holmes v.
Allstate Corp., 2012 WL 627238, at ––––7 and 22 (S.D.N.Y.
Jan.27, 2012) (commenting that “[p]laintiffs' method of group
pleading is incoherent or illogical” and “Rule 8(a) is violated
where a plaintiff, by engaging in ‘group pleading,’ fails
to give each defendant fair notice of the claims against
it.” (citing Pierson v. Orlando Regional Healthcare Systems,
Inc., 619 F.Supp.2d 1260, 1273 (M.D.Fla.2009) (dismissing
complaint because group-pleading method of collectively
referring to individual defendants and two physician groups
as “Peer Review Defendants” throughout complaint did not
satisfy the “fair notice” requirement of Rule 8))); Zurich
American Ins. Co. v. Dah Sing Bank, Ltd., 2004 WL 1328215,
at *6 (S.D.N.Y. June 15, 2004) (dismissing complaint as
against one defendant bank against whom not “a single
factual allegation” was made but, rather, “lumps the three
bank defendants together and asserts that they collectively
processed the checks.”). Such “group pleading” is insufficient
for purposes of Rule 8(a) (2) which requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” See Iqbal, 566 U.S. at 678 (“the pleading
standard Rule 8 announces does not require detailed factual
allegations, but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” (citations and
quotation marks omitted)).
*14 Here, Plaintiffs' failure to specify against which moving
Defendants their claims are asserted requires dismissal of
Plaintiffs' claims as to those Defendants.
G. Supervisory Liability
Plaintiffs' third claim alleges supervisory liability under §
1983 and New York law against Defendants Orleans County,
the Town, the Village, the Orleans County Sheriff, the
Crime Task Force, the Fire Prevention Office, the Niagara
County Sheriff, Hartford, and Sentinel for negligent hiring,
supervision, and retention. Complaint ¶¶ 62–69.
1. § 1983
Supervisory liability under § 1983
can be shown in one or more of
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.
Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir.2003) (citing
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)).
There can be no supervisory liability for gross negligence
of a subordinate, however, unless the subordinate has
actually violated a plaintiff's constitutional rights. Raspardo
v. Carlone, 770 F.3d 97, 123 (2d Cir.2014) (citing Poe
v. Leonard, 282 F.3d 123, 134 (2d Cir.2002) (holding a
supervisor may not be held liable under § 1983 for acts
of a subordinate unless both the subordinate's violation of
the plaintiff's rights and the supervisory liability doctrine
under which the plaintiff wishes to hold the supervisor liable
are clearly established). See also Blyden v. Mancusi, 186
F.3d 252, 265 (2d Cir.1999) (“Of course, for a supervisor
to be liable under Section 1983, there must have been an
underlying constitutional deprivation.”); Elek v. Inc. Village
of Monroe, 815 F.Supp.2d 801, 808 (S.D.N.Y.2011) (where
the plaintiff “has not established any underlying constitutional
violation, [the plaintiff] cannot state a claim for § 1983
supervisory liability.”). In the instant case, because Plaintiff
has failed to state any constitutional deprivation claim against
any individual Defendant, there is no basis for any claim for
supervisory liability as against Defendants Orleans County,
Orleans County Sheriff, the Village, the Town, and Niagara
County Sheriff.
Alternatively, assuming, arguendo, Plaintiff had stated an
underlying § 1983 claim against an individual Defendant,
“supervisor liability in a § 1983 action depends on a
showing of some personal responsibility, and cannot rest on
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respondeat superior.” Hernandez, 341 F.3d at 144 (citing
Al–Jundi v. Estate of Rockfeller, 885 F.2d 1060, 1065 (2d
Cir.1989)). “ ‘Absent some personal involvement by [the
supervisory official] in the allegedly unlawful conduct of his
subordinates,’ he cannot be liable under section 1983.' “ Id.
at 144–45 (quoting Gill v. Mooney, 824 F.2d 192, 196 (2d
Cir.1987)). Even an imperfect investigation, without more,
does not give rise to a constitutional violation. Friedman v.
New York City Admin. for Children's Services, 502 Fed.Appx.
23, 27 (2d Cir. Nov.6, 2012) (citing Wilkinson v. Russell, 182
F.3d 89, 106 (2d Cir.1999)).
*15 A plaintiff, however, “ ‘cannot base liability solely
on [a defendant's] supervisory capacity or the fact that he
held the highest position of authority’ within the relevant
governmental agency or department.” Houghton v. Cardone,
295 F.Supp.2d 268, 276 (W.D.N.Y.2003) (quoting Burgess
v. Morse, 259 F.Supp.2d 240, 248 (W.D.N.Y.2003)). Simply
put, “the conclusory assertion that a supervisory official was
personally involved in the deprivation of constitutional rights,
without support factual allegations, is not sufficient to state a
claim under § 1983.” Roberites v. Huff, 2012 WL 1113479, at
* 6 (W.D.N.Y. Mar.30, 2012).
Here, Plaintiffs merely allege that Defendants Orleans
County, the Town, the Village, the Orleans County Sheriff,
the Crime Task Force, the Fire Prevention Office, the
Niagara County Sheriff, Hartford, and Sentinel “were grossly
negligent in training and supervising the individual [sic ]
named defendant officers who arrested the Plaintiff and
fabricated false charges against them with malice, with
respect to the proper exercise of their police powers
in a manner consistent with the Fourth and Fourteenth
Amendments to the Constitution of the United States, and
with the relevant provisions of the Constitution of the State
of New York,” Complaint ¶ 66, that “the negligence of
the defendants in the aforesaid respects was so gross as
to constitute deliberate indifference to the rights of the
Plaintiff[s], id. ¶ 67, and that such Defendants “are vicariously
liable to the Plaintiff for the actions of their employees .... “
Id. ¶ 68. There are, however, no facts alleged to support these
conclusory allegations. See Otis–Wisher v. Medtronic, Inc.,
––– Fed.Appx. ––––, 2015 WL 3557011, at * 2 (2d Cir. June
9, 2015) (conclusory allegations do not satisfy plausibility
requirement under Iqbal ). As such, the Complaint fails to
state a claim for supervisory liability as against Defendants
Orleans County, the Town, the Village, the Orleans County
Sheriff, the Crime Task Force, the Fire Prevention Office, the
Niagara County Sheriff, Hartford, and Sentinel.
2. New York Common Law
Plaintiffs' negligent hiring, supervision and retention claim is
also alleged under New York Law against Orleans County,
the Town, the Village, Albion Police Department, Orleans
County Sheriff, the Crime Task Force, the Fire Prevention
Office, Niagara County Sheriff, Hartford, and Sentinel.
Complaint ¶ 66. “Under New York law, a claim for negligent
hiring, supervision or retention, ‘in addition to the standard
elements of negligence,’ requires ‘a plaintiff [to] 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.” “ Bouchard v. New
York Archdiocese, 719 F.Supp.2d 255, 261 (S.D.N.Y.2010)
(quoting Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d
Cir.2004) (quoting Kenneth R. v. Roman Catholic Diocese
of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791, 792 (2d
Dept.1997)). Here, Plaintiffs have failed to plead any of these
elements.
*16 With regard to the first element, Plaintiffs have failed to
allege that any of the individually named moving Defendants
were in an employee-employer relationship with any of the
other moving Defendants in a supervisory capacity. For
example, none of the individually sued police officers, i.e.,
Doyle, Fuller, Gifaldi, or Hughes, is alleged to be an employee
of any of the sued municipal Defendants. Nor, have Plaintiffs
alleged any facts establishing any supervisory Defendant
knew or should have known that any employee named
as a Defendant had a propensity for the alleged unlawful
conduct. Finally, there is no allegation that any tort was
committed on any supervisory Defendant's property or with
such Defendant's chattels. Accordingly, Plaintiffs' have failed
to allege a claim for negligent hiring, supervision or retention
under New York law.
The Motions to Dismiss should be GRANTED as to Plaintiffs'
Third Claim alleging supervisory liability.
H. Municipal Liability
With regard to the claims against Orleans County, the Town,
and the Village, it is settled that municipalities may not be held
liable under § 1983 solely on the basis of respondeat superior
unless the alleged “deprivation of the plaintiff's rights under
federal law is caused by a governmental custom, policy, or
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usage of the municipality.” Jones v. Town of East Haven,
691 F.3d 72, 80 (2d Cir.2012) (citing Monell v. Department
of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978)). “Absent such a custom, policy, or usage,
a municipality cannot be held liable on a respondeat superior
basis for the tort of its employee.” Id. “[I]t is not enough for a §
1983 plaintiff merely to identify conduct properly attributable
to the municipality. The plaintiff must also demonstrate
that, through its deliberate conduct, the municipality was
the ‘moving force’ behind the injury alleged.” Board of
Commissioners of Bryan County, Oklahoma v. Brown, 520
U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). As
such, municipal liability may be found “when the execution
of a government's policy or custom ... inflicts the injury that
the government as an entity is responsible for under § 1983.”
Monell, 436 U.S. at 691.
Here, Plaintiffs have not alleged that the Town, Village,
or Orleans County maintained any policy pursuant to
which Plaintiffs allegedly were subjected to false arrest and
malicious prosecution or denial of a fair trial. Nor do Plaintiffs
claim such moving Defendants routinely disregard any
applicable policy in making arrests or conducting criminal
prosecutions. Accordingly, insofar as Plaintiffs assert claims
based on respondeat superior against the Town, Village and
County, such claims must be dismissed.
I. Statutory Immunity
The Insurance Defendants assert statutory immunity insofar
as Plaintiffs' claims are based on the release of information
relative to the fire investigation. Insurance Defendants'
Memorandum at 8. As relevant, New York Insurance Law
(“N.Y.Ins.Law”) § 319 (“ § 319”), provides that
*17 Each insurer authorized to issue
policies covering losses incurred to
personal or real property through
fire shall contact the appropriate
law enforcement agency and release
information in its possession resulting
from an investigation conducted by
it pertaining to any such fire loss,
should the insurer be of the opinion
that the fire was caused by other than
accidental means.
N.Y. Ins. Law § 319(b).
Significantly, insurance providers are granted immunity for
all conduct under § 319 pursuant to N.Y. Ins. Law § 3432 (“
§ 3432”), which provides
In the absence of fraud or bad faith,
there shall be no liability on the part
of, and no cause of action of any
nature shall arise against, an insurer ...
or any person acting on their behalf
with respect to obligations and duties
performed pursuant to the sections
referred to in subsection (b) hereof.
N.Y. Ins. Law § 3432(a).
As relevant, such civil or criminal “immunity shall apply
to * * * information, reports, assistance in investigations,
notification, made in the absence of fraud or bad faith, to
any authorized law enforcement agency” pursuant to § 319.
N.Y. Ins. Law § 3432(b)(4). Significantly, the Complaint is
devoid of any allegation that any of the Insurance Defendants
engaged in any fraud or bad faith so as to render the statutory
immunity inapplicable. The Complaint thus fails to state a
claim against the Insurance Defendants.
J. Defendant Savage
Savage is a defendant only to Plaintiffs' New York common
law malicious prosecution claim. Complaint ¶ 54. As
discussed, Discussion, supra, at 22–24 (citing caselaw),
the existence of probable cause, a required element of a
malicious prosecution claim under New York law for which
the Indictment creates a rebuttable presumption, is fatal to this
claim. Furthermore, the Complaint is devoid of any factual
allegations pertaining to Savage and, as such, falls far short
of pleading the requisite malice for a malicious prosecution
claim. The Complaint thus fails to state any claim against
Savage whose motion to dismiss should be GRANTED.
K. Non–Moving Defendants
As stated, Discussion, supra, at 15, the other named
Defendants to this action, including the Albion Fire
Department, Rocco Sidari, Jeremy Grahm, Donald Clawson,
Michael Jutrowski, Adriean Ann Park, and Nicholas Long,
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have not moved to dismiss the Complaint for failure to
state a claim, and the court therefore expresses no opinion
as to whether the claims asserted against the non-moving
Defendants are viable. See Grant v. County of Erie, 542
Fed.Appx. 21, 24 (2d Cir. Oct.17, 2013) (reversing district
court's sua sponte dismissal of action for failure to state a
claim based on failure to provide plaintiff with notice of the
grounds for dismissal and an opportunity to be heard).
L. Dismissal with Prejudice
The moving Defendants seek dismissal of the Complaint with
prejudice. See Insurance Defendants' Motion at 2 (seeking
as relief “an order dismissing the action in its entirety as
to [Insurance Defendants]”); Fire Prevention Defendants'
Memorandum at 7; Altshiler Reply Declaration ¶¶ 5–6
(asserting probable cause requires dismissal of claims in their
entirety); and Savage Reply at 2 (requesting dismissal with
prejudice). Generally, the court “should not dismiss 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).
Nevertheless, where further amendment of the complaint
would be futile, dismissal of the complaint with prejudice to
filing an amended complaint is not an abuse of discretion. See
Van Buskirk v. the New York Times Co., 325 F.3d 87, 92 (2d
Cir.2003) (affirming district court's dismissal of complaint
with prejudice for failure to state a claim where amendment
of complaint would have been futile).
*18 In the instant case, the futility of permitting Plaintiffs to
file an Amended Complaint is discussed below. Discussion,
infra, at 37–49. Accordingly, based on that analysis, the
Motions to Dismiss for failure to state a claim should be
GRANTED as to Prosecuting Defendants, the Insurance
Defendants, Savage, and the Fire Prevention Defendants
against whom the Complaint should be DISMISSED with
prejudice.
3. Motion to Amend
In opposing moving Defendants motions to dismiss, Plaintiffs
move for leave to file an amended complaint which
Plaintiffs assert should be granted because the “more detailed
description of the Defendants [sic ] culpable conduct is
provided in the [Proposed] Amended Complaint apprising
each defendant of its specific acts and omissions presented
in this litigation and will provide judicial economy for
the Court and litigants.” Plaintiffs' Memorandum at 11.
Plaintiffs further argue that should leave to amend be granted,
Defendants will not suffer any substantial prejudice, nor is
Plaintiff's Motion brought for undue delay, in bad faith, or for
any dilatory motive. Id. at 11–12. Moving Defendants argue
in opposition that Plaintiffs' Proposed Amended Complaint
fails to cure the deficiencies in the Complaint such that
Plaintiffs' Motion is futile and should be denied. In particular,
Prosecuting Defendants argue that the Proposed Amended
Complaint fails to allege facts rebutting the presumption of
probable cause attributed to the Indictment and truncating
the false arrest and malicious prosecution claims against
the Prosecuting Defendants, and also fails to allege facts
supporting any claim for negligent hiring, supervision or
retention, Altshiler Reply Declaration ¶¶ 4–6; Amended
Altshiler Reply Declaration ¶¶ 8–10, and that insofar as
Plaintiffs seek to allege Defendant Gifaldi “testified falsely”
and “vaguely allege that ‘defendants [sic ] own investigation
proved their testimony would be false,’ “ Amended Altshiler
Reply Declaration ¶ 4, witnesses, including law enforcement
officials, are absolutely immune from liability for testimony,
even if such testimony is perjured. Id. ¶¶ 5–6. Defendant
Savage argues in opposition to Plaintiffs' Motion that the
Proposed Amended Complaint is devoid of any allegation of
wrongdoing against Savage and contains only an admission
that Savage committed no tort. Savage Reply at 3–4.
In opposition to Plaintiffs' Motion, Insurance Defendants
argue the Proposed Amended Complaint fails to cure any
of the group-pleading and vagueness deficiencies of the
Complaint, Insurance Defendants' Reply at 3–4, also fails
to address Insurance Defendants' statutory immunity under
New York law, id. at 4, and thus is futile. Id. at 4–
7. The Fire Prevention Defendants argue in opposition to
Plaintiffs' Motion that the Proposed Amended Complaint
fails to allege any involvement by Defendant Shadic with
the fire investigation and subsequent prosecution, Calhoun
Reply Declaration ¶¶ 6–8, alleges only that Defendant Holter
was involved in the fire investigation, id. ¶ 9, and did not
conduct a proper arson investigation but instead “rubber-
stamped” Gifaldi's investigation which fails to allege the
malice required for a malicious prosecution. Id. ¶ 10. Fire
Prevention Defendants further argue that Proposed Amended
Complaint's lack of any allegation that Shadic or Holter
was personally involved in any constitutional deprivation
against Plaintiffs also precludes any supervisory liability
claim against Defendant Fire Prevention Office.
*19 Under Fed.R.Civ.P. 15(a), leave to amend “shall be
freely given when justice so requires.” Foman v. Davis, 371
U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Burns
v. Imagine Films Entertainment, Inc., 165 F.R.D. 381, 384
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(W.D.N.Y.1996) (quoting Fed.R.Civ.P. 15(a)). Therefore, “an
amended pleading may be filed pursuant to Rule 15(a) where
the new allegations do not unduly prejudice an opponent, are
not the result of undue delay or bad faith, and are not futile.”
Warren v. Goord, 2006 WL 1582385, at * 7 (W.D.N.Y. May
26, 2006). Further, “[a]n amendment to a pleading is futile if it
could not withstand a motion to dismiss under Rule 12(b)(6).”
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals,
282 F.3d 83, 88 (2d Cir.2002). In ruling on a motion under
Rule 12(b)(6), and, thus, in considering the plausibility of
a proposed amended pleading, the court may consider only
“the fact as asserted within the four corners of the complaint,
the documents attached to the complaint as exhibits, and any
documents incorporated into the complaint by reference.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191
(2d Cir.2007). Here, Defendant Savage filed in support of
his motion to dismiss 14 exhibits, including copies of the
Investigative Report and its accompanying photographs, as
well as the Supplementary Report, both of which the court
may consider because Plaintiffs have referenced them in their
Proposed Amended Complaint. See Avon Pension Fund v.
GlaxoSmithKline PLC, 343 Fed .Appx. 671, * 3 n. 2 (2d
Cir. Aug.24, 2009) (considering, on motion seeking leave
to file amended complaint filed in opposition to motion to
dismiss complaint, the transcript of physician's testimony not
attached to proposed amended complaint but incorporated by
reference).
In the instant case, moving Defendants do not argue that
permitting Plaintiffs to file an amended complaint will result
in any undue prejudice, undue delay, or bad faith; rather,
moving Defendants maintain that Plaintiffs' Motion should
be denied on the ground of futility because the Proposed
Amended Complaint, like the Complaint, fails to state a claim
for which relief can be granted. Here, a thorough reading
of the Proposed Amended Complaint establishes that it fails
to cure the defects of the Complaint, such that Plaintiffs'
Motion should be denied as to the Prosecuting Defendants,
the Insurance Defendants, Defendant Savage, and the Fire
Prevention Defendants that have opposed Plaintiffs' Motion.
1. Prosecuting Defendants
The Proposed Amended Complaint asserts against the
Prosecuting Defendants claims for common law false arrest,
malicious prosecution, negligent hiring, and supervision,
and retention, as well as § 1983 violations for false arrest,
malicious prosecution and denial of a fair trial. The Proposed
Amended Complaint, as discussed in connection with the
Complaint, Discussion, supra, at 17–18, fails to establish
any basis upon which Defendants Orleans County Sheriff,
the Crime Task Force, the Albion Police, and the Niagara
County Sheriff may be sued given that such Defendants, as
administrative arms of municipal corporations, do not exist
separate and apart from the municipality and thus do not have
their own legal identity. Laboy, ––– F.Supp.3d at ––––; 2015
WL 1977251, at * 6 (W.D.N.Y. May 4, 2015).
*20 With regard to Defendants Orleans County, the
Town, the Village, Doyle, Fuller, Gifaldi, and Hughes, as
discussed, Discussion, supra, at 22–24, the Indictment creates
a rebuttable presumption of probable cause that defeats
the common law and § 1983 false arrest and malicious
prosecution claims. Significantly, Plaintiffs do not describe
what was put before the Grand Jury that Plaintiffs maintain
was false or fraudulent and the Proposed Amended Complaint
is devoid of any factual allegations that any Defendant cajoled
or importuned any witness to appear to testify untruthfully
before the Grand Jury so as to obtain the Indictment. See
Rohman v. New York City Transit Authority (N.Y.CTA),
215 F.3d 208, 217 (2d Cir.2000) (defendant to malicious
prosecution claim must be shown to have knowingly provided
false or fabricated evidence or importuned authorities to act).
The Proposed Amended Complaint also lacks reasonable
clarity as to whether Plaintiffs assert any moving Defendant
was responsible for submitting the Investigative Reports to
the Grand Jury as evidence on which the Grand Jury could
indict Plaintiffs. Nevertheless, that Plaintiffs sue Savage,
whose only participation in the events leading to Plaintiffs'
arrest and prosecution is the preparation of the Investigative
Reports, strongly implies Plaintiffs' believe the Investigative
Reports were presented to the Grand Jury.
Nor is the Investigative Report inconsistent with a finding
of probable cause, the absence of which is a necessary
element of the false arrest and malicious prosecution claims.
In particular, the Investigative Report states the Albion Police
initially listed the fire's cause as “undetermined pending
further investigation.” Investigative Report at 2. Savage
determined the fire's origin was located near the rear wall of
the shop's office near Harris's desk and a large sofa where
most of the fire damage had occurred. Id. at 3. Although the
remains of a medium sized red plastic trash can with “fire/
melt damage” and which had “melted into itself,” was found
in front of Wright's desk instead of in its regular location
between Harris's desk and the large sofa, id., the caption to
Photo 52 depicting the red plastic trash can indicates the
trash can may have been kicked by fire department personnel
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while extinguishing the fire. An electrical cause of the fire,
as Plaintiffs urge, Proposed Amended Complaint ¶¶ 45–47, is
inconsistent with Savage's determination that “[e]xamination
of structural electrical conductors and receptacles showed no
arc damage or any indication of being related to the cause
of the fire,” Investigative Report at 3, and that a power strip
on the floor near Harris's desk “sustained total fire damage”
although Harris “stated it was not plugged in or being used.”
Id.
Further, the Investigative Report contains a motive for arson.
In particular, when interviewed by Savage, both Harris and
Wright reported the shop was having financial difficulties
and Wright further stated he had personally borrowed $
70,000 for the shop. Investigative Report at 4. It is noted in
the Investigative Report that Plaintiffs' inability after being
notified of the fire to return to the shop for 30 to 40 minutes
because Plaintiffs “had to find a ride” was inconsistent with
Plaintiffs' statements to Savage that Wright drove Plaintiff
to her home where they both remained until learning of the
fire. Id. at 5. The statement given by both Harris and Wright
that the shop's rear door “could be secured with a good slam
shut,” id. at 4, is inconsistent with the finding that the door's
striker plate was “very loose” such that “[t]he plunger was
not able to seat properly in the striker plate and could easily
move. Id. at 3. Moreover, although the Investigative Report
does not contain a conclusive determination of the cause of
the fire, the Investigative Report states that “incendiary was
not eliminated,” id. at 4, and the Supplemental Report states
that “incendiary still not eliminated.” Supplemental Report
at 1. It is significant that Plaintiffs do not challenge the
accuracy of the Investigative or Supplemental Reports, nor
do Plaintiffs attribute any part of the reports to fraud or bad
faith. The Investigative Report and the Supplemental Report
thus are not inconsistent with probable cause supporting both
the Indictment and the subsequent arrest and prosecution
of Plaintiffs. Thus, the Proposed Amended Complaint does
not plausibly allege that any of the Prosecuting Defendants
was responsible for the malicious prosecution of Plaintiffs as
Plaintiffs allege, and is therefore futile.
*21 With regard to Defendant Doyle, the Proposed
Amended Complaint alleges only that Doyle failed to report
Mesita's observation that she perceived an electrical fire odor
at the scene of the fire. Proposed Amended Complaint ¶¶
45–47. Such allegations, however, assert a claim of negligent
investigation which is not recognized under New York law,
see McCray v. City of New York, 2007 WL 4352748, at *
29 (S.D.N.Y. Dec.11, 2007) (citing Jenkins v. City of New
York, 1992 WL 147647 at * 8 (S.D.N.Y. June 15, 1992)
(citing Pandolfo v. U.A. Cable Systems, 171 A.D.2d 1013,
568 N.Y.S.2d 981, 982 (4th Dept.1991))), nor is negligent
investigation a basis for § 1983 liability in the absence
of some special relationship creating an affirmative duty.
See, e.g., Daniels v. Williams, 474 U.S. 327, 332–33 (1986)
(negligent inaction will not suffice to establish a constitutional
violation because Due Process clause is not implicated by a
state official's negligent act causing unintended loss or injury
to life, liberty, or property). See also Daniels, 474 U.S. at 332–
33.
The Proposed Amended Complaint fails to set forth any
allegation of unlawful conduct undertaken by Defendants
Fuller and Hughes. Rather, Fuller is alleged to have conducted
interviews of Harris and Wright at the Albion Police Station,
Proposed Amended Complaint ¶ 49, which interview of
Wright was subsequently lost by unidentified Albion Police,
Proposed Amended Complaint ¶ 49, and both Fuller and
Hughes are alleged to have informed Harris that the shop's
security “DVR was sent out for testing to obtain the images
captured on it during [ ] the evening in question,” but “the
Albion Police Department and its investigators failed to
safeguard this important piece of exculpatory evidence.” Id.
¶ 72. Both of these allegations assert, at most, the Fuller
was negligent in investigating the fire which, as discussed,
Discussion, supra, at 43–44, is not a ground for liability under
either state law or § 1983.
Defendant Gifaldi is named as a Defendant in the Proposed
Amended Complaint's common law and § 1983 false arrest
and malicious prosecution claims. As discussed, Discussion,
supra, at 22–24, the Indictment creates a presumption of
probable cause that is a complete defense to these claims,
and none of the proposed factual allegations against Gifaldi
rebuts the presumption. Specifically, Gifaldi is alleged to
have failed to secure video footage from a security DVR
which would have established Plaintiffs did not set the fire,
Proposed Amended Complaint ¶ 71, but such failure, if true,
constitutes investigatory negligence which is insufficient to
sustain liability for false arrest and malicious prosecution
under New York law or § 1983. See Daniels, 474 U.S. at
332–33 (negligent inaction not actionable under § 1983);
McCray, 2007 WL 4352748, at * 29 (negligent investigation
not recognized under New York law). Gifaldi is also alleged
to have “interviewed witnesses of known doubtfulness,” and
provided false Grand Jury testimony to secure the Indictment,
Proposed Amended Complaint ¶ 74, embellished his job title
at the trial, claiming to be a “Level II” arson investigator
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when no such designation exists, id. ¶ 75, and also falsely
testified at trial that he failed to take any contemporaneous
hand written notes which was contradicted by witnesses who
reported observing Gifaldi taking notes. Id. ¶ 76. A law
enforcement officer is absolutely immune from under § 1983
based on perjurious testimony either before the Grand Jury
or given at trial. Coggins v. Buonora, 776 F.3d 108, 112
(2d Cir.2015) (citing Rehberg v. Paulk, –––U.S. ––––, 132
S.Ct. 1497, 1506, 182 L.Ed.2d 593 (2012)). Further, Plaintiffs'
assertions that Gifaldi coerced Defendants Adrian Parks
(“Parks”), and Michael Jutrowski (“Jutrowski”), into falsely
testifying against Plaintiffs, Proposed Amended Complaint
¶¶ 61–63, is negated by the assertion that “Defendants' own
investigation provided [the testimony of Parks and Jutrowski]
would be false and conflicted with the statements given by
these witnesses.” Id. ¶ 64. The Proposed Amended Complaint
thus fails to state a claim against Gifaldi.
*22 Accordingly, Plaintiffs' motion is DENIED as to the
Prosecuting Defendants.
2. Insurance Defendants
Insurance Defendants are listed as Defendants in the
Proposed Amended Complaint's state common law malicious
prosecution claim and negligent hiring, supervision and
retention claims. Insurance Defendants are correct, Insurance
Defendants' Reply at 3–4, that the Proposed Amended
Complaint fails to cure any of the group-pleading and
vagueness deficiencies of the Complaint. See Discussion,
supra, at 28–29. In particular, the Proposed Amended
Complaint's allegations against the Insurance Defendants
assert only that the Insurance Defendants never determined
the fire's cause, Proposed Amended Complaint ¶ 39 (“the
cause of the fire was never determined.”), but that someone
else alerted law enforcement that Plaintiffs intentionally
started the fire. Id. ¶ 51 (“defendant Donald Clawson tipped
off police Wright committed arson and burned down Harris's
shop. Records indicate Clawson contacted Crime Stoppers
and was seeking reward money for his lead.”), and ¶ 52
(“Clawson contacted the Albion Police Department and/
or Orleans County Sheriff and/or Hartford Insurance Co.
and told these agencies and the insurance company David
Wright committed arson and burned down Harris's shop.”).
No liability for malicious prosecution can be attributed to the
Insurance Defendants based on the failure to determine the
cause of the fire.
Nor is there any allegation that the Insurance Defendants
improperly importuned or cajoled any law enforcement
officers or the prosecutor to charge Plaintiffs. Rohman, 215
F.3d at 217 (defendant must have played an “ ‘active role in
the prosecution, such as giving advice and encouragement or
importuning the authorities to act). Although the Proposed
Amended Complaint asserts Nassivera, when testifying at
trial, “intentionally misused tape recorded statements of
the Plaintiffs,” which “contained many inaudible portions
and Nassivera filled in the blanks during his testimony
with slanted interpretations” because Nassivera, as Hartford's
agent “was motivated to sabatoge Plaintiff Harris'[s] fire
claim in any manner he could,” Proposed Amended
Complaint ¶ 73, Nassivera's trial testimony, even if perjured,
is entitled to absolute immunity. Coggins, 776 F.3d at 112
(citing Rehberg, 132 S.Ct. at 1506).
Moreover, the Proposed Amended Complaint fails to avoid
the Insurance Defendants' statutory immunity pursuant to §
3432(a) and (b)(4). Significantly, Plaintiffs failed to allege
any fraud or bad faith on the part of the Insurance Defendants
as to the “information, reports, assistance in investigations,
[and] notifications” as required to avoid the applicable
immunity. Even if the Insurance Defendants relied in some
way on a source, Clawson, as a person of dubious credibility,
such reliance is insufficient to support a malicious prosecution
claim. See Husbands v. City of New York, 2007 WL 2454106,
at * 8 (S.D.N.Y. Aug.16, 2007) (holding with regard to false
arrest and malicious prosecution claims that questionable
credibility of witness's testimony “does not vitiate the basis
for probable cause”).
*23 Accordingly, Plaintiffs' Motion is DENIED on the basis
of futility as to Insurance Defendants against whom the
Proposed Amended Complaint fails to state a claim.
3. Defendant Savage
Savage is named in the Proposed Amended Complaint as
a Defendant only to the malicious prosecution claim under
New York common law. Proposed Amended Complaint ¶
103. The Proposed Amended Complaint asserts only that
Savage, working on contract with Hartford, performed a
forensic investigation of the fire to determine the fire's
origin and cause and prepared a report regarding the
investigation in which Savage concluded the fire's origin was
along the shop's office's rear wall, that the ignition source,
the first material ignited, and the ignition sequence were
“unknown,” such that the fire's “cause classification” was
“undetermined with incendiary not eliminated.” Proposed
Amended Complaint ¶ 65. Even upon being provided
additional fire debris samples one of which, upon laboratory
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analysis, was positive for fire accelerant “consistent with
a ‘medium petroleum distillate’ such as mineral spirits,
some paint thinners, and some charcoal starters,” Savage did
not consider the findings sufficiently significant to support
altering her original conclusion that the fire's cause was
undetermined. Id. ¶ 67. Nothing within these allegations
plausibly implies that Savage engaged in any fraud or bad
faith so as to subject Savage to any liability in connection
with Plaintiffs' arrest and criminal prosecution for the fire. See
Otis–Wisher, 2015 WL 255701, at *1 (to withstand dismissal
allegation must plausibly establish defendant's liability). Even
assuming, arguendo, the New York and § 1983 claims for
false arrest and malicious prosecution could be brought
against Savage, a private actor, see Velez v. Levy, 401 F.3d
75, 84 (2d Cir.2005) (§ 1983 liability requires defendant
act under color of state law), Savage's conclusion in the
Investigative Report and the fire's cause was “undetermined
with incendiary not eliminated,” a conclusion favorable to
Plaintiffs, simply cannot be the basis for any such claims.
Plaintiffs' Motion thus is DENIED as to Savage.
4. Fire Prevention Defendants
The Proposed Amended Complaint's malicious prosecution
claim is asserted against all Fire Prevention Defendants,
Proposed Amended Complaint ¶ 103 (Holter and Shadic),
and ¶ 109 (Fire Prevention Office), and the negligent
hiring, supervision and retention claim is asserted against
Fire Prevention Office. Id. ¶¶ 112, 115, and 117. Insofar
as the Proposed Amended Complaint fails to allege any
involvement by Defendant Shadic with the fire investigation
and subsequent prosecution, it fails to state a claim as
against Shadic and is therefore futile. The Proposed Amended
Complaint's allegation that Defendant Holter was involved in
the fire investigation, id. ¶ 9, and did not conduct a proper
arson investigation but instead “rubber-stamped” Gifaldi's
investigation, id. ¶ 10, fails to plead the requisite element
of malice for a malicious prosecution claim because it, at
most, asserts a claim for negligent investigation which, as
discussed, Discussion, supra, at 43–44, does not support a
false arrest or malicious prosecution claim. Further, absent
any claim stated against either Shadic or Holter, there
is no basis for finding Shadic or Holter was personally
involved in either the alleged malicious prosecution of
Plaintiffs, such that the Fire Prevention Office cannot be
held liable for negligent hiring, supervision or retention of
these individual Defendants. See Bouchard, 719 F.Supp.2d
at 261 (“A cause of action for negligent hiring or retention
requires allegations that the employer ... failed to investigate
a prospective employee notwithstanding knowledge of ‘facts
that would lead a reasonably prudent person to investigate that
prospective employee.’ “ (quoting Richardson v. City of New
York, 2006 WL 3771115, at *3 (S.D.N.Y. Dec.21, 2006))).
*24 Plaintiffs' Motion is DENIED as to the Fire Prevention
Defendants.
5. Non-moving Defendants
Although Plaintiffs' Motion is DENIED with regard to
the Prosecuting Defendants, the Insurance Defendants,
Defendant Savage, and the Fire Prevention Defendants and,
assuming the District Judge agrees with the undersigned's
recommendation that the action be dismissed as against
the moving Defendants for failure to state a claim,
the non-moving Defendants have not opposed Plaintiffs'
Motion seeking leave to file the Proposed Amended
Complaint which, despite failing to cure the deficiencies
of the Complaint, does provide additional facts which are
helpful to understand Plaintiffs' claims. Accordingly, insofar
as Plaintiffs' Motion is unopposed by the non-moving
Defendants, Plaintiffs' Motion is GRANTED as to these non-
moving Defendants. Plaintiffs are directed to file within ten
(10) days the Amended Complaint only asserting claims
against the non-moving Defendants, but should not attempt
to re-plead the claims that for which dismissal with prejudice
is recommended as to the moving Defendants. Nothing in
the foregoing Report and Recommendation and Decision and
Order is intended to indicate how the court may rule on any
possible motions by nonmoving Defendants addressed to the
Amended Complaint.
CONCLUSION
Based on the foregoing, the Prosecuting Defendants' Motion
(Doc. No. 22) should be GRANTED in part and DENIED
in part; the Insurance Defendants' Motion (Doc. No. 28)
should be GRANTED; Savage's Motion (Doc. No. 30) should
be GRANTED insofar as it seeks to dismiss the Complaint
for failure to state a claim and is DISMISSED as moot as
to the alternative request for summary judgment; and the
Fire Prevention Defendants' Motion (Doc. No. 36) should
be GRANTED; Plaintiffs' Motion is GRANTED in part and
DENIED in part.
SO ORDERED as to Plaintiff's Motion to Amend and
Savage's Motion for Summary Judgment.
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ORDERED that this Report and Recommendation be filed
with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation
must be filed with the Clerk of the Court within fourteen
(14) days of service of this Report and Recommendation in
accordance with the above statute, Rules 72(b), 6(a) and 6(d)
of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal
the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106
S.Ct. 466, 88 L.Ed.2d 435 (1985); Small v. Secretary of Health
and Human Services, 892 F.2d 15 (2d Cir.1989); Wesolek v.
Canadair Limited, 838 F.2d 55 (2d Cir.1988).
Let the Clerk send a copy of this Report and Recommendation
to the attorneys for the Plaintiffs and the Defendants.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 5316410
Footnotes
1 Although Defendants' motions to dismiss are dispositive, while Plaintiffs' motion to amend is nondispositive,
the undersigned addresses all pending motions in this combined Report and Recommendation/Decision and
Order in the interest of judicial economy.
2 Plaintiffs do not specify which Defendants appeared before the Grand Jury.
3 Exh. A.
4 Why the criminal charges were dismissed against Harris is not stated in the record.
5 “Tattoo flash” refers to “common designs, usually drawn on paper or cardboard and displayed prominently
on the walls or in binders in tattoo shops.” What is Tattoo Flash?, available at http://tattoo.about.com/od/t
attoosartandphotoss/fl/What-is-Tattoo-Flash.htm, last visited September 9, 2015.
6 Holler is not named as a Defendant in either the Complaint or in the Proposed Amended Complaint.
7 PT & C is not named as a defendant to this action.
8 Savage's Exh. 2–b (Doc. No. 30–7) at 26.
9 Unless otherwise indicated, all bracketed material has been added.
10 Savage's Exh. 5 (Doc. No. 31).
11 Inasmuch as the Crime Task Force is not a suable entity, see Discussion, infra, at 17–18, the action should
be dismissed as to this Defendant, and the issue of service on the Crime Task Force, the manner of which
Prosecuting Defendants do not challenge, is academic.
12 Fire Prevention Defendants did not similarly argue in support of dismissal that the Fire Prevention Office also,
as an administrative arm of the state, similarly lacks the capacity to be sued.
13 Although an indictment subsequent to an arrest does not give rise to a presumption of probable cause
to defeat a false arrest claim, Broughton v. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, 313
(N.Y.1975) (holding arraignment and subsequent indictment of defendant did not generate presumption of
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probable cause to support arrest), in the instant case, according to the Complaint, Plaintiffs were indicted prior
to the arrest. Complaint ¶ 39 (“as a result of said indictment the Plaintiffs were both arrested and deprived of
their liberty ....”). An arrest is privileged if based on probable cause in accord with the fourth element under
New York law. See Bernard, 25 F.3d at 102 (affirming district court's grant of summary judgment in favor of
government on plaintiff's false arrest claim where the only element in dispute, i.e., that the confinement was
privileged, was established by the existence of probable cause to support the arrest).
14 Savage moved, in the alternative, for summary judgment. Based on the court's recommendation that the
Complaint be dismissed as to Savage, Savage's alternative motion for summary judgment is DISMISSED
as moot.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Ying Li v. City of New York, 246 F.Supp.3d 578 (2017)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Jorgensen v. County of Suffolk, E.D.N.Y., September
1, 2021
246 F.Supp.3d 578
United States District Court, E.D. New York.
YING LI, Plaintiff,
v.
The CITY OF NEW YORK, Det. Matthew Degnan,
Lt. Thomas Conforti, Det. David Moser, Lt. John
Perdoch, Det. John Phelan, P.O. Yatyu Yam, Sgt.
Guisella Rodriguez, Lt. Arthur Hall, Det. Michael
Heffernan, Sgt. Timothy Cai, Det. Douglas Lee, Det.
Dennis Chan, Sgt. “FNU” Manfredi (“First Name
Unknown”), ADA P. Leigh Bishop, Dr. Kristen
Landi, “John Does 1–15” (Names Fictitious and
Presently Unknown), Dr. Fernanda Kupferman,
and Flushing Hospital Medical Center, Defendants.
15–CV–1599 (PKC)
|
Signed 03/31/2017
Synopsis
Background: Arrestee brought § 1983 action against city,
city employees, including police officers who allegedly
investigated her, county assistant district attorney, and
hospital and one of its employees, alleging that she was
wrongfully accused of being responsible for the death of her
infant daughter. Defendants filed motions to dismiss.
Holdings: The District Court, Pamela K. Chen, J., held that:
[1] arrestee adequately alleged that officer participated in the
initiation of arrestee's criminal proceeding, as required to state
malicious prosecution claim;
[2] arrestee adequately alleged that physician participated in
the initiation of arrestee's criminal proceeding, as required to
state malicious prosecution claim;
[3] arrestee sufficiently alleged a favorable termination for
purposes of her malicious prosecution claim;
[4] arrestee's malicious abuse of process claim accrued, and
three-year statute of limitations began to run, when criminal
case against arrestee was dismissed;
[5] arrestee failed to state claim for failure to intervene;
[6] arrestee's allegations were sufficient to support conspiracy
claim; and
[7] arrestee's allegations were sufficient to support claim for
unreasonably prolonged detention.
Motions granted in part and denied in part.
Procedural Posture(s): Motion to Dismiss; Motion to
Dismiss for Failure to State a Claim.
West Headnotes (128)
[1] Federal Civil Procedure Matters
considered in general
In considering defendants' motion to dismiss
for failure to state a claim in § 1983 action
brought by arrestee against, inter alia, city and
its employees alleging that she was wrongfully
accused of being responsible for the death of
her infant daughter, district court would consider
criminal complaint against arrestee, given that
arrestee's amended complaint in § 1983 action
repeatedly referred to the criminal complaint,
and therefore incorporated it by reference. 42
U.S.C.A. § 1983; Fed. R. Civ. P. 12(b)(6).
1 Case that cites this headnote
More cases on this issue
[2] Evidence Cities, towns, townships, and
villages
Evidence Particular Cases
District court would take judicial notice
of indictment, transcript of criminal court
conference, and two press releases in § 1983
action brought by arrestee against, inter alia,
city and its employees alleging that she was
wrongfully accused of being responsible for the
death of her infant daughter, for the limited
purpose of establishing their existence and legal
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effect, and determining the statements that they
contained without considering the truth of those
statements; the criminal court records and the
press releases related to arrestee's allegations that
the criminal case was terminated favorably to her
and the date on which the criminal charges were
dropped. 42 U.S.C.A. § 1983.
4 Cases that cite this headnote
More cases on this issue
[3] Evidence Notice not taken
District court declined to take judicial notice
of grand jury minutes in underlying criminal
proceeding in § 1983 action brought by arrestee
against, inter alia, city and its employees alleging
that she was wrongfully accused of being
responsible for the death of her infant daughter,
given that city sought to rely on the substance and
truth of the testimony set forth in those minutes,
and not just the fact of the testimony being given
or the date on which it was given. 42 U.S.C.A.
§ 1983.
More cases on this issue
[4] Civil Rights Substantive or procedural
rights
Section 1983 itself creates no substantive rights;
it provides only a procedure for redress for
the deprivation of federal rights established
elsewhere. 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[5] Civil Rights Nature and elements of civil
actions
To state a claim under § 1983, a plaintiff must
plausibly allege (1) that the defendants deprived
him of a right secured by the Constitution or laws
of the United States, and (2) that they did so
under color of state law. 42 U.S.C.A. § 1983.
8 Cases that cite this headnote
[6] Civil Rights Color of Law
As a general matter, liability under § 1983 is
proper only with respect to individuals acting
under “color of state law,” i.e., state actors, or
individuals acting in concert with a state actor.
42 U.S.C.A. § 1983.
[7] Civil Rights Persons Liable in General
An individual defendant is not liable under §
1983 absent personal involvement. 42 U.S.C.A.
§ 1983.
5 Cases that cite this headnote
[8] Civil Rights Complaint in general
Pleadings that do not differentiate which
individual defendant was involved in the
unlawful conduct are insufficient to state a claim
under § 1983. 42 U.S.C.A. § 1983.
53 Cases that cite this headnote
[9] Civil Rights Criminal law enforcement;
prisons
Arrestee failed to allege personal involvement in
criminal proceedings required to maintain action
under § 1983 against police officers, alleging that
she was wrongfully accused of being responsible
for the death of her infant daughter; arrestee
did not allege that any of the officers had even
a minimal role in arresting, investigating, or
prosecuting her. 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[10] Civil Rights Vicarious or respondeat
superior liability in general
Individual defendant may not be held liable
under § 1983 merely by his connection to the
events through links in the chain of command. 42
U.S.C.A. § 1983.
2 Cases that cite this headnote
[11] Civil Rights Arrest and detention
A claim for false arrest under § 1983, resting
on the Fourth Amendment right to be free from
unreasonable seizures, including arrest without
probable cause, is substantially the same as that
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under New York law. U.S. Const. Amend. 4;
N.Y.McKinney's Const. Art. 1, § 12; 42 U.S.C.A.
§ 1983.
4 Cases that cite this headnote
[12] Federal Courts Constitutional rights, civil
rights, and discrimination in general
In analyzing § 1983 claims for false arrest, courts
generally look to the law of the state in which
the arrest occurred. U.S. Const. Amend. 4; 42
U.S.C.A. § 1983.
3 Cases that cite this headnote
[13] False Imprisonment Nature and Elements
of False Imprisonment
Under New York law, a false arrest claim
requires a plaintiff to show that the defendant
intentionally confined him without his consent
and without justification.
4 Cases that cite this headnote
[14] False Imprisonment Nature and form of
remedy
Pursuant to New York law, false arrest and false
imprisonment are synonymous.
5 Cases that cite this headnote
[15] Civil Rights Time to Sue
Federal Courts Civil rights and
discrimination cases
Statute of limitations for § 1983 claims filed in
federal court in New York is determined by New
York State's statute of limitations for personal
injury actions. 42 U.S.C.A. § 1983; N.Y. CPLR
§ 214.
4 Cases that cite this headnote
[16] Federal Courts Computation and tolling
While the applicable limitations period of a §
1983 cause of action is determined by state law,
the accrual date is a question of federal law. 42
U.S.C.A. § 1983.
[17] Limitation of Actions Civil rights
Under federal law, a § 1983 false arrest claim
accrues at the time that the alleged false arrest
ends, i.e., when the arrestee becomes held
pursuant to legal process, for example, when he
is bound over by a magistrate or arraigned on
charges. 42 U.S.C.A. § 1983.
6 Cases that cite this headnote
[18] Limitation of Actions Civil rights
Arrestee's § 1983 false arrest claim against, inter
alia, city and its employees alleging that she was
wrongfully accused of being responsible for the
death of her infant daughter accrued, and three-
year statute of limitations began to run, when
arrestee made her initial appearance in state court
or when she was arraigned on the indictment. 42
U.S.C.A. § 1983; N.Y. CPLR § 214.
More cases on this issue
[19] Limitation of Actions Concealment of
Cause of Action
Limitation of Actions Suspension or stay
in general; equitable tolling
Doctrine of equitable tolling is not limited to
fraudulent concealment.
1 Case that cites this headnote
More cases on this issue
[20] Limitation of Actions Estoppel to rely on
limitation
Equitable estoppel is applicable where the
plaintiff knew of the existence of the cause
of action, but the defendant's conduct caused
plaintiff to delay in bringing suit.
[21] Limitation of Actions Concealment of
Cause of Action
Limitation of Actions Suspension or stay
in general; equitable tolling
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Under doctrine of equitable tolling based
on fraudulent concealment, when a defendant
fraudulently conceals the wrong, the statute
of limitations does not begin running until
the plaintiff discovers, or by the exercise of
reasonable diligence should have discovered, the
cause of action.
1 Case that cites this headnote
More cases on this issue
[22] Limitation of Actions What constitutes
concealment
Limitation of Actions Suspension or stay
in general; equitable tolling
To benefit from doctrine of equitable tolling
based on fraudulent concealment, the plaintiff
must submit non-conclusory evidence of
conspiracy or other fraudulent wrong which
precludes his possible discovery of harms that he
suffered.
1 Case that cites this headnote
More cases on this issue
[23] Limitation of Actions Suspension or stay
in general; equitable tolling
Arrestee's conclusory allegation that defendants'
fraud, misrepresentation, and deception,
prevented her from filing a timely § 1983
false arrest claim against, inter alia, city and
its employees alleging that she was wrongfully
accused of being responsible for the death of
her infant daughter were insufficient to support
equitable tolling of three-year limitations period.
42 U.S.C.A. § 1983; N.Y. CPLR § 214.
More cases on this issue
[24] Malicious Prosecution Nature and
elements of malicious prosecution in general
To establish a malicious prosecution claim under
New York law, 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.
23 Cases that cite this headnote
[25] Civil Rights Criminal prosecutions
In establishing a violation of a Fourth
Amendment right in relation to a § 1983
malicious prosecution claim, a plaintiff must
demonstrate a sufficient post-arraignment
deprivation of liberty. U.S. Const. Amend. 4; 42
U.S.C.A. § 1983.
2 Cases that cite this headnote
[26] Civil Rights Criminal prosecutions
The Fourth Amendment right implicated in
a § 1983 malicious prosecution claim is the
right to be free of unreasonable seizure of the
person, i.e., the right to be free of unreasonable
unwarranted restraints on personal liberty. U.S.
Const. Amend. 4; 42 U.S.C.A. § 1983.
3 Cases that cite this headnote
[27] Malicious Prosecution Instigation of or
participation in prosecution
In a malicious prosecution claim under New
York law, to initiate or continue a criminal
proceeding, a defendant must do more than
report the crime or give testimony; he must play
an active role in the prosecution, such as giving
advice and encouragement or importuning the
authorities to act.
11 Cases that cite this headnote
[28] Malicious Prosecution Presumptions and
burden of proof
In a malicious prosecution claim under New
York law, an active role in prosecution is inferred
when a defendant had the plaintiff arraigned,
filled out a complaining and corroborating
affidavit, or signed a felony complaint.
9 Cases that cite this headnote
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[29] Malicious Prosecution Instigation of or
participation in prosecution
Defendant could have initiated a prosecution,
for purposes of a malicious prosecution claim
under New York law, by creating material, false
information and forwarding that information
to a prosecutor or by withholding material
information from a prosecutor.
15 Cases that cite this headnote
[30] Civil Rights Criminal prosecutions
Civil Rights Criminal law enforcement;
prisons
Arrestee's allegations that police officer swore
to criminal complaint accusing her of being
responsible for the death of her infant
daughter adequately alleged that officer initiated
prosecution, as required to state malicious
prosecution claim against officer under § 1983.
U.S.C.A. Const. Amend. 4; 42 U.S.C.A. § 1983.
3 Cases that cite this headnote
[31] Civil Rights Criminal prosecutions
Civil Rights Criminal law enforcement;
prisons
Arrestee's allegations that physician employed
by city who swore under oath in criminal
complaint against her, which accused her of
being responsible for the death of her infant
daughter, and made assertions that were false
and “unsupportable by any medical science or
clinical or forensic evidence,” adequately alleged
that physician participated in the initiation
of arrestee's criminal proceeding, as required
to state malicious prosecution claim against
physician under § 1983. U.S.C.A. Const. Amend.
4; 42 U.S.C.A. § 1983.
[32] Malicious Prosecution Mode of
Termination
Under New York law, there are two ways to
establish a favorable termination, for purposes
of a malicious prosecution claim: (1) an
adjudication of the merits by the tribunal in
the prior action, or (2) an act of withdrawal or
abandonment on the part of the party prosecuting
the prior action.
2 Cases that cite this headnote
[33] Malicious Prosecution Mode of
Termination
Fact that a criminal prosecution never reached
the merits does not preclude a plaintiff from
alleging a favorable termination, for purposes of
a malicious prosecution claim under New York
law.
7 Cases that cite this headnote
[34] Malicious Prosecution Mode of
Termination
New York law does not require a malicious
prosecution plaintiff to prove her innocence,
or even that the termination of the criminal
proceeding was indicative of innocence.
5 Cases that cite this headnote
[35] Malicious Prosecution Mode of
Termination
Under New York law, any final termination of
a criminal proceeding in favor of the accused,
such that the proceeding cannot be brought again,
qualifies as a favorable termination for purposes
of a malicious prosecution action, unless the
disposition was inconsistent with the innocence
of the accused.
2 Cases that cite this headnote
[36] Civil Rights Criminal Law Enforcement;
Police and Prosecutors
Arrestee's allegations that she was wrongfully
accused of being responsible for the death of
her infant daughter, and that district attorney
had ultimately dismissed charges against her,
sufficiently alleged a favorable termination for
purposes of her malicious prosecution claim
under § 1983, even though she did not allege the
specific disposition of the underlying criminal
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case. U.S.C.A. Const. Amend. 4; 42 U.S.C.A. §
1983.
1 Case that cites this headnote
[37] False Imprisonment False imprisonment
and malicious prosecution distinguished
Under New York law, probable cause for
malicious prosecution is different from probable
cause for false arrest.
15 Cases that cite this headnote
[38] Malicious Prosecution Belief in guilt of
accused
For a malicious prosecution claim under New
York law, probable cause to prosecute consists
of facts and circumstances that would lead a
reasonably prudent person to believe the plaintiff
guilty.
14 Cases that cite this headnote
[39] Malicious Prosecution Criminal
Prosecutions
Under New York law, 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.
8 Cases that cite this headnote
[40] Malicious Prosecution Finding of grand
jury
Under New York law, a grand jury indictment
gives rise to a presumption that probable cause
exists and thereby defeats a claim for malicious
prosecution.
2 Cases that cite this headnote
[41] Malicious Prosecution Finding of grand
jury
Under New York law, if plaintiff is to succeed
in 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; 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 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.
5 Cases that cite this headnote
[42] Civil Rights Criminal law enforcement;
prisons
Arrestee's allegations that grand jury indicted
her based upon falsely reported facts in reports
and search warrant affidavits, and fabricated
oral statements of witnesses, in connection with
accusation that she was responsible for the death
of her infant daughter, and police officers failed
to inform district attorney's office of exculpatory
evidence and that hospital and physician made
no efforts to seek a diagnosis other than “shaken
baby syndrome,” were sufficient to overcome
presumption of probable cause afforded grand
jury indictment, for purposes of arrestee's
malicious prosecution claim under § 1983.
U.S.C.A. Const. Amend. 4; 42 U.S.C.A. § 1983.
3 Cases that cite this headnote
[43] Civil Rights Attorneys, jurors, and
witnesses; public defenders
Grand jury witness is entitled to absolute
immunity in § 1983 actions. 42 U.S.C.A. § 1983.
5 Cases that cite this headnote
[44] Malicious Prosecution Necessity
To plead a malicious prosecution claim under
New York law, plaintiff must allege malice for
each of the defendants.
8 Cases that cite this headnote
[45] Malicious Prosecution Nature and
elements
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Malicious Prosecution Motive of
prosecution
In a malicious prosecution claim under New
York law, malice may be shown by proving that
the prosecution complained of was undertaken
from improper or wrongful motives, or in
reckless disregard of the rights of the plaintiff.
3 Cases that cite this headnote
[46] Civil Rights Criminal prosecutions
Arrestee's allegations that police officer signed
criminal complaint accusing her of being
responsible for the death of her infant daughter
knowing that its content was false and fabricated
adequately pled malice as to officer, as required
to state malicious prosecution claim under §
1983. U.S.C.A. Const. Amend. 4; 42 U.S.C.A. §
1983.
[47] Civil Rights Criminal prosecutions
Arrestee's allegations that physician employed
by city swore under oath in criminal complaint,
which accused her of being responsible for
the death of her infant daughter, and made
a statement that was false and “unsupportable
by any medical science or clinical or forensic
evidence,” adequately pled malice as to city
physician, as required to state malicious
prosecution claim under § 1983. U.S.C.A. Const.
Amend. 4; 42 U.S.C.A. § 1983.
[48] Civil Rights Criminal prosecutions
Arrestee's allegations that, despite lab results
showing high alkaline phosphatase and low
calcium, consistent with metabolic bone disease,
hospital and physician made no effort to
seek a diagnosis other than “shaken baby
syndrome,” based on their motives in concealing
exculpatory medical evidence in order to assist
prosecutor, adequately pled malice as to hospital
and physician, as required to state malicious
prosecution claim under § 1983. U.S.C.A. Const.
Amend. 4; 42 U.S.C.A. § 1983.
[49] Federal Courts Constitutional rights, civil
rights, and discrimination in general
Court looks to state law for the elements of a
§ 1983 abuse of process claim. 42 U.S.C.A. §
1983.
1 Case that cites this headnote
[50] Process Nature and elements in general
Under New York law, a malicious abuse-of-
process claim lies against a defendant who (1)
employs regularly issued legal process to compel
performance or forbearance of some act (2)
with the intent to do harm without excuse of
justification and (3) in order to obtain a collateral
objective that is outside the legitimate ends of the
process.
11 Cases that cite this headnote
[51] Process Process, what constitutes
In the context of an abuse of process claim
under New York law, legal process means that a
court issued the process, and the plaintiff will be
penalized if he violates it.
7 Cases that cite this headnote
[52] Process Improper, ulterior, collateral, or
unlawful purpose
The crux of a malicious abuse of process claim
under New York law is the collateral objective
element.
9 Cases that cite this headnote
More cases on this issue
[53] Process Improper, ulterior, collateral, or
unlawful purpose
To plead collateral objective element of a claim
under New York law for malicious abuse of
process, a plaintiff must plausibly plead not that
defendant acted with an improper motive, but
rather an improper purpose; plaintiff must claim
that the defendant aimed to achieve a collateral
purpose beyond or in addition to his criminal
prosecution.
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8 Cases that cite this headnote
More cases on this issue
[54] Limitation of Actions Civil rights
Arrestee's § 1983 malicious abuse of process
claim against, inter alia, city and its employees
alleging that she was wrongfully accused
of being responsible for the death of her
infant daughter accrued, and three-year statute
of limitations began to run, when criminal
case against arrestee was dismissed, without
prosecution and following her husband's
conviction, at which time prosecution's alleged
purpose of using her as leverage to get her
husband to plead guilty became clear. 42
U.S.C.A. § 1983; N.Y. CPLR § 214.
More cases on this issue
[55] Limitation of Actions Torts
Limitation of Actions Nature of harm or
damage, in general
Under New York law, a claim for abuse of
process accrues at such a time as the criminal
process is set in motion, typically at arrest,
against the plaintiff; however, accrual cannot be
appropriate before such time as plaintiff is aware,
or ought to be aware, of those facts providing a
basis for his claim.
7 Cases that cite this headnote
[56] Process Probable cause
Under New York law, probable cause is not a
complete defense to malicious abuse of process.
U.S. Const. Amend. 4.
5 Cases that cite this headnote
[57] Process Particular cases
Arrestee's allegations that physician employed
by city swore under oath in criminal complaint,
which accused her of being responsible for
the death of her infant daughter, and made
a statement that was false and “unsupportable
by any medical science or clinical or forensic
evidence,” and police officer signed criminal
complaint knowing that its content was false
and fabricated adequately pled involvement in
the use of legal process, as required to state
malicious abuse of process claim under New
York law against physician and officer.
1 Case that cites this headnote
[58] Process Officers and public employees
Arrestee failed to allege certain police officers
and other city employees participated in the
investigation of the criminal case against her
relating to the death of her infant daughter,
including her arrest and detention, as required to
maintain malicious abuse of process claim under
New York law in § 1983 action against those
officers and city employees. 42 U.S.C.A. § 1983.
[59] Civil Rights Arrest, search, and detention
Arrestee's conclusory allegations that all
defendants in her § action, namely city,
city employees, including police officers who
allegedly investigated her, county assistant
district attorney, and hospital and one of its
employees failed to intervene to prevent other
defendants from violating her constitutional
rights not to be subjected to false arrest,
malicious prosecution, and abuse of process,
in connection with accusation that arrestee was
responsible for the death of her infant daughter,
failed to state § 1983 claim for failure to
intervene. 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[60] Civil Rights Police, Investigative, or Law
Enforcement Activities
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.
4 Cases that cite this headnote
[61] Civil Rights Police, Investigative, or Law
Enforcement Activities
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Civil Rights Use of force in general
Civil Rights Arrest and detention
Law enforcement officer who fails to intercede in
conduct of other officers is liable for preventable
harm caused by action of other officers if officer
observes or has reason to know that excessive
force is being used, that citizen has been
unjustifiably arrested, or that any constitutional
violation has been committed by other law
enforcement officials, and if observing officer
had realistic opportunity to intervene to prevent
harm from occurring.
4 Cases that cite this headnote
[62] Conspiracy Definition and Elements in
General
To survive a motion to dismiss on a plaintiff's
§ 1983 conspiracy claim, the 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. 42
U.S.C.A. § 1983.
5 Cases that cite this headnote
[63] Conspiracy Civil rights conspiracies
Complaints asserting § 1983 conspiracy
claims that contain only conclusory, vague,
or general allegations that 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. 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[64] Conspiracy Civil rights conspiracies
To state a § 1983 conspiracy claim against a
private entity, the complaint must allege facts
demonstrating that the private entity acted in
concert with the state actor to commit an
unconstitutional act. 42 U.S.C.A. § 1983.
[65] Conspiracy Civil rights conspiracies
Arrestee's allegations that city employees,
including police officers and physician, and
hospital and its employee acted jointly in
wrongfully accusing her of being responsible for
the death of her infant daughter were sufficient
to support § 1983 conspiracy claim. 42 U.S.C.A.
§ 1983.
[66] Conspiracy Intracorporate conspiracy
doctrine in general
Under the intra-corporate conspiracy doctrine,
there is no conspiracy if the conspiratorial
conduct challenged is essentially a single act by
a single corporation acting exclusively through
its own directors, officers, and employees, each
acting within the scope of his employment.
1 Case that cites this headnote
[67] Civil Rights Arrest and detention
Search, Seizure, and Arrest Duration
Search, Seizure, and Arrest Duration of
confinement in general; release
Unreasonably prolonged pretrial detention
where exculpatory evidence is readily available
can form the basis of a § 1983 claim against
police officers as a violation of the Fourth
Amendment's protection against unreasonable
seizures. U.S. Const. Amend. 4; 42 U.S.C.A. §
1983.
3 Cases that cite this headnote
[68] Civil Rights Arrest and detention
To state a § 1983 claim for unreasonably
prolonged detention, plaintiff must allege that
(1) she has a right to be free from continued
detention stemming from law enforcement
officials' mishandling or suppression of
exculpatory evidence, (2) the actions of the
officers violated that right, and (3) the officers'
conduct shocks the conscience. U.S. Const.
Amend. 4; 42 U.S.C.A. § 1983.
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7 Cases that cite this headnote
[69] Criminal Law Intervention of Public
Officers
Prisons Duration of confinement;
discharge and release
Arrestee's allegations that certain city
employees, including police officers and
physician, disregarded and concealed
exculpatory evidence in criminal investigation
relating to accusation that arrestee was
responsible for the death of her infant daughter
for over four years while arrestee remained in
prison were sufficient to support § 1983 claim for
unreasonably prolonged detention under Fourth
Amendment. U.S. Const. Amend. 4; 42 U.S.C.A.
§ 1983.
[70] Criminal Law Intervention of Public
Officers
Search, Seizure, and Arrest Duration
Search, Seizure, and Arrest Duty to
investigate; exculpatory evidence
Failure to obtain or disclose evidence that is
only arguably exculpatory does not shock the
conscience, for purposes of § 1983 claim for
unreasonably prolonged detention under the
Fourth Amendment. U.S. Const. Amend. 4; 42
U.S.C.A. § 1983.
3 Cases that cite this headnote
[71] Constitutional Law Local government
Fourteenth Amendment's prohibition against
states depriving a person of life, liberty, or
property, without due process of law, applies to
municipalities. U.S. Const. Amend. 14.
1 Case that cites this headnote
[72] Constitutional Law Arbitrariness
Due Process Clause was intended to secure the
individual from the arbitrary exercise of the
powers of government. U.S. Const. Amend. 14.
2 Cases that cite this headnote
[73] Constitutional Law Procedural due
process in general
Procedural due process requires that government
action depriving an individual of substantial
interest in life, liberty, or property be
implemented in a fair manner. U.S. Const.
Amend. 14.
2 Cases that cite this headnote
[74] Constitutional Law Substantive Due
Process in General
Substantive due process bars certain government
actions regardless of the fairness of the
procedures used to implement them, in order to
prevent governmental power from being used for
purposes of oppression. U.S. Const. Amend. 14.
[75] Constitutional Law Substantive Due
Process in General
While a procedural due process claim challenges
the procedure by which deprivation of liberty
is effected, a substantive due process claim
challenges the fact of the deprivation itself. U.S.
Const. Amend. 14.
2 Cases that cite this headnote
[76] Constitutional Law Duration and timing
of deprivation; pre- or post-deprivation
remedies
Procedural due process violation occurs when
the government deprives a person of a protected
life, liberty, or property interest without first
providing notice and an opportunity to be heard.
U.S. Const. Amend. 14.
2 Cases that cite this headnote
[77] Constitutional Law Particular claims
Constitutional Law Duration and timing
of deprivation; pre- or post-deprivation
remedies
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To determine whether a § 1983 due process
claim is plausibly alleged, the court evaluates
the sufficiency of the allegations with respect to
the liberty or property interest alleged and the
process due before deprivation of that interest.
U.S. Const. Amend. 14; 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[78] Constitutional Law Right to fair trial in
general
Fair trial claim is a civil claim for violations of a
criminal defendant's Fourteenth Amendment due
process rights. U.S. Const. Amend. 14.
8 Cases that cite this headnote
[79] Constitutional Law Investigative activity
in general
Constitutional Law Evidence
Defendant's due process right to a fair trial is
violated when exculpatory evidence is withheld,
i.e., when a Brady violation occurs, and also
when an officer forwards fabricated evidence to
prosecutors. U.S. Const. Amend. 14.
3 Cases that cite this headnote
[80] Civil Rights Criminal prosecutions
Constitutional Law Right to fair trial in
general
Criminal Law Official Action, Inaction,
Representation, Misconduct, or Bad Faith
Plaintiff need not have gone to a full trial on the
merits in order to have an actionable § 1983 due
process claim based on the denial of a fair trial.
U.S. Const. Amend. 14; 42 U.S.C.A. § 1983.
7 Cases that cite this headnote
[81] Civil Rights Criminal prosecutions
Constitutional Law Evidence
Criminal Law Responsibility of and for
police and other agencies
Police officers can be held liable for Brady
due process violations under § 1983 if they
withhold exculpatory evidence from prosecutors.
U.S. Const. Amend. 14; 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[82] Criminal Law Responsibility of and for
police and other agencies
Once a police officer turns over exculpatory
evidence to the prosecutor, that officer satisfies
his constitutional obligations under Brady. U.S.
Const. Amend. 14.
[83] Criminal Law Constitutional obligations
regarding disclosure
Elements of Brady violation are: (1) evidence
at issue must be favorable to accused, either
because it is exculpatory or because it is
impeaching; (2) that evidence must have
been suppressed by state, either willfully or
inadvertently; and (3) prejudice must have
ensued.
7 Cases that cite this headnote
[84] Criminal Law Materiality and probable
effect of information in general
To establish prejudice, as element of Brady
violation, a plaintiff must show the evidence
was material, i.e., whether the evidentiary
suppression undermines confidence in the
outcomes of the trial.
4 Cases that cite this headnote
[85] Constitutional Law Search, Seizure, and
Confiscation
Constitutional Law Investigative activity
in general
Constitutional Law Evidence
Criminal Law Responsibility of and for
police and other agencies
Health Records and duty to report;
confidentiality in general
Arrestee's allegations that police officers
and physicians failed to disclose exculpatory
evidence in investigation of her infant's death,
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did not document or inform the district attorney's
office of exculpatory evidence, and falsely
reported facts in reports and search warrant
affidavits, and that prejudice ensued because it
resulted in her arrest, were sufficient to support
procedural due process claim based on Brady
violation in § 1983 action. U.S. Const. Amend.
14; 42 U.S.C.A. § 1983.
3 Cases that cite this headnote
[86] Criminal Law Requisites of fair trial
Fabrication of evidence constitutes a violation of
the right to a fair trial. U.S. Const. Amends. 5,
6, 14.
15 Cases that cite this headnote
[87] Criminal Law Requisites of fair trial
To state a fair trial claim based on fabrication
of evidence, a plaintiff must allege that an (1)
investigating official (2) fabricated 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. U.S. Const. Amends. 5,
6, 14.
20 Cases that cite this headnote
[88] Constitutional Law Protection of
Children; Child Abuse, Neglect, and
Dependency
Constitutional Law Search, Seizure, and
Confiscation
Constitutional Law Investigative activity
in general
Infants False reports and accusations
Arrestee's allegations that certain city
employees, including police officers and
physician, knowingly provided and/or swore to
false information in criminal complaint, reports,
and search warrant affidavits accusing her of
being responsible for the death of her infant
daughter were sufficient to support procedural
due process claim against city employees based
on fabrication of evidence in § 1983 action. U.S.
Const. Amends. 5, 6, 14; 42 U.S.C.A. § 1983.
[89] Constitutional Law Protection of
Children; Child Abuse, Neglect, and
Dependency
Infants Medical institutions and
professionals in general
Infants False reports and accusations
Arrestee's allegations that physician employed
by hospital ignored evidence suggesting that
her infant daughter's death was not caused by
“shaken baby syndrome,” including lab results
that were consistent with metabolic bone disease,
and provided false information to physician
employed by city, who based her conclusions in
criminal investigation on that false information,
were sufficient to support procedural due process
claim against hospital and its employee based on
fabrication of evidence in § 1983 action. U.S.
Const. Amends. 5, 6, 14; 42 U.S.C.A. § 1983.
[90] Limitation of Actions Civil rights
Fabrication of evidence claims accrue when the
plaintiff learns that evidence was fabricated and
an injury was caused by the fabrication. U.S.
Const. Amends. 5, 6, 14.
4 Cases that cite this headnote
[91] Limitation of Actions Burden of proof in
general
Because the statute of limitations is an
affirmative defense, the burden is on the
defendant to establish when a federal claim
accrues.
[92] Limitation of Actions Civil rights
Allegation that arrestee always believed in her
innocence was insufficient for city employees,
including police officers and physician, to
establish that her Brady violation and fabrication
of evidence claims accrued at the time of her
arrest in § 1983 action alleging that she was
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wrongfully accused of being responsible for
the death of her infant daughter. U.S. Const.
Amends. 5, 6, 14; 42 U.S.C.A. § 1983.
More cases on this issue
[93] Constitutional Law Substantive Due
Process in General
Due process protection in the substantive sense
limits what the government may do in both
its legislative and its executive capacities. U.S.
Const. Amend. 14.
[94] Constitutional Law Personal and bodily
rights in general
Constitutional Law Families and Children
Constitutional Law Privacy and Sexual
Matters
The protections of substantive due process have
for the most part been accorded to matters
relating to marriage, family, procreation, and the
right to bodily integrity. U.S. Const. Amend. 14.
[95] Constitutional Law Substantive Due
Process in General
Criteria to identify what is fatally arbitrary, in
context of substantive due process claim, differ
depending on whether it is legislation or a
specific act of a governmental officer that is at
issue. U.S. Const. Amend. 14.
[96] Constitutional Law Egregiousness;
"shock the conscience" test
For executive action to violate substantive
due process, it must be so egregious, so
outrageous, that it may fairly be said to shock the
contemporary conscience; it is not enough that
the government act was incorrect or ill-advised,
rather, only the most egregious official conduct
can be said to be arbitrary in the constitutional
sense and therefore unconstitutional. U.S. Const.
Amend. 14.
1 Case that cites this headnote
[97] Constitutional Law Protection of
Children; Child Abuse, Neglect, and
Dependency
Infants Medical institutions and
professionals in general
Arrestee's allegations that physician employed
by city as well as hospital and its employee
failed to “exhaust all possibilities” before
rendering “shaken baby syndrome” diagnosis in
investigation of her infant daughter's death were
insufficient to support substantive due process
claim based on failure to investigate in § 1983
action. U.S. Const. Amend. 14; 42 U.S.C.A. §
1983.
1 Case that cites this headnote
[98] Constitutional Law Arbitrariness
The due process right to be free from arbitrary
government action, to the extent it exists, is the
right to be free of arbitrary government action
that infringes a protected right. U.S. Const.
Amend. 14.
[99] Civil Rights Arrest and detention
Arrestee's allegations in § 1983 action that she
was wrongfully accused of being responsible for
her infant daughter's death and held for more
than four years in pretrial detention, and that
defendants, including hospital and its employee,
encouraged this for the purpose of using her
confinement as a “bargaining chip” to pressure
her husband to plead guilty, were insufficient
to support speedy trial claim against hospital
and its employee, absent allegations supporting
a causal link between conduct of hospital and
its employee and the delay in arrestee's criminal
case being resolved. U.S. Const. Amend. 6; 42
U.S.C.A. § 1983.
[100] Civil Rights Common law or state law
torts
Section 1983 action, like its state tort analogs,
employs the principle of proximate causation. 42
U.S.C.A. § 1983.
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[101] Civil Rights Arrest and detention
The chain of causation between a police officer's
unlawful arrest and a subsequent conviction
and incarceration is broken by the intervening
exercise of independent judgment, in civil rights
action arising from arrest.
[102] Civil Rights Arrest and detention
Arrestee's allegations in § 1983 action that
city employees, including police officers and
physician, wrongfully accused her of being
responsible for her infant daughter's death and
that she was held for more than four years in
pretrial detention for the purpose of using her
confinement as a “bargaining chip” to obtain a
guilty plea from her husband, coupled with her
criminal case being dismissed shortly after her
husband's conviction, were sufficient to state a
speedy trial claim as to the city employees who
were involved in her prosecution. U.S. Const.
Amend. 6; 42 U.S.C.A. § 1983.
[103] Constitutional Law Conditions
Pretrial detainee's claim 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 Eighth Amendment.
U.S. Const. Amends. 8, 14.
[104] Civil Rights Criminal law enforcement;
prisons
Civil Rights Criminal law enforcement;
prisons
Pretrial detainee's allegations in § 1983 action
against city employees, including police officers
and physician, as well as hospital and its
employee, that defendants, inter alia, refused
usual and customary medical services, forced
her to give birth while handcuffed and shackled,
refused her the opportunity to breastfeed or bond
with her infant after childbirth, and took away her
infant two-and-a-half days after delivery failed
to support claim of unconstitutional conditions
of confinement, absent factual allegations
establishing the personal involvement of any
defendant with respect to those conditions. U.S.
Const. Amend. 14; 42 U.S.C.A. § 1983.
[105] Civil Rights Criminal law enforcement;
prisons
Arrestee's allegations in § 1983 action that city,
with deliberate indifference, failed to provide
adequate training for its police officers who
worked on “shaken baby syndrome” cases or to
properly instruct city employees of applicable
laws were sufficient to state Monell claim against
the city. 42 U.S.C.A. § 1983.
[106] Civil Rights Governmental Ordinance,
Policy, Practice, or Custom
Municipality may be liable under § 1983 if a
municipal policy or custom causes deprivation of
rights protected by the Constitution. 42 U.S.C.A.
§ 1983.
14 Cases that cite this headnote
[107] Civil Rights Complaint in general
For a Monell claim to survive a motion to
dismiss for failure to state a claim, a plaintiff
must allege sufficient factual detail and not
mere boilerplate allegations that the violation of
the plaintiff's constitutional rights resulted from
the municipality's custom or official policy. 42
U.S.C.A. § 1983; Fed. R. Civ. P. 12(b)(6).
13 Cases that cite this headnote
[108] Civil Rights Governmental Ordinance,
Policy, Practice, or Custom
Civil Rights Lack of Control, Training, or
Supervision; Knowledge and Inaction
A policy or custom may be established, for
purposes of alleging municipal liability under §
1983, by any of the following: (1) a formal policy
officially endorsed by the municipality; (2)
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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. 42 U.S.C.A. § 1983.
15 Cases that cite this headnote
[109] Civil Rights Criminal law enforcement;
prisons
Arrestee's allegations in § 1983 action that
physician employed by hospital had a history
of overzealously diagnosing “shaken baby
syndrome,” of which hospital was aware and
with knowledge that law enforcement would
rely on those conclusions in directing the
course of an arrest and prosecution, and that
hospital perpetuated policy of having its staff
conduct investigations for non-medical purposes
in order to see those accused of “shaken baby
syndrome” arrested, prosecuted, and convicted,
were sufficient to state Monell claim against
hospital. 42 U.S.C.A. § 1983.
[110] Civil Rights Vicarious or respondeat
superior liability in general
Doctrine of respondeat superior is not available
to render a supervisor liable under § 1983 for the
unconstitutional conduct of his subordinates. 42
U.S.C.A. § 1983.
3 Cases that cite this headnote
[111] Civil Rights Vicarious or respondeat
superior liability in general
Just as a municipal entity cannot be held
liable under § 1983 pursuant to the doctrine
of respondeat superior, a private corporation
cannot be held liable under respondeat superior
for the allegedly unconstitutional conduct of its
employee. 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[112] Civil Rights Adequacy, Availability, and
Exhaustion of State or Local Remedies
Civil Rights Existence of other remedies;
exclusivity
There is no private right of action under the
New York State Constitution where remedies are
available under § 1983. 42 U.S.C.A. § 1983.
4 Cases that cite this headnote
[113] Civil Rights Government Agencies and
Officers
District courts are encouraged to determine the
availability of an absolute immunity defense in §
1983 action at the earliest appropriate stage. 42
U.S.C.A. § 1983.
[114] Civil Rights Attorney General and
prosecuting attorneys
Prosecutors performing core prosecutorial
functions are entitled to absolute immunity in §
1983 action. 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[115] Civil Rights Attorney General and
prosecuting attorneys
Prosecutorial functions protected by absolute
immunity in § 1983 action include conduct
preliminary to the initiation of a prosecution,
such as whether to present a case to a grand
jury, whether and when to prosecute, whether
to dismiss an indictment against particular
defendants, which witnesses to call, and what
other evidence to present. 42 U.S.C.A. § 1983.
[116] Civil Rights Attorney General and
prosecuting attorneys
Prosecutor was entitled to absolute immunity in
arrestee's § 1983 action alleging that she was
wrongfully accused of being responsible for the
death of her infant daughter, even though arrestee
claimed that prosecutor concealed evidence and
misrepresented facts. 42 U.S.C.A. § 1983.
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[117] Civil Rights Attorney General and
prosecuting attorneys
Prosecutor is entitled to absolute immunity in
§ 1983 action even in the face of allegations
of deliberate withholding of exculpatory
information or his knowing use of perjured
testimony. 42 U.S.C.A. § 1983.
3 Cases that cite this headnote
[118] Federal Courts Prosecutors and attorneys
general
To the extent arrestee's claims against prosecutor
in § 1983 action alleging that she was wrongfully
accused of being responsible for the death of her
infant daughter were asserted against prosecutor
in her official capacity, they were barred because
prosecutor acted on behalf of state, which was
immune under the Eleventh Amendment. U.S.
Const. Amend. 11; 42 U.S.C.A. § 1983.
[119] Civil Rights Good faith and
reasonableness; knowledge and clarity of law;
motive and intent, in general
Qualified immunity shields law enforcement
officers from § 1983 claims for money damages
provided that their conduct does not violate
clearly established constitutional rights of which
a reasonable person would have been aware. 42
U.S.C.A. § 1983.
[120] Civil Rights Defenses; immunity and
good faith
Qualified immunity from § 1983 claims for
money damages is an affirmative defense as to
which the defendant officers or officials bear the
burden of proof. 42 U.S.C.A. § 1983.
1 Case that cites this headnote
[121] Civil Rights Government Agencies and
Officers
Civil Rights Good faith and
reasonableness; knowledge and clarity of law;
motive and intent, in general
In analyzing the applicability of qualified
immunity from § 1983 claims for money
damages, courts conduct a two-step analysis:
first, courts determine whether the facts show
that the officer's conduct violated plaintiff's
constitutional rights, and second, if there was
a constitutional violation, courts determine
whether the right was clearly established at
the time of the officer's actions; courts are
permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified
immunity analysis should be addressed first in
light of the circumstances in the particular case
at hand. 42 U.S.C.A. § 1983.
[122] Civil Rights Good faith and
reasonableness; knowledge and clarity of law;
motive and intent, in general
Even if the constitutional right at issue was
clearly established in certain respects, an officer
is still entitled to qualified immunity from §
1983 claims for money damages if officers of
reasonable competence could disagree on the
legality of the action at issue in its particular
factual context. 42 U.S.C.A. § 1983.
[123] Civil Rights Sheriffs, police, and other
peace officers
Police officers were not entitled to qualified
immunity as to arrestee's false arrest and
malicious prosecution claims based on alleged
fabrication of evidence and suppression of
exculpatory evidence in § 1983 action alleging
that she was wrongfully accused of being
responsible for the death of her infant
daughter; there were several plausible alternative
explanations to “shaken baby syndrome” as the
cause of death, including a genetic disorder and
the child's prior medical history, that the officers
chose to ignore. 42 U.S.C.A. § 1983.
1 Case that cites this headnote
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[124] Federal Civil Procedure Fact issues
Where district court could not find, as a
matter of law, that physician employed by
city was acting in a prosecutorial role rather
than an investigatory one in connection with
accusation that arrestee was responsible for the
death of her infant daughter, the availability of
absolute immunity from arrestee's false arrest
and malicious prosecution claims based on
alleged fabrication of evidence and suppression
of exculpatory evidence in § 1983 action could
not be decided as a matter of law on motion to
dismiss. 42 U.S.C.A. § 1983.
4 Cases that cite this headnote
More cases on this issue
[125] Civil Rights Persons Protected, Persons
Liable, and Parties
Physician employed by hospital who had
diagnosed arrestee's infant daughter with
“shaken baby syndrome,” and who allegedly
took an active role in criminal investigation
accusing arrestee of being responsible for the
death of infant, was not entitled to statutory
immunity under the New York Child Protective
Services Act from arrestee's false arrest and
malicious prosecution claims based on alleged
fabrication of evidence and suppression of
exculpatory evidence on motion to dismiss in §
1983 action. 42 U.S.C.A. § 1983; N.Y. Social
Services Law § 413(1)(a).
[126] Federal Civil Procedure Pleading over
Although it is the usual practice upon granting
a motion to dismiss to allow leave to replead,
such leave should be denied where the proposed
amendment would be futile. Fed. R. Civ. P. 15(a).
1 Case that cites this headnote
[127] Federal Civil Procedure Pleading over
An amendment to a pleading is considered futile
if the claim is time-barred due to the expiration of
the applicable statute of limitations period. Fed.
R. Civ. P. 15(a).
2 Cases that cite this headnote
[128] Federal Civil Procedure Form and
sufficiency of amendment; futility
District court would deny as futile arrestee's
request for leave to amend her complaint a
second time in § 1983 action against city,
city employees, including police officers who
allegedly investigated her, county assistant
district attorney, and hospital and one of its
employees, alleging that she was wrongfully
accused of being responsible for the death of
her infant daughter; the court already permitted
arrestee the opportunity to amend the complaint
and urged her to correct certain deficiencies,
however, arrestee did not heed the court's advice,
nor make good use of that opportunity to prune
her complaint of invalid claims or to add useful
or relevant factual allegations or particularity to
her complaint. 42 U.S.C.A. § 1983; Fed. R. Civ.
P. 15(a).
More cases on this issue
Attorneys and Law Firms
*591 Corey T. Lee, C.T. Lee & Associates, Ameer Nadav
Benno, Benno & Associates P.C., Poupa Jenny Marashi, New
York, NY, for Plaintiff.
Qiana Charmaine Smith–Williams, New York City Law
Department, Gregory John Radomisli, Brian Scott Osterman,
Martin Clearwater & Bell LLP, New York, NY, for
Defendants.
MEMORANDUM & ORDER
PAMELA K. CHEN, United States District Judge:
On March 26, 2015, Plaintiff Ying Li commenced this
action against Defendants pursuant to 42 U.S.C. § 1983
(“Section 1983”) and New York law. (See Dkt. 1.) Plaintiff's
ten-count Amended Complaint alleges numerous theories
of liability against Defendants. (See Dkt. 36, Amended
Complaint (“Am. Compl.”).) In general, Plaintiff alleges that
she was wrongfully accused of being responsible for the
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death of her infant daughter. (Id.) The Amended Complaint
makes claims against two groups of defendants: (i) the first
group is *592 composed of the City of New York (the
“City”) and various City employees (collectively, the “City
Defendants”), including twelve named New York City Police
Department (“NYPD”) officers who allegedly investigated
Plaintiff (the “Officer Defendants”) 1 ; Dr. Kristen Landi (“Dr.
Landi”), a physician employed by the City; Queens County
Assistant District Attorney P. Leigh Bishop (“ADA Bishop”);
and fifteen “John Doe” defendants; and (ii) the second
group is composed of Flushing Hospital Medical Center
(“Flushing Hospital” or “FHMC”) and one of its employees,
Dr. Fernanda Kupferman (“Dr. Kupferman”) (collectively, the
“Medical Center Defendants”).
Plaintiff asserts the following ten counts, of which eight
are against all Defendants: Count 1 (false arrest and
imprisonment), Count 2 (malicious prosecution), Count 3
(malicious abuse of process), Count 4 (failure to intervene),
Count 5 (conspiracy), Count 6 (unreasonably prolonged
detention), Count 7 (violation of due process), Count 8
(Monell liability against the City), Count 9 (Monell-type
liability against Flushing Hospital), and Count 10 (violation
of the New York State Constitution). Except for Count 10, all
of Plaintiff's claims are alleged as federal claims pursuant to
Section 1983.
Presently before the Court are two separate motions to dismiss
filed by the two groups of Defendants pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”).
For the reasons set forth below, both the City Defendants'
and Medical Center Defendants' motions are GRANTED IN
PART and DENIED IN PART. Furthermore, all claims against
the following Defendants are dismissed in their entirety: ADA
Bishop, Lt. Conforti, Det. Perdoch, Sgt. Rodriguez, Lt. Hall,
Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan.
BACKGROUND
I. THE FACTS 2
Early in the morning of October 23, 2007, Annie, the 8–1/2–
week-old daughter of Plaintiff and her husband Hang Bin Li,
suddenly went limp while being fed. (Am. Compl. ¶¶ 92, 95.)
The Lis called 911 and took Annie to the emergency room at
Flushing Hospital. (Am. Compl. ¶¶ 95, 98, 108.) Annie was
unresponsive when she arrived at the emergency room, where
she was revived and placed on life support. (Am. Compl. ¶
98.) 3
Suspecting child abuse, Flushing Hospital called Det. Phelan
and the NYPD Child Abuse Squad that day. (Am. Compl.
¶ 101.) Det. Phelan went to the hospital, spoke *593 with
the hospital staff, looked at medical charts, and met with the
Lis. (Am. Compl. ¶¶ 101–103.) P.O. Yam, an officer who
spoke Mandarin, accompanied Det. Phelan. (Am. Compl.
¶ 101.) The Lis were taken to Det. Phelan's office at the
Queens Child Abuse Squad. (Am. Compl. ¶ 104.) When they
arrived at the 109th precinct, other officers and sergeants,
including Defendant Manfredi, were present. (Am. Compl.
¶ 105.) Det. Heffernan also came to the Precinct that night.
(Am. Compl. ¶ 105.) Dets. Phelan and Degnan interrogated
Plaintiff, alone, for about an hour while P.O. Yam interpreted.
(Am. Compl. ¶ 106.) They then interrogated Hang Bin
Li. (Am. Compl. ¶ 106.) Afterwards, Dets. Degnan and
Heffernan drove the Lis back to Flushing Hospital. (Am.
Compl. ¶ 108.) At the hospital, Dets. Degnan and Heffernan
had extended conversations with the hospital staff, including
Dr. Kupferman. (Am. Compl. ¶ 108.)
The next day, October 24, 2007, Det. Phelan went to the
Lis' house, and Plaintiff's husband gave written consent
for Det. Phelan to search the home. (Am. Compl. ¶ 110.)
Later, detectives from the 109th Precinct went to search
the Lis' home after getting a warrant. (Am. Compl. ¶ 110.)
Subsequently, the Lis were interviewed again by numerous
people, including Dets. Heffernan and Moser, officers from
the Queens Homicide Squad, and medical personnel at
Flushing Hospital, including Dr. Kupferman. 4 (Am. Compl.
¶¶ 112–15.) Det. Chan served as an interpreter from the
afternoon of October 24, 2007, until the morning hours
of October 25, 2007. (Am. Compl. ¶ 112.) During these
interviews, according to Plaintiff, Dets. Heffernan and Moser
and Dr. Kupferman repeatedly screamed at the Lis that they
had killed their daughter and that unless the Lis told them
which one of them had hurt Annie, the doctors could not help
her. (Am. Compl. ¶ 115.) They also promised the Lis that they
could see Annie if they admitted to hurting her. (Am. Compl.
¶ 116.) After being repeatedly told this, Hang Bin Li stated
that he might have inadvertently bumped Annie's head lightly
against a table while trying to resuscitate her. (Am. Compl.
¶ 117.)
On October 25, 2007, Dr. Kupferman conducted a “forensic
interview” of Plaintiff. (Am. Compl. ¶ 120.) A day later,
Annie was confirmed brain dead, and was diagnosed with
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“Shaken Baby Syndrome” (“SBS”). 5 (Am. Compl. ¶¶ 123,
134.) That evening, the Lis were again taken to the 109th
precinct, and Dets. Degnan, Heffernan, and Chan questioned
the Lis separately until the next morning. (Am. Compl. ¶
124.) Hang Bin Li also gave a written statement regarding
the events that had occurred on October 22 and 23. (Id.)
Annie was removed from life support on October *594
28. (Am. Compl. ¶ 125.) On October 29, Dets. Moser,
Degnan, Heffernan, and Sgt. Cai questioned Hang Bin Li
at the 109th precinct. (Am. Compl. ¶ 126.) Throughout the
multiple investigations and interviews, Plaintiff denied any
wrongdoing. (Am. Compl. ¶ 127.) Unidentified Defendants
ordered Plaintiff to remain in and about her home from
approximately October 26, 2007 up to her arrest five months
later. (Am. Compl. ¶ 131.)
On March 11, 2008, Plaintiff and her husband were arrested
for Annie's death based on the conclusion that Annie had died
of SBS. (Am. Compl. ¶¶ 133–34.) Plaintiff was charged with
two counts of Manslaughter in the First Degree, and one count
of Endangering the Welfare of a Child. (Am. Compl. ¶¶ 146.)
The grand jury indicted Plaintiff on various charges, including
Manslaughter in the Second Degree. (Am. Compl. ¶ 181, 184,
Ex. C.) Plaintiff pled not guilty to all charges. (Am. Compl.
¶ 179.) Plaintiff's husband was also indicted for one count of
Murder in the Second Degree, two counts of Manslaughter
in the Second Degree, and one count of Endangering the
Welfare of a Child. (Am. Compl. ¶ 185.) Unable to make bail,
Plaintiff was held at the Riker's Island correctional facility
for about four years without a trial. (See Am. Compl. ¶¶ 180,
234.) On March 26, 2012, Plaintiff was released after her
bail was reduced. (Am. Compl. ¶ 197.) On January 2, 2013,
ADA Bishop moved to dismiss the criminal charges against
Plaintiff. (Dkt. 63–6, Ex. F.) Hang Bin Li's trial began the
next day. (Am. Compl. ¶ 199.) On February 1, 2013, he was
convicted of reckless manslaughter. (Am. Compl. ¶ 200.)
II. PROCEDURAL HISTORY
Plaintiff filed this action on March 26, 2015. (Dkt. 1.) On
November 19, 2015, she filed the Amended Complaint. (Dkt.
36.) On March 7, 2016, Defendants moved to dismiss the
Amended Complaint pursuant to FRCP 12(b)(6). (Dkt. 53,
58.)
DISCUSSION 6
I. COURT'S CONSIDERATION OF MATERIAL
EXTRANEOUS TO THE AMENDED COMPLAINT
Plaintiff and Defendants both seek to have the Court consider
certain information and documents outside of the Amended
Complaint. Both parties have attached to their moving papers
the Queens County criminal court complaint (“criminal
complaint”) against Plaintiff (Dkt. 60, Ex. B; *595 Dkt.
63, Ex. B) and the transcript of the court conference at
which ADA Bishop moved to dismiss the criminal charges
against Plaintiff (Dkt. 60, Ex. C; Dkt. 63, Ex. F). The City
Defendants also submitted the grand jury minutes (Dkt. 65,
Ex. A) with their Reply brief. Plaintiff also has submitted a
copy of the manslaughter indictment returned by the grand
jury against her (Dkt. 63, Ex. C) and two press releases
from the Queens District Attorney's Office, dated March 12,
2008, and September 11, 2015 (Dkt. 63, Exs. D, E). The
March 12, 2008 press release discusses the District Attorney's
charging of Plaintiff and her husband. (See Ex. D, Dkt. 63–
4, at ECF 2.) 7 The September 11, 2015 press release notes
that the Queens District Attorney and the New York City
Chief Medical Examiner were to host the 2015 New York City
Abusive Head Trauma / Shaken Baby Syndrome Conference.
(See Ex. E, Dkt. 63–5 at ECF 2.)
In determining the adequacy of a claim under Rule 12(b)
(6), courts are generally limited to the facts alleged in the
complaint, documents attached to the complaint, documents
incorporated by reference in the complaint, and facts that
may be judicially noticed. See DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)); see
also Wilson v. Kellogg Co., 628 Fed.Appx. 59, 60 (2d Cir.
2016) (summary order) (noting that the court may consider
matters of which judicial notice may be taken in deciding a
Rule 12(b)(6) motion). However, even if the complaint does
not expressly cite a document, the complaint is deemed to
include that document if it is “integral” to the complaint. L–
7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d
Cir. 2011) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir.
2004)); Sira, 380 F.3d at 67 (document not expressly cited
in the complaint was “incorporated into the pleading because
[it] was integral to [plaintiff's] ability to pursue” his cause
of action); Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d
Cir. 2006) (“Even where a document is not incorporated by
reference, the court may nevertheless consider it where the
complaint relies heavily upon its terms and effect, which
renders the document integral to the complaint.”) (quoting
Chambers v. Time Warner, Inc., 282 F.3d 147, 152–153 (2d
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Cir. 2002)); Fed. R. Evid. 201 (a court may take judicial notice
of “a fact that is not subject to reasonable dispute because it ...
can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned”).
[1] [2] By repeatedly referring to the criminal complaint,
the Amended Complaint incorporates it by reference. 8
As for Plaintiff's other exhibits, i.e., the indictment, the
transcript of the criminal court conference, and the two
press releases, the Court takes judicial notice of them, but
for the limited purpose of establishing their existence and
legal effect, and determining the statements that they contain
without considering the truth of those statements. *596 See,
e.g., Bejaoui v. City of New York, No. 13-cv-5667, 2015
WL 1529633, at *6 (E.D.N.Y. Mar. 31, 2015) (recognizing
disagreement among district courts in the Second Circuit
as to whether incident reports, arrest reports, and police
complaints may be judicially noticed, but still taking notice of
the plaintiff's State court indictment and criminal court order
to establish their existence and legal effect); Global Network
Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d
Cir. 2006) (“A court may take judicial notice of a document
filed in another court not for the truth of the matters asserted
in the other litigation, but rather to establish the fact of such
litigation and related filings.” (quoting Int'l Star Class Yacht
Racing Assn'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70
(2d Cir. 1998))); see, e.g., Garcia–Garcia v. City of New York,
No. 12-cv-1302, 2013 WL 3832730 (S.D.N.Y. July 22, 2013)
(taking judicial notice of criminal complaints and indictments
for the limited fact that plaintiff was arrested and charged with
certain crimes). 9 Here, the criminal court records and the
press releases relate to Plaintiff's allegations that the criminal
case was terminated favorably to her and the date on which
the criminal charges were dropped. 10 (Am. Compl. ¶¶ 201,
212.)
[3] The Court, however, declines to take judicial notice of
the grand jury minutes in People v. Hang Bin Li and Ying
Li, Indictment No. 603/08 (Dkt. 65, Ex. A), which the City
Defendants have attached to their Reply brief, because the
City seeks to rely on the substance and truth of the testimony
set forth in those minutes, and not just the fact of the testimony
being given or the date on which it was given. See St. John's
Univ., N.Y. v. Bolton, 757 F.Supp.2d 144, 156 (E.D.N.Y. 2010)
(“[T]he court may, at its discretion, consider matters of which
judicial notice may be taken....” (emphasis added) (citation
omitted)).
II. LEGAL STANDARD
Under Rule 12(b)(6) of the FRCP, a defendant may move for
dismissal on the ground that the complaint “fail[s] to state a
claim upon which relief can be granted.” To withstand a Rule
12(b)(6) motion, a complaint must plead sufficient facts “to
state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 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 claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable *597 inference
that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S.
at 556, 127 S.Ct. 1955). In ruling on a 12(b)(6) motion, a court
must accept the factual allegations set forth in the complaint
as true and must draw all reasonable inferences in favor of the
plaintiff. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014).
However, that “ ‘tenet is inapplicable to legal conclusions,’
and ‘[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.’ ”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal,
556 U.S. at 668, 129 S.Ct. 1937). A complaint that “tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement’
” will not suffice. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937
(quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather,
“[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. A complaint should be dismissed where a plaintiff
has not “nudged [its] claims across the line from conceivable
to plausible[.]” Id. at 570, 127 S.Ct. 1955.
III. PLAINTIFF'S SECTION 1983 CLAIMS
[4] [5] Plaintiff has brought this action pursuant to 42
U.S.C. § 1983 (“Section 1983”), which provides a cause of
action for anyone subjected “to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws” by a person acting under color of state law. 42 U.S.C.
§ 1983. “Section 1983 itself creates no substantive rights;
it provides only a procedure for redress for the deprivation
of [federal] rights established elsewhere.” Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999) (citing City of Oklahoma
City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d
791 (1985)); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir.
2010). To state a claim under Section 1983, a plaintiff must
plausibly allege “(1) that the defendants deprived him of
a right ‘secured by the Constitution or laws of the United
States’; and (2) that they did so ‘under color of state law.’
” Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir.
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2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)); see Flynn
v. James, 513 Fed.Appx. 37, 39 (2d Cir. 2013).
A. Liability of Medical Center Defendants as Private
Actors
[6] Plaintiff asserts her federal claims not only against
the City Defendants but also against the Medical Center
Defendants, who ordinarily would be considered non-State
actors. See White v. St. Joseph's Hosp., 369 Fed.Appx. 225,
226 (2d Cir. 2010) (“[P]rivate actors and institutions, such as
the hospitals ... are generally not proper § 1983 defendants
because they do not act under color of state law.”) (citing
Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50,
119 S.Ct. 977, 143 L.Ed.2d 130 (1999)); see also Kia P. v.
McIntyre, 235 F.3d 749, 756 (2d Cir. 2000) (finding that a
hospital was not a State actor to the extent it acted in its
capacity as a private provider of medical care). As a general
matter, liability under Section 1983 is proper only with respect
to individuals acting under “color of state law,” i.e., State
actors, or individuals acting in concert with a State actor.
See 42 U.S.C. § 1983; Jones v. City of New York, No. 12-
cv-9144, 2013 WL 4028183, at *6 n.3 (S.D.N.Y. Aug. 8,
2013) (“Section 1983 addresses only those injuries caused by
state actors or those acting under color of state law.”) (quoting
Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.
1992)). For a private entity to be held liable under Section
1983, a plaintiff must establish that the private entity acted
as a “willful participant in joint activity with the State or its
agents.” *598 Betts v. Shearman, 751 F.3d 78, 85 (2d Cir.
2014) (citation and quotation marks omitted).
Although the Medical Center Defendants argue that they are
not State actors and therefore not subject to liability under
Section 1983, they also note that this issue may be more
appropriate to be decided on summary judgment. (See Dkt. 55
at 19 n.3.) Because the Medical Center Defendants essentially
defer arguing the issue, the Court reserves consideration of
the issue for summary judgment. For purposes of ruling on
Defendants' motions to dismiss, the Court assumes without
deciding that the Medical Center Defendants are State actors
who acted “under color of state law.”
B. City Defendants' Request to Dismiss the Individual
Officer Defendants for Lack of Personal Involvement
[7] [8] The City Defendants point out—and rightfully so
—that Plaintiff has failed to allege any personal involvement
by many of the named Officer Defendants. (Dkt. 59 at 6.)
“An individual defendant is not liable under § 1983 absent
personal involvement.” Morris v. Eversley, 282 F.Supp.2d
196, 202 (S.D.N.Y. 2003) (citing Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994)); Spavone v. New York State Dept. of Corr.
Servs., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in
this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.”) (quoting Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995)). Pleadings that do not differentiate
which defendant was involved in the unlawful conduct are
insufficient to state a claim. See, e.g., Wright v. Orleans Cnty.,
No. 14-cv-0622A, 2015 WL 5316410, at *13 (W.D.N.Y. Sept.
10, 2015) (noting in a § 1983 case that “[g]roup pleading
is insufficient for purposes of Rule 8(a)(2) [of the FRCP]
which requires a short and plain statement of the claim
showing that the pleader is entitled to relief.” (citation and
quotation marks omitted)); Holmes v. Allstate Corp., No. 11–
civ–1543, 2012 WL 627238, at *7, *22 (S.D.N.Y. Jan. 27,
2012) (“Plaintiffs' method of group pleading is incoherent or
illogical” and “[FRCP] 8(a) is violated where a plaintiff, by
engaging in ‘group pleading,’ fails to give each defendant fair
notice of the claims against it.”); Pierson v. Orlando Regional
Healthcare Systems, Inc., 619 F.Supp.2d 1260, 1273 (M.D.
Fla. 2009) (dismissing complaint because group-pleading
method of collectively referring to individual defendants
and two physician groups as “Peer Review Defendants”
throughout complaint did not satisfy [FRCP] 9(a)).
1. Lt. Conforti, Det. Perdoch, Sgt. Rodriguez,
Lt. Hall, Det. Lee, and Sgt. Manfredi
[9] The Amended Complaint fails to allege facts from which
it can be reasonably inferred that Lt. Conforti, Det. Perdoch,
Sgt. Rodriguez, Lt. Hall, and Det. Lee had any involvement in
Plaintiff's Queens County criminal proceedings. Though the
lengthy Amended Complaint devotes six paragraphs to each
of these Defendants (see Am. Compl. ¶¶ 19–22, 82–83 (for Lt.
Conforti); Am. Compl. ¶¶ 27–30, 81–82 (for Det. Perdoch);
Am. Compl. ¶¶ 39–42, 82–83 (for Sgt. Rodriguez); Am.
Compl. ¶¶ 43–46, 82–83 (for Lt. Hall); Am. Compl. ¶¶ 55–58,
82–83 (for Det. Lee)), these paragraphs simply recite the same
conclusory, formulaic, and non-substantive allegations as to
each of these Defendants, asserting that they were “acting
within the course and scope of their employment” and “under
color of state law,” that they are being sued in their individual
and official capacities, and that they should be referred to
as “CITY DEFENDANTS” or “OFFICER DEFENDANTS.”
In short, Plaintiff does not allege that any of these five
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officers had even a minimal role in arresting, investigating,
or prosecuting *599 her. For Sgt. Manfredi, Plaintiff alleges
nothing more than that he was present at the 109th Precinct
when the Lis arrived with Det. Phelan. (See Am. Compl. ¶¶
104–105.) 11
[10] Based on Plaintiff's counsel's representation at the pre-
motion conference, it appears that Plaintiff named some
of these individual Defendants because they were listed
as having supervisory roles in the Queens County District
Attorney's press release (dated March 12, 2008). (See Ex. D,
Dkt. 63–4 at ECF 3.) Even though the Court takes judicial
notice of the press release, as noted, it does not take judicial
notice of the press release for the truth of its contents, i.e., that
the identified officers were, in fact, supervisors at the time of
Plaintiff's arrest and prosecution. See Roth, 489 F.3d at 509.
Furthermore, the mere listing of these officers as supervisors
in a press release is insufficient to create an inference of
personal involvement absent further allegations, especially
because “a defendant [may not] be held liable merely by
his connection to the events through links in the chain of
command.” Reynolds v. Goord, No. 98-cv-6722, 2000 WL
235278, at *7 (S.D.N.Y. Mar. 1, 2000); Colon, 58 F.3d at
873–74 (“The bare fact that [the defendant] occupies a high
position in the New York prison hierarchy is insufficient to
sustain [plaintiff's] claim.”).
2. P.O. Yam, Sgt. Cai, and Det. Chan
With respect to P.O. Yam, Sgt. Cai, and Det. Chan, the
allegations in the Amended Complaint are also insufficient to
show personal involvement in unlawful conduct that supports
any of Plaintiff's claims. Based on the Amended Complaint,
the participation of these officers was limited to serving as
translators during the investigations of Plaintiff's criminal
case. 12 (See Am. Compl. ¶¶ 35–38, 101, 104, 106 (for P.O.
Yam); Am. Compl. ¶¶ 51–54, 126 (for Sgt. Cai); Am. Compl.
¶¶ 59–62, 112, 119 (for Det. Chan); Am. Compl. ¶ 82–83
(for all Defendants).) While these translating officers are
alleged to have been present during the interviews of the Lis
by the other City Defendants, there are no other allegations
from which to infer that these three officers were involved,
in any way, in the conduct that gives rise to Plaintiff's
Section 1983 claims, e.g., arresting Plaintiff without probable
cause, initiating criminal process against her, forwarding
false or fabricated evidence to the prosecution, or concealing
exculpatory information from the prosecutors or the defense.
The translating officers' mere presence at the Lis' interviews
is simply not enough to allege their direct involvement in
the unlawful conduct at issue in this case, as opposed to
their incidental involvement in some of the events related to
Plaintiff's arrest and detention. All claims against P.O. Yam,
Sgt. Cai, and Det. Chan are, therefore, dismissed.
3. Dets. Moser, Phelan, and Heffernan
With respect to Dets. Moser, Phelan, and Heffernan, the Court
finds that Plaintiff has provided sufficient allegations as to
*600 their personal involvement in the conduct giving rise
to some, but not all, of Plaintiff's claims, as discussed infra.
(See Am. Compl. ¶¶ 112, 119, 126, 130 (alleging Det. Moser's
involvement in the investigation of the Lis); ¶¶ 102–104, 106,
109–111 (alleging Det. Phelan's involvement to the extent that
he went to the hospital, spoke to the hospital staff, examined
relevant medical charts, and interrogated Ying Li); ¶¶ 112,
126, 130 (alleging Det. Heffernan's involvement to the extent
that he interrogated Hang Bin Li and other witnesses).)
* * *
Accordingly, Lt. Conforti, Lt. Perdoch, Sgt. Rodriguez, Lt.
Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det.
Chan are dismissed as Defendants due to the insufficiency
of allegations establishing personal involvement. See Zurich
American Ins. Co. v. Dah Sing Bank, Ltd. No. 03–civ–7778,
2004 WL 1328215, at *6 (S.D.N.Y. Jun. 15, 2004) (dismissing
claims against one defendant bank where plaintiff did not
put forth “a single factual allegation” but instead “lump[ed]
the three bank defendants together and assert[ed] that they
collectively processed the checks”); Hernandez v. Goord, 312
F.Supp.2d 537, 548 (S.D.N.Y. 2004) (dismissing individual
defendants who were merely listed at the beginning of the
complaint and were never connected in the complaint to
any particular adverse action); see also S.B. v. City of New
York, No. 14-cv-1021, 2016 WL 4530455, at *13 (E.D.N.Y.
Aug. 29, 2016) (dismissing claims where the complaint did
“not even directly name any of the defendants or allege
the particular actions they undertook” (citation omitted));
Barber v. Ruzzo, No. 10-cv-1198, 2011 WL 4965343, at *2
(N.D.N.Y. Oct. 19, 2011) (“Simply stating that [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.”).
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IV. FALSE ARREST
[11] [12] [13] [14] A claim for false arrest under Section
1983, resting on the Fourth Amendment right to be free
from unreasonable seizures, including arrest without probable
cause, is substantially the same as that under New York
law. 13 Jenkins v. City of New York, 478 F.3d 76, 84 (2d
Cir. 2007) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996)). In analyzing Section 1983 claims for false arrest,
courts “generally look[ ] to the law of the state in which the
arrest occurred.” Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir.
2016) (quoting Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir.
2006)). Under New York law, a plaintiff must establish, inter
alia, that “the defendant intentionally confined him without
his consent and without justification.” Id. at 107 (quoting
Weyant, 101 F.3d at 852) (quotation marks omitted); see also
Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.
2012) (citing Broughton v. State of New York, 37 N.Y.2d 451,
456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)).
A. Plaintiff's False Arrest Claim is Barred by the
Statute of Limitations
[15] The statute of limitations for Section 1983 claims filed
in federal court in New York is determined by New York
State's statute of limitations for personal injury actions. See
*601 Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 102
L.Ed.2d 594 (1989) (discussing Wilson v. Garcia, 471 U.S.
261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which held that
courts deciding claims under Section 1983 should “borrow”
the State statute of limitations for personal injury actions);
see also Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d
Cir. 2002) (citing Owens ). In New York State, the applicable
statute of limitations for personal injuries is three years. N.Y.
C.P.L.R. § 214 (McKinney). Thus, Plaintiff should have filed
her false arrest claim within three years of the date on which
the cause of action accrued.
[16] [17] While the applicable limitations period is
determined by State law, the accrual date “is a question of
federal law”. Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct.
1091, 166 L.Ed.2d 973 (2007) (“[T]he accrual date of a §
1983 cause of action is a question of federal law that is
not resolved by reference to state law.” (emphasis in the
original)). Under federal law, a Section 1983 false arrest claim
accrues at the time that the alleged false arrest ends, i.e.,
when the arrestee “becomes held pursuant to [legal] process
—when, for example, he is bound over by a magistrate or
arraigned on charges.” Wallace, 549 U.S. at 389, 127 S.Ct.
1091; see also Lynch v. Suffolk Cnty. Police Dep't, Inc., 348
Fed.Appx. 672, 675 (2d Cir. 2009) (summary order) (applying
Wallace to find that plaintiff's § 1983 false arrest claim was
time-barred).
[18] Here, the Medical Center Defendants and the City
Defendants contend that Plaintiff's false arrest claim as to
all Defendants is time-barred. (Dkt. 55 at 4; Dkt. 64 at 3.)
Plaintiff concedes this (Dkt. 66 at 6), and the Court agrees.
Plaintiff was arrested on March 11, 2008 in connection with
her daughter's death. (Am. Compl. ¶ 133.) For Plaintiff's
false arrest claim to be timely, she must have made an initial
appearance or been arraigned on or after March 26, 2012,
i.e., three years from the filing of her complaint. See Wallace,
549 U.S. at 389, 127 S.Ct. 1091 (false arrest claim accrues
when plaintiff's false arrest ends and plaintiff becomes held
pursuant to legal process). However, Plaintiff alleges that she
was arrested on March 11, 2008 and that she was incarcerated
as of that date until March 26, 2012. 14 Because Plaintiff did
not bring her false arrest claim until March 2015, it is plainly
barred by the applicable three-year statute of limitations.
B. Equitable Tolling
[19] [20] Recognizing that the statute of limitations has run,
Plaintiff contends that equity demands tolling of the statute
of limitations. (Dkt. 66 at 7.) Plaintiff's claim for equitable
tolling is based on the notion of fraudulent concealment. 15
See Pearl, 296 F.3d at 81–84 (noting that the “taxonomy
of tolling, in the context of avoiding a *602 statute of
limitations, includes at least three phrases: equitable tolling,
fraudulent concealment of a cause of action, and equitable
estoppel,” and also recognizing that the Second Circuit
equates both equitable estoppel and equitable tolling with
fraudulent concealment).
[21] [22] When a “defendant fraudulently conceals the
wrong, the [statute of limitations] does not begin running
until the plaintiff discovers, or by the exercise of reasonable
diligence should have discovered, the cause of action.”
Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995)
(quoting Keating v. Carey, 706 F.2d 377, 382 (2d Cir. 1983));
Pearl, 296 F.3d at 81; see also Halstead v. City of New York,
No. 13-cv-4874, 2015 WL 1506133, at *4 (E.D.N.Y. Mar.
31, 2015). To benefit from this doctrine of equitable tolling
based on fraudulent concealment, the “plaintiff must submit
non-conclusory evidence of conspiracy or other fraudulent
wrong which precludes his possible discovery of harms that
he suffered.” Pinaud, 52 F.3d at 1157 (emphasis in original);
see also Govt. Employees Ins. Co. v. U.S., No. 13-cv-4063,
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2014 WL 582164 (E.D.N.Y. Feb. 14, 2014) (“the ‘burden
of demonstrating the appropriateness of equitable tolling ...
lies with the plaintiff.’ ” (quoting Boos v. Runyon, 201 F.3d
178, 184–85 (2d Cir. 2000))). The Second Circuit has made
clear that, “as a matter of fairness”, the doctrine should
only be applied “where a plaintiff has been ‘prevented in
some extraordinary way from exercising [her] rights’ ”.
Pearl, 296 F.3d at 85 (citation and quotation marks omitted).
Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005)
(noting that courts apply equitable tolling only in “rare and
exceptional circumstances” (citation and internal quotation
marks omitted)).
[23] Here, Plaintiff presents only an unsupported, conclusory
statement to justify equitable tolling: “[D]efendants' fraud,
misrepresentation, and deception, induced plaintiff from
filing a timely action. Defendants' misconduct caused the
plaintiff to delay in bringing suit and/or wrongfully deceived
or misled plaintiff in order to conceal the existence of a cause
of action.” (Am. Compl. ¶ 209.) The Amended Complaint
does not allege (a) which of the numerous Defendants
committed fraud, misrepresentation, or deception, (b) what
information was kept from Plaintiff, or (c) how the alleged
withholding of information made it impossible for Plaintiff
to discover the harms she had suffered. See, e.g., Harrison
v. Harlem Hosp., 364 Fed.Appx. 686, 688 (2d Cir. 2010)
(summary order) (“The appellants have failed to identify any
specific fact they have learned since the limitations period
expired which, if known by them sooner, would have led them
to file suit sooner.” (emphasis in original)).
In her opposition brief, Plaintiff claims that she became aware
of her false arrest only “when Plaintiff's attorneys were told ...
that there was no ‘medical proof’ that she could have saved
her daughter,” and that Plaintiff's reliance on Dr. Kupferman's
assessment that earlier medical intervention could have saved
Annie caused Plaintiff to delay filing her false arrest claim.
(Dkt. 66 at 7.) However, as the Medical Center Defendants
correctly point out, none of these factual allegations are in
Plaintiff's Amended Complaint. 16
*603 Furthermore, even assuming arguendo that Dr.
Kupferman had concealed information that might have
supported Plaintiff's false arrest claim, equitable tolling is still
not warranted if this alleged concealment did not sufficiently
justify Plaintiff's failure to pursue her cause of action. Paige
v. Police Dept. of City of Schenectady, 264 F.3d 197 (2d Cir.
2001). In Paige, the plaintiff, a minor at the time, was sexually
assaulted by a police officer. Id. at 198. She reported the
assault to the police department soon after it occurred, but
the department told her that there was insufficient evidence to
pursue the case. Id. Fifteen years later, the plaintiff found out
through a newspaper article that the police department might
have had an investigatory file with information identifying
the assaulting officer as the suspect, but chose not to pursue
the case. Id. at 199. In bringing a Section 1983 claim against
the City, the police department, and the suspected assaulting
officer, the plaintiff argued that none of her claims was time-
barred because (a) they did not accrue until the publishing of
the newspaper article, and, in the alternative (b) the statute
of limitations should be tolled until the date the article
was published under the doctrine of equitable tolling. Id.
The Second Circuit rejected both arguments finding, inter
alia, that the plaintiff had sufficient knowledge to timely
commence her causes of action without the investigatory file.
Id. at 200 (“Although some of the facts putatively concealed
by the defendants might have strengthened [plaintiff's] case ...
the absence of those facts did not sufficiently justify [plaintiff]
in not pursuing her cause of action as to merit equitable
tolling.”); see also Pearl, 296 F.3d at 78–85 (finding Section
1983 plaintiff, who alleged a brutal beating by four officers,
was not entitled to equitable tolling, despite one of the
officer's subsequent confession that the officers had fabricated
evidence against plaintiff; explaining that plaintiff had full
knowledge of his encounter with the officers and that the
officer's recantation was “not newly developed awareness of
a previously concealed cause of action”, but simply “more
persuasive evidence”).
Even accepting Plaintiff's new, and improperly asserted,
theory of fraudulent concealment, her case is
indistinguishable from Paige and Pearl: Plaintiff “had
full knowledge” of her actions relating to her child's
death, including whether she knowingly delayed getting
her child medical attention, and thus the purportedly
withheld information that earlier medical intervention might
not have saved Annie's life does not lead to a “newly
developed awareness of a previously concealed cause of
action”, but simply provides potentially persuasive evidence
for that claim. Indeed, Plaintiff fails to explain how Dr.
Kupferman's purported diagnosis with regard to Annie made
it “impossible” for Plaintiff to learn that she had a claim
for false arrest. See Pearl, 296 F.3d at 85 (reiterating that,
with respect to application of the equitable tolling doctrine,
“we made it clear that we had in mind a situation where a
plaintiff ‘could show that it would have been impossible for
a reasonably prudent person to learn’ about [her] cause of
action.” (emphasis in original)). In fact, some allegations in
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the Amended Complaint suggest that Plaintiff always knew
or believed that she had a false arrest claim. For example,
she alleges that she had “steadfastly denied wrongdoing
throughout the numerous interrogations *604 conducted by
Defendants,” even in the early stages of the investigation
of Annie's death. (See Am. Compl. ¶ 127; see also Am.
Compl. ¶ 118 (“Ying Li, however was positive that she did not
harm her daughter, that she never saw Hang Bin do anything
but love and treasure Annie. She maintained her innocence
throughout.”).) Plaintiff also pleaded not guilty to all counts in
the criminal complaint and indictment. (Am. Compl. ¶ 179.)
Furthermore, Plaintiff also alleges in the Amended Complaint
that she made diligent attempts to disprove the shaken baby
syndrome diagnosis of Annie, thereby demonstrating her
belief from the time of her arrest that the diagnosis was wrong
and that Plaintiff had been falsely arrested and accused of
causing her daughter's death, whether by SBS or failing to
get her daughter prompt medical attention. (See, e.g., AC ¶
197 (“In May of 2012[,] Judge Gregory Lasak ordered further
DNA testing done on [the Lis], after the OI [Osteogenesis
Imperfecta] 17 gene had been detected in Hang Bin Li.”).)
While Plaintiff may have “diligently attempted to disprove
Kupferman's ... diagnosis (Dkt. 66 at 7), in this case, it only
reinforces the conclusion that Plaintiff was aware of her false
arrest claim before 2013.
In sum, Plaintiff's Amended Complaint provides only
an unsupported, conclusory assertion regarding “fraud,
misrepresentation, and deception” that is patently insufficient
to support equitable tolling with respect to her false arrest
claim, which is barred by the three-year statute of limitations.
Furthermore, even Plaintiff's belated and improper assertion
of facts regarding the withholding of information by the
Medical Center Defendants fails to show that Plaintiff could
not have timely brought her false arrest claim, and thus
even these facts, if accepted as true, would not support the
application of the equitable tolling doctrine.
Accordingly, Defendants' motions to dismiss Plaintiff false
arrest claim are granted. 18
V. MALICIOUS PROSECUTION
[24] [25] [26] Plaintiff asserts a federal malicious
prosecution claim against all Defendants. (Am. Compl. ¶
211–213.) To allege a Section 1983 claim for malicious
prosecution, a plaintiff must allege the four elements of a
malicious prosecution claim under New York law—“(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”—as well as a violation of the plaintiff's rights under
the Fourth Amendment. 19 *605 Manganiello v. City of New
York, 612 F.3d 149, 160–61 (2d Cir. 2010) (citations and
quotation marks omitted); Cornejo, 592 F.3d at 129 (“And §
1983, in recognizing a malicious prosecution claim when the
prosecution depends on a violation of federal rights, adopts
the law of the forum state so far as the elements of the claim
for malicious prosecution are concerned.” (citation omitted));
see also Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 116–
117 (2d Cir. 1995) (relying in part on common law and New
York State malicious prosecution law in analyzing § 1983
malicious prosecution claim). In establishing a violation of
a Fourth Amendment right in relation to a Section 1983
malicious prosecution claim, a plaintiff must demonstrate
“a sufficient post-arraignment deprivation[ ] of liberty.” 20
Singer, 63 F.3d at 117; see also Rohman v. New York City
Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (noting that it
is insufficient for a plaintiff to assert only the four elements
of New York State malicious prosecution claim alone).
The Medical Center Defendants contend that Plaintiff cannot
satisfy three out of the five requisite elements—specifically,
favorable termination, lack of probable cause, and malice.
(Dkt. 55 at 5–9.) The City Defendants argue that Plaintiff's
claim must be dismissed because there was probable cause
and because none of the Officer Defendants initiated the
prosecution against Plaintiff. (See Dkt. 59 at 7–11.) For
the reasons stated below, the Court finds that Plaintiff has
adequately alleged a malicious prosecution claim against Det.
Degnan, Dr. Landi, and also Dr. Kupferman, but not as to
all of the other Defendants. The malicious prosecution claim
is dismissed as to Dets. Moser, Phelan, and Heffernan, Lt.
Conforti, Lt. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, Sgt.
Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan.
A. Initiation of a Criminal Proceeding
[27] [28] [29] To initiate or continue a criminal
proceeding, “a defendant must do more than report the
crime or give testimony. He must play an active role in
the prosecution, such as giving advice and encouragement
or importuning the authorities to act.” Manganiello, 612
F.3d at 163 (quoting Rohman, 215 F.3d at 217) (alteration
and internal quotation marks omitted). An active role in
prosecution is inferred when a defendant had the plaintiff
arraigned, filled out a complaining and corroborating
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affidavit, or signed a felony complaint. See Cameron v. City
of New York, 598 F.3d 50, 63 (2d Cir. 2010) (noting that a
police officer can initiate prosecution by filing charges or
other accusatory instruments); see also Costello v. Milano,
20 F.Supp.3d 406, 415 (S.D.N.Y. 2014). Additionally, 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.” Costello, 20 F.Supp.3d at 415; see also Llerando
Phipps v. City of New York, 390 F.Supp.2d 372, 383 (S.D.N.Y.
2005) (“[A]n arresting *606 officer may be held liable for
malicious prosecution [if he] creates false information likely
to influence a jury's decision and forwards that information
to prosecutors.” (citation and quotation marks omitted));
Webster v. City of New York, 333 F.Supp.2d 184, 198–
99 (S.D.N.Y. 2004) (noting that police officers could be
held liable for malicious prosecution if they provided false
information to prosecutors).
The Medical Center Defendants do not dispute that they
took part in the initiation of the criminal proceeding (see
Dkt. 55), whereas the City Defendants contend that Plaintiff's
Amended Complaint only alleges active participation in the
prosecution by Det. Degnan (see Dkt. 59 at 9 n.10). The Court
finds that the Amended Complaint contains sufficient factual
allegations to support a plausible inference that not only Det.
Degnan, but also Dr. Landi, initiated Li's prosecution. 21 (See
Am. Compl. ¶ 149.)
[30] [31] Plaintiff has adequately alleged that Det. Degnan
initiated the prosecution, because the Amended Complaint
alleges that Det. Degnan swore to the criminal complaint.
(See Am. Compl. ¶ 145.) Plaintiff has also alleged that Dr.
Landi “swore under oath in the criminal complaint against
plaintiff” and made assertions that were “false, misleading,
and perjurious, and entirely unsupported and unsupportable
by any medical science or clinical or forensic evidence.” (Am.
Compl. ¶¶ 149–150.) See Cameron, 598 F.3d at 63 (noting that
a police officer can initiate prosecution by filing charges or
other accusatory instruments). The Amended Complaint also
alleges that Dr. Landi “played an active role in the prosecution
of Ying Li. She provided advice and encouragement, that
went well beyond her role, and into ancillary and forensic
aspects of motive, culpability, and the veracity of Ying
Li.” (Am. Compl. ¶ 155.)
These City Defendants “cannot hide behind the decision of
the DA to prosecute” when they, according to Plaintiff's
allegations, provided the prosecutor with false information.
Blake v. Race, 487 F.Supp.2d 187, 211 (E.D.N.Y. 2007)
(rejecting the defendants' argument that the District Attorney,
not the officers, initiated the prosecution); Zahrey v. Coffey
(“Coffey”), 221 F.3d 342, 352 (2d Cir. 2000) (“[I]t is
not readily apparent why the chain of causation should
be considered broken where the initial wrongdoer can
reasonably foresee that his misconduct will contribute to
an ‘independent’ decision that results in a deprivation
of liberty.”) Therefore, the Court finds that Plaintiff
has adequately alleged that Det. Degnan and Dr. Landi
participated in the initiation of Plaintiff's criminal proceeding.
By contrast, the Amended Complaint contains no factual
allegations to support the inference that Dets. Moser,
Phelan, *607 and Heffernan, Lt. Conforti, Lt. Perdoch,
Sgt. Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi, P.O.
Yam, Sgt. Cai, and Det. Chan played an active role
in initiating Plaintiff's prosecution. Therefore, as to these
Defendants, the malicious prosecution claim is dismissed.
See, e.g., Jean–Laurent v. Bowman, No. 12-cv-2954, 2014
WL 4662221, at *6 (E.D.N.Y. Jul. 7, 2014) (finding that
plaintiff failed to demonstrate that some of the defendants
played an active role in commencing the criminal prosecution
against plaintiff, even though plaintiff alleged that they
“authorized, approved and/or participated” in plaintiff's
criminal prosecution, because the defendants neither swore
out a criminal complaint or corroborating affidavit, nor
presented any information to the prosecutor).
B. Favorable Termination
The second element of a malicious prosecution claim is
termination of the criminal proceeding in the plaintiff's favor.
The Medical Center Defendants argue that Plaintiff's criminal
proceeding did not terminate in her favor because (i) the
prosecution was not terminated on its merits, (ii) Plaintiff
does not set forth factual allegations to support an inference
that the charges were dropped because she was innocent,
and (iii) a dismissal “in the interest of justice” does not
constitute a favorable termination. (See Dkt. 56 at 5–8.)
The Court disagrees, and finds that Plaintiff has sufficiently
alleged a favorable termination for purposes of her malicious
prosecution claim. 22
[32] [33] The Court looks to New York law to determine
whether Plaintiff has sufficiently alleged a favorable
termination of her Queens County criminal proceeding. Neal
v. Fitzpatrick, 250 F.Supp.2d 153, 154 (E.D.N.Y. 2003)
(citing Hygh v. Jacobs, 961 F.2d 359, 367 (2d Cir. 1992)).
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“Under New York law, there are two ways to establish [a]
favorable termination: ‘(1) an adjudication of the merits by
the tribunal in the prior action,’ or (2) ‘an act of withdrawal
or abandonment on the part of the party prosecuting the
prior action.’ ” Liberty Synergistics, Inc. v. Microflo Ltd.,
50 F.Supp.3d 267 (E.D.N.Y. 2014) (quoting Morgan v.
Nassau County, No. 03-cv-5109, 2009 WL 2882823, at *8
(E.D.N.Y. Sept. 2, 2009) and citing Castro v. East End Plastic,
Reconstructive & Hand Surgery, P.C., 47 A.D.3d 608, 850
N.Y.S.2d 483, 485 (2008)); Castro, 850 N.Y.S.2d at 485
(“The favorable termination element must be established by
evidence that ‘the court passed on the merits of the charge or
claim ... under circumstances as to show ... nonliability,’ or
evidence that the action was abandoned under circumstances
‘which fairly imply the plaintiff's innocence.’ ”) (citation
and internal quotation marks omitted). Thus, the fact that
a criminal prosecution never reached the merits does not
preclude a plaintiff from alleging a favorable termination.
See Castro, 850 N.Y.S.2d at 485; see also Norton v. Town of
Brookhaven, 47 F.Supp.3d 152, 158 (E.D.N.Y. 2014) (noting,
on reconsideration, “the fact that the underlying prosecutions
against the Plaintiff [were dismissed pursuant to statutes that]
did not reach the merits does not, without more, render the
termination of the prosecution inconsistent with innocence”);
Verboys v. Town of Ramapo, 12 A.D.3d 665, 785 N.Y.S.2d
496, 497 (2004) (holding that favorable termination can be
shown by “the formal abandonment of the proceedings”).
[34] [35] Furthermore, “New York law does not require a
malicious prosecution *608 plaintiff to prove her innocence,
or even that the termination of the criminal proceeding was
indicative of innocence.” Rothstein v. Carriere, 373 F.3d
275, 286 (2d Cir. 2004) (citing Smith–Hunter v. Harvey, 95
N.Y.2d 191, 195–96, 712 N.Y.S.2d 438, 734 N.E.2d 750
(2000)). “[A]ny final termination of a criminal proceeding
in favor of the accused, such that the proceeding cannot
be brought again, qualifies as a favorable termination for
purposes of a malicious prosecution action,” Smith–Hunter,
95 N.Y.2d at 195–96, 712 N.Y.S.2d 438, 734 N.E.2d 750,
unless the disposition was “inconsistent with the innocence
of the accused,” Cantalino v. Danner, 96 N.Y.2d 391, 396,
729 N.Y.S.2d 405, 754 N.E.2d 164 (2001). See Rothstein,
373 F.3d at 275 (discussing New York Law regarding the
favorable termination element and citing to both Smith–
Hunter, 95 N.Y.2d 191, 712 N.Y.S.2d 438, 734 N.E.2d 750,
and Cantalino, 96 N.Y.2d 391, 729 N.Y.S.2d 405, 754 N.E.2d
164); see also Stampf v. Long Island R. Co., 761 F.3d 192, 201
(2d Cir. 2014) (applying Smith–Hunter, 95 N.Y.2d 191, 712
N.Y.S.2d 438, 734 N.E.2d 750 (2000)).
While New York and federal courts in this circuit have
consistently applied the Cantalino “not inconsistent with
innocence” standard in deciding whether a termination is
favorable, there is open disagreement and divergence in this
circuit on the constituent issue of whether the termination
of a criminal case “in the interest of justice” is a favorable
termination, i.e., a termination that is not inconsistent with
innocence. 23 See Gem Financial Serv., Inc. v. City of New
York, No. 13-cv-1686, 2014 WL 1010408, at *10 n.10
(E.D.N.Y. Mar. 17, 2014) (recognizing “an apparent fissure
amongst Second Circuit opinions with respect to the proper
standard for assessing a favorable termination” where an
“interest of justice” dismissal is involved). On the one hand,
the New York Court of Appeals in 2001 held in Cantalino
that there is no “per se rule that a dismissal in the interest
of justice can never constitute a favorable termination.”
96 N.Y.2d at 396, 729 N.Y.S.2d 405, 754 N.E.2d 164. 24
Nonetheless, in 2009, the Second Circuit in a summary order
in Lynch v. Suffolk County Police Dep't, Inc. found, “as a
matter of law”, that a dismissal in the interest of justice
could not “provide the favorable termination required as the
basis for a claim of malicious prosecution”, because such a
dismissal was “neither an acquittal of the charges nor any
determination of the merits[, and left] the question of guilt
or innocence unanswered”. 348 Fed.Appx. 672, 675 (2d Cir.
2009) (citing Hygh, 961 F.2d 359). Even after the Lynch
decision, district courts in this circuit have continued to apply
Cantalino to find that an “interest of justice” termination can
be deemed favorable in a malicious prosecution action. See
Norton, 47 F.Supp.3d at 160 (collecting district court cases
that adopted Cantalino even after Lynch ); *609 Guzman
v. United States, No. 11-CV-5834, 2013 WL 543343, at
*8 (S.D.N.Y. Feb. 14, 2013) (collecting cases decided by
the Southern District of New York that applied Cantalino
even after the Second Circuit decided Lynch ); see, e.g.,
Genovese v. Cnty. of Suffolk, 128 F.Supp.3d 661, 672 n.3
(E.D.N.Y. 2015) (declining to apply the standard set forth
in Lynch, noting that it is a non-binding summary order
failing to cite to Cantalino, which had already been decided
at the time Lynch was decided). Other courts, however, have
followed Lynch in dismissing malicious prosecution claims
involving “interest of justice” dismissals. See Norton, 47
F.Supp.3d at 160–161 (citing Tribie v. Parwanta, No. 10 Civ.
6016, 2012 WL 246619, at *8 (S.D.N.Y. Jan. 26, 2012) and
Paulin v. Figlia, 916 F.Supp.2d 524, 533 (S.D.N.Y. 2013)).
However, as discussed below, notwithstanding the Medical
Center Defendants' argument, the Court need not resolve this
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issue in order to determine whether Plaintiff has sufficiently
alleged a favorable termination.
[36] The Court now turns to the Medical Center Defendants'
three arguments. First, the argument that Plaintiff cannot
show a favorable termination because her criminal case
was not terminated on the merits is plainly unavailing. As
discussed, there are “two ways to establish a favorable
termination”, one of which is the “act of withdrawal or
abandonment” of the case by the prosecution, which is
what Plaintiff alleges happened here. (Am. Comp. ¶ 201
(“Contemporaneously with the commencement of Hang Bin's
trial, all charges against plaintiff were dismissed.”).)
Second, the argument that Plaintiff has not sufficiently alleged
malicious prosecution because she has not alleged facts from
which it can be inferred that the criminal charges against her
were dropped because she was innocent similarly lacks merit.
As the New York Court of Appeals made clear in Smith–
Hunter, a claim of malicious prosecution does not require
that the plaintiff prove her innocence of the charges that were
dropped, or even that the termination of her prosecution was
indicative of innocence. 95 N.Y.2d at 195–96, 712 N.Y.S.2d
438, 734 N.E.2d 750. 25 *610 Rather, all that is required
after Smith–Hunter and Cantalino is that the termination
of Plaintiff's case was “final,” e.g., that the charges were
dismissed with prejudice, and that the termination did not fall
into one of the exceptions recognized by Cantalino, e.g., that
the disposition of Plaintiff's criminal case was “inconsistent
with innocence”. Cantalino, 96 N.Y.2d at 396, 729 N.Y.S.2d
405, 754 N.E.2d 164. Thus, the absence of any allegations
demonstrating that the termination of Plaintiff's prosecution is
indicative of her innocence of the charges that were dropped
does not preclude her malicious prosecution claim.
Third, the Medical Center Defendants argue that the
termination of Plaintiff's prosecution was an “interest of
justice” dismissal and therefore does not constitute a
favorable termination. However, the Court cannot make that
determination at this stage, because it cannot determine the
reason or reasons for the District Attorney's dismissal of the
charges against Plaintiff. The Amended Complaint simply
alleges that, “Defendants ... caused plaintiff to be prosecuted
with malice and without probable cause—a prosecution that
terminated in plaintiff's favor....” 26 (Am. Compl. ¶ 212
(emphasis added).) Although Plaintiff does not allege the
specific disposition of the case, the Court finds she has
sufficiently alleged favorable termination to survive a motion
to dismiss. See Rivers v. Towers, Perrin, Foster & Crosby
Inc., No. 07-cv-5441, 2009 WL 817852, at *4 (E.D.N.Y.
Mar. 27, 2009) (“There is nothing implausible about a bare
allegation that the prosecution terminated in plaintiff's favor
and hence there is no need to amplify that allegation by
pleading specific facts.”); see also Norton, 47 F.Supp.3d
at 161 (reinstating plaintiff's malicious prosecution claim
on reconsideration after concluding that the court cannot
conclude that the dismissal of the charges was inconsistent
with plaintiff's innocence); McLennon v. New York City, No.
13-cv-128, 2015 WL 1475819, at *6 n.16 (E.D.N.Y. Mar.
31, 2015); Peros v. Castano, No. CV-01-4457, 2002 WL
603042, at *4 (E.D.N.Y. Mar. 22, 2002) (stating, “Although
there apparently is some uncertainty as to the precise basis
of the state court's dismissal of the criminal charges, I cannot
say at this point that there is no set of facts on which
plaintiff could satisfy the favorable termination element of
his claim,” when plaintiff's Complaint alleged “[t]hat after
the Plaintiff was arraigned on [ ] charges [and] appeared
in Court ... the case was finally disposed of by the Court
granting the Motion to Dismiss.” (citation omitted)); accord
Tommy Hilfiger Lic., Inc. v. Bradlees, Inc., No. 99-CIV-4677,
2002 WL 737477, at *6 (S.D.N.Y. Apr. 25, 2002) (finding
that the defendant sufficiently alleged favorable termination
to withstand a motion to dismiss because the basis for the
dismissal of the criminal action was unclear at that particular
stage of litigation) (citation omitted); Bacquie v. City of
New York, No. 99-CIV-10951, 2000 WL 1051904, at *3
(denying defendant's motion to dismiss plaintiffs' malicious
prosecution claim where the plaintiffs alleged that the charges
against them were dismissed by the district attorney's *611
motion and where, at the early stage in the litigation, the Court
could not tell why the charges had been dropped); but see
Campbell v. Giuliani, No. 99-cv-2603, 2000 WL 194815, at
*4 (E.D.N.Y. Feb. 16, 2000) (“I find that the bare allegation
of dismissal, absent any explanation of the basis on which
the case was dismissed, is insufficient to meet the favorable
termination requirement.”); Weaver v. Warrington, No. 14-
cv-7097, 2015 WL 4645298, at *5 (E.D.N.Y. Aug. 4, 2015)
(directing plaintiff to amend the complaint alleging additional
facts that make clear whether the dismissal was under
circumstances not inconsistent with plaintiff's innocence). It
is important to note that while the Court has taken judicial
notice of the criminal court records submitted by Plaintiff and
the City Defendants, including the transcript of the conference
at which Plaintiff's case was dismissed, the Court has only
considered those documents to establish the date and fact of
the dismissal, but not for the truth of statements made by ADA
Bishop at the conference as to why Plaintiff's case was being
dismissed. See Global Network Commc'ns, Inc., 458 F.3d at
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157 (“A court may take judicial notice of a document filed
in another court not for the truth of the matters asserted in
the other litigation, but rather to establish the fact of such
litigation and related filings.”).
Accordingly, the Court finds that Plaintiff has adequately
alleged a favorable termination of her criminal proceedings.
C. Probable Cause
The Medical Center Defendants also contend that Plaintiff's
malicious prosecution claim must be dismissed because there
was probable cause. (Dkt. 55 at 8.) Specifically, they assert
that the Amended Complaint's factual allegations regarding
Annie's condition when she arrived at FHMC and her
subsequent medical test results are sufficient to establish the
existence of probable cause at the time criminal proceedings
were initiated against Plaintiff. (Dkt. 55 at 8) They also
argue that there is a presumption of probable cause unless
the indictment was procured through improper means. (Dkt.
55 at 9.) For the reasons explained below, the Court finds
that Plaintiff has rebutted the presumption of probable cause,
and that the facts alleged in the Amended Complaint support
a plausible inference that there was no probable cause for
Plaintiff's prosecution.
[37] [38] [39] As an initial matter, the Court notes
that probable cause for malicious prosecution is different
from probable cause for false arrest. See Posr v. Court
Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999)
(“The defendants seem to conflate probable cause to arrest
with probable cause to believe that [the plaintiff] could be
successfully prosecuted. Only the latter kind of probable
cause is at issue with respect to the malicious prosecution
claim....”). For a malicious prosecution claim, probable cause
to prosecute consists of “facts and circumstances [that] 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) (citing Colon v. City of New York, 60 N.Y.2d 78, 82,
455 N.E.2d 1248, 468 N.Y.S.2d 453 (N.Y. 1983)). 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.” Drummond v. Castro,
522 F.Supp.2d 667, 677–78 (S.D.N.Y. 2007) (citations and
quotation marks omitted).
[40] [41] A grand jury indictment “gives rise to a
presumption that probable cause exists” and thereby defeats
a claim for malicious prosecution. Rentas v. Ruffin, 816 F.3d
214, 220 (2d Cir. 2016) (quoting McClellan v. Smith, 439
F.3d 137, 145 (2d Cir. 2006)). “If plaintiff is to succeed in
his malicious prosecution action after he has been indicted,
he must establish that the *612 indictment was produced
by fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith.” McClellan, 439 F.3d at
145 (quoting Colon, 60 N.Y.2d at 83, 468 N.Y.S.2d 453, 455
N.E.2d 1248). 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 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.” Rothstein, 373 F.3d
at 283 (quoting Colon, 60 N.Y.2d at 82–93, 468 N.Y.S.2d 453,
455 N.E.2d 1248).
1. Rebutting the Presumption of
Probable Cause as to the City Defendants
[42] Plaintiff alleges that the indictment against her was
procured by bad faith on the part of the City Defendants.
Plaintiff alleges that “the Officer Defendants failed to obtain
or disclose evidence inconsistent with plaintiff's guilt, did
not document or inform the district attorney's office of
exculpatory evidence, falsely reported facts in reports and
search warrant affidavits, and fabricated oral statements of
witnesses. Officers sought to strengthen their case against
plaintiff in order to avoid acquittal, leading them to falsify
and omit information in their reports and representations
to the district attorney's office.” (Am. Compl. ¶ 178; see
also id. ¶ 181.) More specifically, Plaintiff alleges that
“it was apparent from medical evidence that [she] was
innocent.” (Am. Compl. ¶ 201.) Plaintiff also alleges that Dr.
Landi “enthusiastically and with commitment” sought the Lis'
prosecution and conviction “despite the lack of any evidence
connecting them with any crime whatsoever.” (Am. Compl.
¶ 171.) The Amended Complaint further alleges that Dr.
Landi misrepresented that the medical evidence conclusively
showed Plaintiff's guilt. (Am. Compl. ¶ 208.)
Taking these allegations as true and given the circumstantial
nature of the case against Plaintiff, which, in turn, rested
almost entirely on Dr. Landi's and Dr. Kupferman's medical
conclusions, the Court finds that these allegations are
sufficient to rebut the presumption of probable cause created
by the grand jury indictment. See Anilao v. Spota, 774
F.Supp.2d 457, 494 (E.D.N.Y. 2011) (denying defendant's
motion to dismiss finding that plaintiff sufficiently overcame
the presumption of probable cause by alleging that the grand
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jury indictment was based on falsified evidence and testimony
in spite of defendant's knowledge of significant exculpatory
evidence, and that the defendants agreed to present false
evidence to the grand jury); McLennon, 2015 WL 1475819,
at *8 (finding sufficient allegations similar to Plaintiff's
allegations about Defendants procuring indictment in bad
faith); see also 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).
Accordingly, the Court finds that Plaintiff has sufficiently
rebutted the presumption of probable cause.
2. Rebutting the Presumption of Probable
Cause Against the Medical Center Defendants
Plaintiff also sufficiently alleges that the indictments were
procured in bad faith by the Medical Center Defendants.
For example, Plaintiff alleges that “Defendant FHMC and
Kupferman made no efforts to seek a diagnosis other than
SBS.” 27 (Am. *613 Compl. ¶ 122.) This claim is analogous
to an allegation that a police officer failed to obtain evidence
inconsistent with a plaintiff's guilt, which has been considered
sufficient to allege that an indictment was procured in bad
faith. See McLennon, 2015 WL 1475819, at *8 (finding bad
faith sufficiently alleged where officer defendants accused of,
inter alia, failing to obtain or disclose evidence inconsistent
with plaintiff's guilt and not informing the district attorney's
office of exculpatory evidence).
[43] While the Court acknowledges that a grand jury witness
is entitled to absolute immunity in Section 1983 actions,
Rehberg v. Paulk, 566 U.S. 356, 132 S.Ct. 1497, 182 L.Ed.2d
593 (2012), the Second Circuit's decision in Coggins v.
Buonora, 776 F.3d 108 (2d Cir. 2015), provides a clarification
of this principle that is applicable to Plaintiff's malicious
prosecution claim against Dr. Kupferman. In Coggins, the
plaintiff was arrested and charged with various felonies based
on allegations made by two officers in police paperwork
and also verbally to the grand jury. 776 F.3d 108. The
Second Circuit affirmed the district court's denial of absolute
immunity to one of the police officers because the plaintiff's
Section 1983 claims against that officer were based on alleged
misconduct “prior to and independent of [the police officer's]
perjurious grand jury appearance.” Id. at 113 (“The fact
that [the police officer's] grand jury testimony paralleled
information he gave in other contexts does not mean that
[plaintiff's] malicious prosecution claim was ‘based on’ [the
officer's] grand jury testimony[;] ... [thus,] the district court
properly found that absolute immunity is inappropriate.”)
Similarly, here, Plaintiff alleges that, separate and apart from
Dr. Kupferman's grand jury testimony, the Medical Center
Defendants, including Dr. Kupferman, diagnosed Annie with
SBS in bad faith and provided false information about the
cause of Annie's death to the prosecutor. (See Am. Compl.
¶¶ 122, 150–52.) 28 Therefore, even assuming that Plaintiff
cannot rebut the presumption of probable cause based on Dr.
Kupferman's grand jury testimony alone, Plaintiff has done
so based on other allegedly wrongful acts by Dr. Kupferman.
Accordingly, the Court finds that Plaintiff has rebutted the
presumption of probable cause.
3. Amended Complaint Sufficiently Alleges
Lack of Probable Cause to Prosecute
For the same reasons just discussed, the Court finds that
the allegations in the Amended Complaint are sufficient
to create a plausible inference that there was no probable
cause to prosecute Plaintiff at the time she was indicted.
The case against Plaintiff was almost entirely circumstantial
and depended upon the accuracy of the Medical Center
Defendants' determination that SBS and the failure to obtain
prompt medical attention caused Annie's death. Plaintiff's
allegations that both the Medical Center Defendants and the
City Defendants *614 failed to obtain evidence that would
have contradicted these findings—i.e., that Annie suffered
from osteogenesis imperfecta, and that Annie's brain damage
was so extensive that prompter medical intervention would
not have saved her life—and the resulting communication of
false or incomplete information to the prosecutors support
a plausible inference that there was no probable cause to
prosecute when Plaintiff was indicted.
D. Malice
[44] [45] To plead a malicious prosecution claim, Plaintiff
must also allege malice for each of the Defendants.
Manganiello, 612 F.3d at 160–61. “[M]alice may be shown by
proving that the prosecution complained of was undertaken
from improper or wrongful motives, or in reckless disregard
of the rights of the plaintiff.” Id. at 163; see also TADCO
Const. Corp. v. Dormitory Auth. of State of New York,
700 F.Supp.2d 253, 271 (E.D.N.Y. 2010) (“Actual malice
requires pleading facts that show the defendant ‘commenced
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the prior criminal proceeding due to a wrong or improper
motive, something other than a desire to see the ends of
justice served.’ ” (citation and quotation marks omitted));
Manbeck v. Micka, 640 F.Supp.2d 351, 377 (S.D.N.Y. 2009)
(“Malice in this context does not have to be actual spite
or hatred.” (citation, internal quotation marks, and alteration
omitted)); Newton v. City of New York, 566 F.Supp.2d 256,
273 (S.D.N.Y. 2008) (Malice is “a wrong or improper
motive[.]” (citations and quotation marks omitted)). “[A]
lack of probable cause generally creates an inference of
malice.” Manganiello, 612 F.3d at 163 (citation and quotation
marks omitted) (emphasis added); see also Lowth v. Town
of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (“In most
cases, the lack of probable cause—while not dispositive
—‘tends to show that the accuser did not believe in the guilt
of the accused, and malice may be inferred from the lack of
probable cause.’ ” (quoting Conkey v. State, 74 A.D.2d 998,
427 N.Y.S.2d 330, 332 (1980))).
1. The City Defendants' Malice
[46] [47] Drawing all inferences in favor of Plaintiff, the
Court finds that Plaintiff has adequately pled malice only for
Det. Degnan and Dr. Landi. (Am. Compl. ¶ 145 (alleging
that Degnan signed the criminal complaint knowing that its
content was false and fabricated); see also Am. Compl. ¶
150 (alleging that Dr. Landi swore under oath in the criminal
complaint and made a statement that was false, perjurious,
and entirely unsupported by any medical science or clinical
or forensic evidence).) Plaintiff incorrectly argues that she
has “plainly alleged malice” for all Defendants and directs
the Court to Paragraph 215 of the Complaint. However, that
paragraph is conclusory and is one of the numerous instances
where Plaintiff resorts to “group pleading” against all the
Defendants. 29 While Paragraph 215 properly alleges an
improper motive for her prosecution, i.e., to “us[e] plaintiff as
a bargaining chip to pressure Hang Bin Li to plead guilty and
covering up defendants' illegal actions in *615 knowingly
arresting plaintiff without any legal basis, justification, or
probable cause[,]” it fails to allege any facts upon which to
plausibly infer that each of the City Defendants acted out
of this improper motive, and instead categorically states that
they all had the same improper motive. Such conclusory
allegations are not enough to infer malice on the part of all
City Defendants. The Court, therefore, finds that malice has
been sufficiently alleged only as to Det. Degnan and Dr.
Landi.
2. The Medical Center Defendants' Malice
[48] Notwithstanding Plaintiff's failure to cite to the relevant
paragraphs in the Complaint, the Court finds that Plaintiff has
adequately alleged malice on the part of the Medical Center
Defendants. Plaintiff alleges that Defendants “arrested and
imprisoned [her] despite knowing that there was no legal
justification ... in order to pressure plaintiff to testify against
her husband ... or to put pressure on plaintiff's husband to
plead guilty.” (Am. Compl. ¶ 196.) More specifically, Plaintiff
alleges that “[d]espite lab results showing high alkaline
phosphatase and low calcium, consistent with metabolic bone
disesase,” FHMC and Dr. Kupferman “made no effort to
seek a diagnosis other than SBS.” (Am. Compl. ¶ 122).
Plaintiff also alleges, in describing “the interrogations and
searches of [the Lis'] home by three separate squads ...
[and] forensic interrogations by several medical personnel at
Flushing Hospital,” that she was treated with “suspicion and
unconcealed and unrestrained racism.” (Am. Compl. ¶ 114.)
Drawing inferences in the light most favorable to Plaintiff,
the Court finds that Plaintiff has sufficiently alleged malice
on the part of the Medical Center Defendants, based on
their motives in concealing exculpatory medical evidence to
enable the prosecutor's use of Plaintiff as a “bargaining chip”
against Plaintiff's husband 30 and conducting racially biased
“forensic interrogations” of her.
* * *
Accordingly, the Medical Defendants' motion to dismiss the
malicious prosecution claim is denied in its entirety, and
the City Defendants' motion to dismiss Plaintiff's malicious
prosecution claim is denied as to Det. Degnan and Dr. Landi,
but is granted as to all other City Defendants. 31
VI. ABUSE OF PROCESS
[49] [50] [51] Plaintiff also asserts a claim of abuse of
process under Section 1983 against the City Defendants. 32
As with malicious prosecution, the Court looks to State law
for the elements of a Section 1983 abuse of process claim.
Mangino v. Incorporated Village of Patchogue, 808 F.3d 951,
958 n.5 (2d Cir. 2015) (citing Cook v. Sheldon, 41 F.3d 73,
80 (2d Cir. 1994) and Savino v. City of New York, 331 F.3d
63, 76–77 (2d Cir. 2003)). Under New *616 York law, “a
malicious abuse-of-process claim lies against a defendant
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who (1) employs regularly issued legal process to compel
performance or forbearance of some act (2) with the intent
to do harm without excuse of justification and (3) in order
to obtain a collateral objective that is outside the legitimate
ends of the process.” Savino, 331 F.3d at 76 (quoting Cook, 41
F.3d at 80); Hoffman v. Town of Southampton, 523 Fed.Appx.
770, 771 (2d Cir. 2013) (summary order) (citing Savino, 331
F.3d 63). In the context of an abuse of process claim, “legal
process means that a court issued the process, and the plaintiff
will be penalized if he violates it.” Cook, 41 F.3d at 80
(quoting Mormon v. Baran, 35 N.Y.S.2d 906, 909 (Sup. Ct.
1942)). So, for example, an arrest executed by the officers
for a “ ‘collateral objective outside the legitimate ends of the
process’, satisfies the first element of an abuse of process
claim.” Crockett v. City of New York, No. 11-CV-4378, 2015
WL 5719737, at *10 (E.D.N.Y. Sept. 29, 2015) (citation
and quotation marks omitted); see also Cook, 41 F.3d at
80 (finding, with respect to abuse of process claim, that
New York State Troopers who stopped and arrested plaintiff
“clearly employed criminal process against [plaintiff] by
having him arraigned on charges” that caused him to be held
in custody). Notably, in TADCO Const. Corp., the court found
that allegations that defendants “improperly contributed to
[plaintiff's] arrest, but not that they took any further actions
in his prosecution” were sufficient to withstand a motion to
dismiss an abuse of process claim. 700 F.Supp.2d at 272
(recognizing “split of opinion” on whether mere act of issuing
process is sufficient for first element of malicious abuse of
process claim).
[52] [53] “The crux of a malicious abuse of process claim
is the collateral objective element.” Kraft v. City of New
York, 696 F.Supp.2d 403, 416 (S.D.N.Y. 2010), aff'd, 441
Fed.Appx. 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”: “[A
plaintiff] must claim that [the defendant] aimed to achieve
a collateral purpose beyond or in addition to his criminal
prosecution.” Savino, 331 F.3d at 77.
[54] The City Defendants argue that Plaintiff's abuse of
process claim should be dismissed because the claim accrued
at the time of Plaintiff's arrest, and therefore the three-year
statute of limitations expired sometime around March 2011.
(Dkt. 59 at 21.) The Court, however, finds that because
Plaintiff could not have discovered one of the two collateral
objectives she alleges until her prosecution was dismissed on
January 12, 2013, her complaint in this action was timely
filed.
[55] A claim for abuse of process accrues “at such a time
as the criminal process is set in motion—typically at arrest—
against the plaintiff. However, accrual cannot be appropriate
before such time as plaintiff is aware, or ought to be aware,
of those facts providing a basis for his claim.” Duamutef v.
Morris, 956 F.Supp. 1112, 1118 (S.D.N.Y. 1997) (Sotomayor,
J.) (citing Rose v. Bartle, 871 F.2d 331, 350 (3d Cir. 1989)
and Singleton, 632 F.2d at 192); see also Hadid v. City of New
York, No. 15-cv-19, 2015 WL 7734098, at *5 (E.D.N.Y. Nov.
30, 2015) (citing Duamutef, 956 F.Supp. at 1118). Unlike the
plaintiffs in other cases, Plaintiff in this case does not even
allege in the Complaint when she learned of her abuse of
process claim. See, e.g., Duamutef, 956 F.Supp. at 1118–19
(finding that plaintiff's abuse of process claim was not time-
barred because “[a]ccording to the allegations in [plaintiff's]
Complaint, plaintiff was unaware that he was being retaliated
against until September 28, 1995, when he received an
affidavit detailing defendants' intention to stifle his *617
political activities through a criminal prosecution”); Lukowski
v. Cnty. of Seneca, No. 08-cv-6098, 2009 WL 467075, *8
(W.D.N.Y. Feb. 24, 2009) (“The Complaint alleges that
plaintiffs learned of the allegedly illegal conduct of the
defendants in ‘late March 2007, ... after being contacted by
Ontario County District Attorney Michael Tantillo[.]’ ”)
Here, Plaintiff alleges that Defendants had two collateral
objectives for prosecuting her: (1) using her as a “bargaining
chip” to get her husband to plead guilty; and (2) covering
up their illegal arrest of her. (See Am. Compl. ¶ 215). While
these two objectives are sufficient to state an abuse of process
claim 33 , the “cover-up” objective does not provide a basis
for finding this claim timely. As the Court has already found
in connection with Plaintiff's false arrest claim, Plaintiff
believed from the time of her arrest that her arrest was illegal,
and thus Plaintiff was aware of or should have been aware
of the facts providing a basis for her claim, Duamutef, 956
F.Supp. at 1118, that at least one purpose of her prosecution
was to cover up this illegal arrest. Were Plaintiff's abuse of
process claim based solely on this objective, that claim would
have accrued, as the City Defendants maintain, on the date of
her arrest, and therefore would be time-barred.
However, Plaintiff also alleges that another purpose of her
prosecution was to use her as leverage to get her husband
to plead guilty. As to that collateral objective, the Court
finds that Plaintiff was not reasonably aware of that possible
objective until the dismissal of her case, without any effort
to pursue her prosecution during the four years of her pretrial
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incarceration and only after her husband was convicted. It was
only when Plaintiff's case was dismissed, without prosecution
and following her husband's conviction, did the objective
of using Plaintiff as a “bargaining chip” become clear. 34
Accordingly, the Court finds that Plaintiff's abuse of process
claim did not accrue until the date on which her case was
dismissed, January 2, 2013, and thus her abuse of process is
not time-barred. 35
[56] The Court briefly addresses the City Defendants' two
other grounds for *618 dismissing Plaintiff's abuse of
process claim. First, they contend that neither police officers
nor medical examiners, such as Dr. Landi, have the authority
to offer and/or to induce defendants to accept plea deals
and that, therefore, Plaintiff's abuse of process claim against
them fails “as a matter of practicality.” (Dkt. 59 at 20.)
However, the City Defendants do not cite any legal authority
for this contention, and it is unclear to the Court why the
police officers and medical examiners would not be liable
if they worked with the prosecutors to pursue Plaintiff's
prosecution for the purposes of getting Plaintiff's husband
to plead guilty or covering up an unlawful arrest. Second,
the City Defendants argue that, although “there is a split in
the Second Circuit as to whether probable cause is a defense
against abuse of process claims”, the Court should follow the
line of cases finding probable cause to be a complete defense
to this claim. (Dkt. 59 at 21 n.17.) The Court declines that
invitation, and instead adheres to the view that “[t]he Second
Circuit has long recognized that probable cause is not a
complete defense to malicious abuse of process.” Goldring v.
Zumo, No. 14–Civ–4861, 2015 WL 148451, at *5 (E.D.N.Y.
Jan. 12, 2015). In any event, as the Court has already found,
in connection with Plaintiff's malicious prosecution claim,
the Amended Complaint contains sufficient allegations from
which the absence of probable cause to prosecute Plaintiff can
be reasonably inferred.
[57] [58] While the Court finds that Plaintiff has
sufficiently and timely pled an abuse of process claim,
she has not adequately alleged that claim as to all City
Defendants. Plaintiff, again, indiscriminately group pleads
her abuse of process claim against all Defendants. (See
Am. Compl. ¶¶ 215–217.) As with Plaintiff's malicious
prosecution claim, however, her abuse of process claim is
only properly pled as to Det. Degnan and Dr. Landi. These are
the only City Defendants as to whom Plaintiff has adequately
pled involvement in the use of legal process, i.e., arresting
and detaining Plaintiff on the basis of allegedly false or
incomplete evidence, and thus these are the only Defendants
as to whom the pursuit of one or both of the alleged collateral
objectives could be plausibly inferred. Although the court
in TADCO Const. Corp. suggested that individuals who
“improperly contributed” to the plaintiff's arrest could be held
liable for malicious abuse of process, there, the defendants
were alleged to have directly contributed to the plaintiff's
arrest. Here, while Dets. Moser, Phelan, and Heffernan are
alleged to have participated in the investigation of Plaintiff's
case, there is nothing in the Amended Complaint from which
to infer that they participated in the actual legal process that
was used against Plaintiff, i.e., her arrest and detention. 36
Accordingly, Defendants' motion to dismiss Plaintiff's abuse
of process claim is denied as to Det. Degnan and Dr. Landi,
and granted as to all other City Defendants.
VII. FAILURE TO INTERVENE
[59] The Amended Complaint asserts, as part of Plaintiff's
Section 1983 claim, that all Defendants failed to intervene
to prevent other Defendants from violating her constitutional
rights not to be subjected to false arrest, malicious
prosecution, and abuse of process. Both groups of Defendants
argue for dismissal of this claim on the grounds that
Plaintiff's claim is based on conclusory allegations. The Court
agrees. Moreover, the Court independently *619 finds these
allegations irreconcilable with Plaintiff's theory of direct
participation by each Defendant.
[60] [61] “It is widely recognized that 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.” Terebesi v.
Torreso, 764 F.3d 217, 243 (2d Cir. 2014) (quoting Anderson
v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). “An officer
who fails to intercede is liable for the preventable harm
caused by the actions of the other officers where that officer
observes or has reason to know: (1) that excessive force
is being used; (2) that a citizen has been unjustifiably
arrested; or (3) that any constitutional violation has been
committed by a law enforcement official.” Anderson, 17
F.3d at 557 (citations omitted). To establish a claim for
failure to intervene, a plaintiff must show (1) the officer's
failure “permitted fellow officers to violate [plaintiff's] clearly
established statutory or constitutional rights,” and (2) it was
“objectively unreasonable for him to believe that his fellow
officers' conduct did not violate those rights.” Ricciuti v.
N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997)
(citation and quotation marks omitted). Additionally, Plaintiff
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must show that the officer had “a realistic opportunity to
intervene to prevent the harm from occurring” but failed to do
so. See Cerbelli v. City of New York, No. 99-CV-6846, 2008
WL 4449634, at *11 (E.D.N.Y. Oct. 1, 2008) (citation and
quotation marks omitted).
Plaintiff's failure to intervene claim is dismissed as to all
Defendants for two reasons. 37 First, Plaintiff's allegations are
merely conclusory. 38 Second, Plaintiff resorts to conclusory
generalized allegations asserting her failure to intervene claim
against every single Defendant and refers to the numerous
defendants collectively. Such conclusory and generalized
allegations do not give any of the Defendants “fair notice
of what [Plaintiff's] claim is and the grounds upon which
it rests.” Jackson v. Onondaga Cnty., 549 F.Supp.2d 204,
212 (N.D.N.Y. 2008) (quotation marks omitted); see *620
Bouche v. City of Mount Vernon, No. 11–Civ–5246, 2012
WL 987592, at *7 (S.D.N.Y. Mar. 23, 2012) (dismissing
the plaintiff's failure to intervene claim because the plaintiff
“only refer[red] to the defendants in the collective, never
identifying which defendants were responsible for specific
actions”); see also Clay v. Cnty. of Clinton, No. 8:10-
cv-00239, 2012 WL 4485952, at *14 (N.D.N.Y. Sep. 27,
2012) (granting motion for judgment on the pleadings as
to plaintiff's failure to intervene claim because the plaintiff
“fail[ed] to distinguish which ... Defendant was responsible
for actually violating Plaintiff's constitutional rights and
which, if any, Defendant failed to intervene to prevent such
violations from occurring”). As the district court explained
in Hardy v. City of New York, No. 12–Civ–17, 2013 WL
5231459, at *4 (S.D.N.Y. Jul. 9, 2013), “restatement of the
legal standard ... does not sufficiently allege constitutional
violations in which the [defendants] might have intervened.
Where were the [defendants] in relation to Plaintiff and in
relation to each other? What impermissible actions did they
take? Which officers observed those actions? Plaintiff does
not say. Accordingly, he fails to nudge his failure to intervene
claim from possible to plausible.”
Such a generalized pleading, which fails to differentiate
between the Defendants, is especially problematic where, as
here, Plaintiff is also alleging that Defendants are all liable
under a theory of direct participation. 39 See Chepilko v. City
of New York, No. 06-CV-5491, 2012 WL 398700, at *8 n.5
(E.D.N.Y. Feb. 6, 2012) (finding that if a defendant “may
be liable under a theory of direct participation, there is no
claim against [that defendant] for failure to intervene”); see
also Buchy v. City of White Plains, No. 14-CV-1806, 2015
WL 8207492, *3 (S.D.N.Y. Dec. 7, 2015) (same) (citation
omitted). Plaintiff's failure to specify which Defendants
participated directly in the unlawful conduct, as opposed to
failed to intervene in it, is fatal to her claim, even at this stage.
Accordingly, Defendants' motion to dismiss with regard to
Plaintiff's failure to intervene claim is granted as to all
Defendants. 40
VIII. CONSPIRACY
[62] [63] [64] Plaintiff asserts a Section 1983 conspiracy
claim against all Defendants. (Am. Compl. ¶¶ 221–223.)
“[T]o survive a motion to dismiss on [a plaintiff's] § 1983
conspiracy claim, [the 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. Cnty. of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002).
“[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.” Id.
(quoting *621 Dwares v. City of New York, 985 F.2d 94,
100 (2d Cir. 1993)). To state a Section 1983 conspiracy claim
against a private entity, “the complaint must allege facts
demonstrating that the private entity acted in concert with the
state actor to commit an unconstitutional act.” 41 Id. at 324
(quoting Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d
Cir. 1992)). For the reasons stated below, the Court finds that
Plaintiff has sufficiently pled a claim of conspiracy against
specific City Defendants and the Medical Center Defendants.
[65] While Plaintiff's pleading of her conspiracy claim
is hardly robust, drawing all reasonable inferences in her
favor, the Court finds that Plaintiff has adequately pled this
claim as to Dets. Degnan, Moser, Heffernan, and Phelan,
Dr. Landi, and Dr. Kupferman. The Complaint provides
factual allegations that these Defendants acted jointly. For
example, Plaintiff alleges that Det. Degnan was present at
the autopsy of Annie that Dr. Landi performed (Am. Compl.
¶ 129) and that “Defendant Degnan and Heffernan engaged
in lengthy communications with FHMC staff, including
Defendant Kupferman” (Am. Compl. ¶ 108). Plaintiff also
alleged that Dr. Kupferman joined Dets. Heffernan and Moser
in screaming at her during an investigation (Am. Compl.
¶ 115) and that Dr. Landi “made her determination largely
based on the evidence presented to her by” Dr. Kupferman
and other City Defendants (Am. Compl. ¶ 152). Moreover,
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Plaintiff alleges that Det. Phelan and Det. Degnan together
interrogated the Lis, and participated in the early stages of
investigating Plaintiff's criminal case. (See, e.g., Am. Compl.
¶¶ 102–104, 106, 110.)
Pointing to Plaintiff's allegations in paragraphs 157 and
158 that Dr. Kupferman acted “as a deputy of the
NYPD and the Queens County D.A.'s office,” the Medical
Center Defendants argue that they are “legally incapable
of conspiring” with the City Defendants under the intra-
corporate conspiracy doctrine. (See Dkt. 55 at 11–12.)
Plaintiff responds that she has adequately pled facts to support
this claim 42 and that “[j]ust because one is alleged to be
[sic] State Actor, does not make them members of the NYPD,
or break intro-corporate [sic] conspiracy.” (See Dkt. 66 at
16–17.) In their reply, the Medical Center Defendants clarify
that Plaintiff's counsel misconstrues the argument: “[T]he
doctrine applies [not simply because Plaintiff alleged that Dr.
Kupferman was a state actor but] because plaintiff alleged that
Kupferman ‘acted as a deputy of the NYPD and the Queen
County D.A.'s office[.]’ ” (Dkt. 56 at ECF 15.)
[66] Under the intra-corporate conspiracy doctrine, “there
is no conspiracy if the conspiratorial conduct challenged
is essentially a single act by a single corporation
acting exclusively through its own directors, officers, and
employees, each acting within the scope of his employment.”
Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978) (citation
omitted). While the Court must accept the factual allegations
*622 set forth in the complaint as true, it must also draw
all reasonable inferences in favor of the plaintiff. See Nielsen,
746 F.3d at 62. Here, the Court infers from paragraphs 157 and
158 that Plaintiff is alleging—albeit in exaggerated language
—that Dr. Kupferman acted in concert with or “acted as a part
of the team” that is the NYPD and the Queens County D.A.'s
Office, not that Dr. Kupferman was an actual “employee” of
the NYPD or District Attorney's Office. Indeed, any inference
that Dr. Kupferman actually worked for those offices is belied
by the Amended Complaint's allegations that Dr. Kupferman
worked for FMHC. (Am. Compl. ¶ 108.) In Herrmann, the
case on which the Medical Center Defendants rely, there
was no question that all defendants accused of conspiracy
belonged to a single corporation. See 576 F.2d 453, 459
(“Every one of the defendants ... was either a trustee or faculty
member of the Brooklyn Law School[.]”) Therefore, at this
stage of the proceedings, the Court does not find it appropriate
to dismiss Plaintiff's conspiracy claim against Dr. Kupferman
based on the intra-corporate conspiracy doctrine.
* * *
Accordingly, the City Defendants' motion to dismiss
Plaintiff's conspiracy claim is denied as to Dets. Degnan,
Moser, Heffernan, and Phelan, and Dr. Landi, but granted as
to all other City Defendants; the Medical Center Defendants'
motion to dismiss Plaintiff's Section 1983 conspiracy claim
is denied. 43
IX. UNREASONABLY PROLONGED DETENTION
Plaintiff also asserts a Section 1983 claim for unreasonably
prolonged detention in violation of her Fourth Amendment
rights. (Am. Compl. ¶¶ 225–229.) Specifically, Plaintiff
alleges that Defendants' mishandling, concealing, and
suppressing of exculpatory evidence, and their intimidation
and coercion of witnesses, caused her unreasonably
prolonged detention. (Id. (citing Russo v. City of Bridgeport,
479 F.3d 196 (2d Cir. 2007).).)
[67] [68] 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. Russo, 479 F.3d at 208–09. To state such a claim,
Plaintiff must allege that (1) she has a right to be free
from continued detention stemming from law enforcement
officials' mishandling or suppression of exculpatory evidence,
(2) the actions of the officers violated that right, and (3) the
officers' conduct “shocks the conscience.” Russo, 479 F.3d at
205 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 118
S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). In Russo, the Second
Circuit considered the following three factors in determining
whether the plaintiff's detention was excessive in violation of
the Fourth Amendment: (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. Id. at
209.
Applying these standards, the Court finds that Plaintiff
has adequately alleged an unreasonably prolonged detention
claim against some of the City Defendants, but *623 not
against the Medical Center Defendants.
A. The City Defendants
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[69] The City Defendants argue that this claim should be
dismissed because (1) Plaintiff only recites the elements
of the cause of action, and (2) Plaintiff cannot allege the
third element, i.e., that the alleged conduct “shocks the
conscience”, because the exculpatory evidence at issue is not
equivalent to the exculpatory evidence in Russo.
First, the Court disagrees with the City Defendants' contention
that Plaintiff only recites the elements of unreasonably
prolonged detention and nothing more. In the Amended
Complaint, Plaintiff alleges that she was held at Riker's Island
Jail for about four years (Am. Compl. ¶¶ 180, 234), and that
Defendants “disregarded plainly exculpatory evidence” (Am.
Compl. ¶ 173), “failed to ... disclose evidence inconsistent
with plaintiff's guilt” (Am. Compl. ¶ 182), and mishandled
and suppressed “exculpatory ... evidence” (Am. Compl.
¶ 225). Had Plaintiff only alleged this, her claim would
have been conclusory. However, Plaintiff provides specifics
regarding these broad allegations. For example, she alleges
that Defendants mishandled evidence that “Annie's injuries
could have been caused by osteogenesis imperfecta or other
natural causes” (Am. Compl. ¶ 137), and that Dr. Landi's
statement was “entirely ... unsupportable by any medical
science” (see Am. Compl. ¶ 150). She also alleges that Dr.
Landi withheld exculpatory evidence (Am. Compl. ¶ 154),
falsely “swore under oath in the criminal complaint” that the
Lis could have prevented Annie's death by getting her prompt
medical attention the night she died (Am. Compl. ¶ 150), and
“ignored signs of rib anterior flaring, and [the need for] any
kind of thorough eye [sic] exam for eyes, or bones.” (Am.
Compl. ¶ 152.) To the extent that Dets. Degnan, Moser,
Phelan, and Heffernan took an active role in investigating
the Lis, the Court can infer that any exculpatory evidence
concealed by Dr. Landi was also known by these Officer
Defendants. From these allegations, the Court can plausibly
infer that these City Defendants failed to disclose medical
evidence that would have contradicted Dr. Landi's diagnosis
and thus suppressed evidence that would have exculpated
Plaintiff sooner.
[70] Second, the Court disagrees with the City Defendants'
contention that the exculpatory evidence in this case—i.e.,
that Annie could not have been saved even if medical care
was sought out sooner or that she died due to a condition
other than SBS—is not equivalent to the definitive and
conclusive exculpatory evidence contemplated by the Second
Circuit in Russo. (Dkt. 59 at 25.) The failure to obtain or
disclose evidence that is only arguably exculpatory does not
shock the conscience. See, e.g., Wilson v. City of New York,
480 Fed.Appx. 592, 595 (2d Cir. 2012) (summary order)
(distinguishing Russo because the evidence in Wilson was
conflicting and some of the testimonial evidence at issue
identified the defendant as an accomplice to the charged
crime). In Russo, the exculpatory evidence at issue was a
video surveillance tape that showed the perpetrator of the
robbery in question without tattoos on his arms; Russo, who
was arrested for the robbery, had distinctive tattoos covering
his arms and repeatedly alerted the defendant-officers that
the surveillance video would establish his innocence. Id. at
200. Here, the exculpatory evidence that Plaintiff alleges
was concealed is the absence of any medical support for the
charge that she caused Annie's death by SBS. (Id. ¶¶ 150, 135
(asserting that charge of SBS was “entirely ... unsupportable
by any medical science,” that the “there was no evidence,
and no reasonable basis to believe, that plaintiff had any time
*624 engaged in any conduct which could have caused or
contributed to Annie's injuries and death,” and that “there
was no clinical or diagnostic medical evidence to support
a finding of SBS [based on Annie's condition].” (emphasis
added)).) Although the Amended Complaint is not a model
of clarity, the Court infers that Plaintiff's unreasonably
prolonged detention claim is based on the allegation that
the City Defendants knew from conversations with, or
information provided by, the Medical Center Defendants that
there was no medical support for the conclusion that Annie
died from SBS or that earlier medical intervention could
have prevented her death—conclusions that were central
to the case against Plaintiff—and that the City Defendants
concealed this information for over four years while Plaintiff
remained in prison. At this stage of the litigation, the Court
takes these allegations as true—i.e., that there was definitive
and conclusive exculpatory evidence—and finds that Plaintiff
has adequately pled the third element of her unreasonably
prolonged detention claim. 44
Accordingly, the City Defendants' motion to dismiss
Plaintiff's unreasonably prolonged detention claim is denied
as to Dets. Degnan, Moser, Phelan, and Heffernan, and Dr.
Landi, but granted as to all other City Defendants.
B. The Medical Center Defendants
The Medical Center Defendants contend that Plaintiff cannot
state a claim for unreasonably prolonged detention against Dr.
Kupferman because that claim can only be brought against
law enforcement officers. (Dkt. 55 at 12.) Plaintiff, citing no
legal authority, argues that the Second Circuit's holding in
Russo should be extended to non-law-enforcement officials.
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(Dkt. 66 at 19.) Plaintiff also argues that as long as the
defendant acted under color of state law, that defendant
is subject to an unreasonably prolonged detention claim
recognized by the court in Russo. The Court disagrees
with Plaintiff's overly expansive and unsupported reading of
Russo.
In Russo, the Second Circuit specifically stated that a
plaintiff has a right to be free from prolonged detention
“stemming from law enforcement officials' mishandling or
suppression of exculpatory evidence....” See Russo, 479 F.3d
at 205 (emphasis added). Indeed, all three prongs of the
test for determining whether an unreasonably prolonged
detention has occurred expressly references conduct by a
law enforcement officer. See id. There is nothing in Russo
or any case applying Russo that suggests that non-State
individuals or entities can be held liable for unreasonably
prolonged detention. See, e.g., Jackson v. City of New
York, 29 F.Supp.3d 161, 178 (E.D.N.Y. 2014) (“Russo
has been narrowly construed to involve situations where
a law enforcement official has mishandled or suppressed
readily available exculpatory evidence....”); Harewood v.
Braithwaite, 64 F.Supp.3d 384, 401–03 (E.D.N.Y. 2014);
Thompson v. City of New York, 603 F.Supp.2d 650, 656
(S.D.N.Y. 2009); Wilson v. City of New York, 480 Fed.Appx.
592, 594–95 (2d Cir. 2012) (summary order); Nelson v.
Hernandez, 524 F.Supp.2d 212, 224–25 (E.D.N.Y. 2007). Nor
does Plaintiff cite any such case law.
*625 Accordingly, the Medical Center Defendants' motion
to dismiss Plaintiff's unreasonably prolonged detention claim
as to them is granted in its entirety.
X. DUE PROCESS
[71] Under the Due Process Clause of the Fourteenth
Amendment, no State shall “deprive any person of life,
liberty, or property without due process of law.” U.S. Const.
amend. XIV, § 1. This prohibition applies to municipalities.
See Horvath v. Westport Library Ass'n, 362 F.3d 147, 151
(2d Cir. 2004) (stating that the Fourteenth Amendment due
process right applies only to government entities whose action
may be fairly attributed to the State).
[72] [73] [74] [75] The Due Process Clause was
“intended to secure the individual from the arbitrary exercise
of the powers of government.” Daniels v. Williams, 474 U.S.
327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (quoting
Hurtado v. California, 110 U.S. 516, 527, 4 S.Ct. 292,
28 L.Ed. 232 (1884)). Procedural due process requires that
government action depriving an individual of substantial
interest in life, liberty, or property “be implemented in
a fair manner.” United States v. Salerno, 481 U.S. 739,
746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Substantive
due process, as recognized by the Supreme Court, bars
“certain government actions regardless of the fairness of
the procedures used to implement them,” in order to
“prevent governmental power from being used for purposes
of oppression.” Daniels, 474 U.S. at 331, 106 S.Ct. 662
(citation and quotations marks omitted); McClary v. O'Hare,
786 F.2d 83, 88 (2d Cir. 1986). “In other words, while a
procedural due process claim challenges the procedure by
which [deprivation of liberty] is effected, a substantive due
process claim challenges the ‘fact of the [deprivation’] itself.”
See Southerland v. City of New York, 680 F.3d 127, 142 (2d
Cir. 2012) (alteration in original omitted) (differentiating a
procedural due process claim from a substantive due process
claim); see also Kerry v. Din, ––– U.S. ––––, 135 S.Ct.
2128, 192 L.Ed.2d 183 (2015) (“[T]here are two categories
of implied rights protected by the Due Process Clause: really
fundamental rights, which cannot be taken away at all absent
a compelling state interest; and not-so-fundamental rights,
which can be taken away so long as procedural due process
is observed.”).
The Court interprets Plaintiff's due process claim, set forth in
her seventh cause of action, to be based on the alleged (1)
concealment of exculpatory evidence, i.e., a Brady violation
(Am. Compl. ¶¶ 232–233), (2) fabrication of evidence (id.),
(3) failure to investigate (Am. Compl. ¶ 235), (4) violation
of the right to a speedy trial (Am. Compl. ¶ 234), and (5)
violation of the right to be treated with dignity during her
pretrial detention (¶ 236). While Plaintiff does not clearly
articulate which due process claims are procedural and which
are substantive, the Court interprets the first two claims,
regarding the mishandling of evidence, to be procedural 45 ,
and the others to be substantive.
*626 A. Procedural Due Process
[76] [77] A procedural due process violation occurs when
the government deprives a person of a protected life, liberty,
or property interest without first providing notice and an
opportunity to be heard. See B.D. v. DeBuono, 130 F.Supp.2d
401, 432–33 (S.D.N.Y. 2000). “To determine whether a
Section 1983 due process claim is plausibly alleged, the Court
evaluates the sufficiency of the allegations with respect to
the liberty or property interest alleged and the process due
before deprivation of that interest.” Norton v. Town of Islip, 97
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F.Supp.3d 241, 266 (E.D.N.Y. 2015); see also Ciambriello,
292 F.3d at 313.
[78] [79] [80] Here, Plaintiff has asserted Section 1983
due process claims that are often referred to as fair trial
claims. “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 Fed.Appx. 115,
118 (2d Cir. 2016) (citing Ramchair v. Conway, 601 F.3d
66, 73 (2d Cir. 2010)). A defendant's right to a fair trial is
violated when exculpatory evidence is withheld, i.e., when
a Brady violation occurs (see Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)), and also when an
officer forwards fabricated evidence to prosecutors, Ricciuti,
124 F.3d at 130. “A plaintiff need not have gone to a full
trial on the merits in order to have an actionable Section 1983
claim based on the denial of a fair trial.” Marom v. City of New
York, No. 15-CV-2017, 2016 WL 916424, at *9 (S.D.N.Y.
Mar. 7, 2016); see Ricciuti, 124 F.3d at 127 (plaintiffs who
brought a Section 1983 claim for right to a fair trial had their
criminal charges dismissed pretrial).
The Court finds that Plaintiff has adequately alleged fair trial
claims against Dets. Degnan, Moser, Phelan, and Heffernan,
Dr. Landi, and the Medical Center Defendants.
1. Brady violation claim
[81] [82] The Supreme Court held that a prosecutor
violates a criminal defendant's due process right when
the prosecutor fails to disclose favorable material to the
defendant, “irrespective of the good faith or bad faith of
the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194; see
also Poventud v. City of New York, 750 F.3d 121, 155 (2d
Cir. 2014) (“[T]he constitutional right defined by Brady ...
is the criminal defendant's procedural due process right to
the disclosure of ‘evidence that is material to his guilt or
punishment.’ ”) (quoting Cone v. Bell, 556 U.S. 449, 469, 129
S.Ct. 1769, 173 L.Ed.2d 701 (2009)). Police officers also “can
be held liable for Brady due process violations under § 1983
if they withhold exculpatory evidence from prosecutors.”
Bermudez v. City of New York, 790 F.3d 368, 376 n.4 (2d Cir.
2015). *627 Once a police officer turns over exculpatory
evidence to the prosecutor, that officer satisfies his obligations
under Brady. Walker v. City of New York, 974 F.2d 293, 299
(2d Cir. 1992) (“It is appropriate that the prosecutors, who
possess the requisite legal acumen, be charged with the task of
determining which evidence constitutes Brady material that
must be disclosed to the defense.”); see also Blake v. Race,
487 F.Supp.2d 187, 215–16 (E.D.N.Y. 2007) (noting that the
Second Circuit had extended the Brady obligations to police
officers in that they are required to turn exculpatory evidence
over to the prosecutors).
[83] [84] “A classic Brady violation contains 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 v. City of New York, 640
Fed.Appx. 115, 118 (2d Cir. 2016) (summary order) (quoting
United States v. Rivas, 377 F.3d 195, 199 (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 (quoting Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir.
2001)).
[85] Here, Plaintiff has sufficiently pled her Brady violation
claim against Dets. Degnan, Moser, Phelan, and Heffernan,
Dr. Landi, and Dr. Kupferman. 46 The Amended Complaint
states that “the Officer Defendants failed to ... disclose
evidence inconsistent with plaintiff's guilt, did not document
or inform the district attorney's office of exculpatory
evidence, [and] falsely reported facts in reports and
search warrant affidavits.” (Am. Compl. ¶ 178 (emphasis
added).) Plaintiff also alleges that Defendants “maliciously
concealed material exculpatory evidence” (Am. Compl. ¶
233 (emphasis added)), and that prejudice ensued because
it resulted in her arrest (Am. Compl. ¶ 238). In addition, as
previously discussed, the Amended Complaint describes the
nature of this exculpatory evidence as relating to the false
conclusions of Dr. Landi and/or Dr. Kupferman regarding the
causes of Annie's death, which implicated Plaintiff and her
husband in their daughter's death. (Id. ¶¶ 150, 152, 164.)
2. Fabrication of Evidence claim
[86] Separate from her malicious prosecution claim, Plaintiff
alleges a procedural due process violation based on
Defendants' alleged fabrication of evidence. (See Am. Compl.
¶ 233.) 47 The claim of denial of the right to a fair trial
due to fabricated evidence stems from the Sixth Amendment
and the Due Process clauses of the Fifth, Sixth, Fourteenth
Amendments of the U.S. Constitution. See Holbrook v. Flynn,
475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986); Zahrey
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v. City of New York, No. 98-4546, 2009 WL 1024261, at *16
(S.D.N.Y. Apr. 15, 2009) (characterizing plaintiff's right to
a fair trial claim as an action for violation of his right to
procedural *628 due process rooted in the Fifth, Sixth, and
Fourteenth Amendments). Fabrication of evidence constitutes
a violation of this right to a fair trial. Coffey, 221 F.3d at
344 (“[T]here 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, at
least where the officer foresees that he himself will use the
evidence with a resulting deprivation of liberty.”); Brandon
v. City of New York, 705 F.Supp.2d 261, 276 (S.D.N.Y. 2010)
(noting that the Second Circuit has permitted “claims for
both malicious prosecution and a denial of his right to trial
based on the same alleged fabrication of evidence”) (citing
Ricciuti, 124 F.3d at 130–31); see also Zahrey, 2009 WL
1024261, at *8 n.14 (S.D.N.Y. Apr. 15, 2009) (“Because
evidence fabrication serves to both improperly charge and/
or arrest a plaintiff as well as unfairly try him, the Coffey
violation, in its essence, involves aspects of both the Fourth
Amendment and procedural due process.”); Myers v. Cnty.
of Nassau, 825 F.Supp.2d 359, 367 (E.D.N.Y. 2011) (noting
that when a police officer turned over fabricated evidence to
the prosecutor, such conduct can be redressed, not as a Brady
violation, but as a deprivation of liberty on the basis of false
and fabricated evidence).
[87] To state a claim of fabrication of evidence, a plaintiff
must allege that “an (1) investigating official (2) fabricat[ed]
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, 280 (2d
Cir. 2016).
a) The City Defendants
[88] The City Defendants assert that Plaintiff's fabrication of
evidence claims should be dismissed for three reasons: (1)
none of the City Defendants could have possibly fabricated
the SBS medical evidence, and the Complaint does not
credibly allege that Dr. Landi “fabricated” evidence of SBS;
(2) ADA Bishop is absolutely immune from the claims; and
(3) the claims are time-barred, because Plaintiff was always
aware of her theory that Annie died from a genetic disorder
and not from any action taken by Plaintiff or her husband.
(Dkt. 59 at 27–28.) Plaintiff provides a somewhat haphazard
analysis in response and argues, “[Det.] Degnan states ‘that
he was informed by Dr. Landi that earlier medical attention
for the complainant could have resulted in the complainant's
survival, and that the lack of immediate medical attention
contributed to the complainant's death’ .... Whether such
a statement was fabricated is discoverable.” (Dkt. 61 at
25 (citing Plaintiff's Exhibit B, Criminal Court Complaint
in People v. Ying Li )). Notwithstanding Plaintiff's cursory
response to the City Defendants' arguments, the Court
finds that Plaintiff has adequately alleged a plausible claim
of fabrication of evidence against Dets. Degnan, Moser,
Heffernan, and Phelan, and Dr. Landi.
Although Plaintiff fails to identify the relevant paragraphs
of the Amended Complaint, except for Paragraph 233, the
Amended Complaint does contain allegations of fact that
support her fabrication of evidence claim with regard to
these City Defendants. (See Am. Compl. ¶¶ 145, 146, 150,
160, 178.) Specifically, Plaintiff alleges that Det. Degnan
signed the criminal court complaint in spite of his knowing
that its content was not true (Am. Compl. ¶ 145), that
Plaintiff was arraigned based on the fabricated information
Defendants forwarded to the District Attorney's Office (Am.
Compl. ¶ 146), and that Defendants “falsely reported facts
in reports and search warrant affidavits, and fabricated oral
statements of witnesses.” (Am. Compl. *629 ¶ 178.) 48
Plaintiff also alleges that Dr. Landi swore under oath in the
criminal complaint that had Annie received medical care
sooner, she could have survived—a fact that was, according
to the Complaint, “false, misleading, and perjurious, and
entirely unsupported ... by any medical science....” (Am.
Compl. ¶ 150.) At this stage of the litigation, the Court
takes these allegations as true—i.e., that the content of the
criminal complaint, reports, and search warrant affidavits
contained false information that certain City Defendants
knowingly provided and/or swore to—and finds that Plaintiff
has adequately pled her fabrication of evidence claim against
Dets. Degnan, Moser, Heffernan, and Phelan, and Dr. Landi.
b) The Medical Center Defendants
[89] As previously discussed (see supra Sections X.A.1),
Plaintiff has alleged that Dr. Kupferman ignored evidence
suggesting that Annie's death was not caused by SBS and
provided false information to Dr. Landi, who based her
conclusions on that false information.
Although the Medical Center Defendants argue that “the
[Amended] Complaint does not contain an allegation
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regarding violation of plaintiff's right to a fair trial” (see Dkt.
56 at 10), the Court disagrees, given the numerous allegations
of fabrication of evidence and Dr. Kupferman's alleged failure
to consider Annie's lab results that were consistent with
metabolic bone disease. (See Am. Compl. ¶¶ 122, 145, 146,
150, 178, 232, 233.) Even though, as the Medical Center
Defendants point out, the Amended Complaint does not
specifically mention the Fifth Amendment, the Court finds
that the factual allegations in the complaint have given the
Medical Center Defendants sufficient notice of this claim. 49
3. Statute of Limitations With Respect to Fair Trial Claims
Having found that Plaintiff adequately pled both her Brady
violation and fabrication of evidence claim against the City
Defendants and the Medical Center Defendants, the Court
turns to those Defendants' argument that these claims are
time-barred (see Dkt. 59 at 28). The City Defendants contend
that Plaintiff's fair trial claim accrued at the time of her
arrest because “she was always aware of her theory that
her baby died from a genetic disorder and not any action
taken by plaintiff or her husband.” (Id.) In response to this
argument, Plaintiff simply states, without citing any legal
authority, that her procedural due process claim is not time
barred because “Federal equitable tolling standards should
apply.” (Dkt. 61 at 25.) Plaintiff makes no other argument.
Notwithstanding Plaintiff's inadequate response, the Court
finds the City Defendants' argument unpersuasive.
[90] [91] Fabrication of evidence claims accrue “when the
plaintiff learns that evidence was fabricated and an injury
was *630 caused by the fabrication.” Carr v. City of New
York, No. 11–Civ–6982, 2013 WL 1732343, at *6 (S.D.N.Y.
Apr. 19, 2013) (“[P]laintiff arguably learned of the alleged
fabrication as soon as the criminal complaint was filed and
certainly no later than when [the defendant] took the stand at
[ ] trial....”); see also Garnett v. Undercover Officer C0039,
No. 13-cv-7083, 2015 WL 1539044, at *4 (S.D.N.Y. Apr. 6,
2015) (“[A fabrication of evidence] claim accrues when the
officer forwards the false information to the prosecutors.”).
Because the statute of limitations is an affirmative defense,
“[t]he burden is on the defendant to establish when a federal
claim accrues.” Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir.
2011).
[92] Here, the Court finds that the City Defendants have
not established that Plaintiff knew all along that she had
Brady violation and fabrication of evidence claims simply
because she believed in her innocence; the City Defendants'
contrary assertion is too sweeping. At a January 2, 2013
status conference, Plaintiff learned that ADA Bishop moved
to dismiss the criminal charges against Plaintiff because Dr.
Kupferman informed ADA Bishop that Annie's brain injuries
were so severe that immediate medical intervention would
likely not have saved her. (See Dkt. 63 at Ex. F at ECF
6.) Therefore, it is plausible to infer that in January 2013
Plaintiff specifically learned that she might have a fabrication
of evidence claim against the City Defendants based on
Dr. Landi's earlier contrary assessment of how Plaintiff was
responsible for Annie's death, in part, because Plaintiff failed
to get medical attention for her daughter quickly enough. See
Mitchell v. Home, 377 F.Supp.2d 361, 373 (S.D.N.Y. 2005)
(“[A] fair trial claim premised on fabrication of evidence
accrues when the plaintiff learns or should have learned that
the evidence was fabricated and such conduct causes the
claimant some injury[.]”) (citing Veal v. Geraci, 23 F.3d 722,
724–25 (2d Cir. 1994)); see also Bailey v. City of New York,
79 F.Supp.3d 424, 444 (E.D.N.Y. 2015) (same). 50
As for Plaintiff's Brady violation claim, the Court cannot
assess when it was that the claim could have plausibly
accrued because Plaintiff does not specifically allege
what exculpatory evidence the City Defendants concealed.
However, because the City Defendants have the burden of
establishing that the statute of limitations has expired, and in
light of the cursory argument put forth by the City Defendants,
the Court denies the City Defendants' motion to dismiss
Plaintiff's fair trials claims on statute of limitations grounds
with respect to Dets. Degnan, Moser, Phelan, Heffernan, and
Dr. Landi. For the reasons previously discussed, the Medical
Center Defendants' motion to dismiss Plaintiff's fair trials
claims against them is also denied.
B. Substantive Due Process
[93] [94] [95] [96] “[D]ue process protection in the
substantive sense limits what the government may do in
both its legislative, and its executive capacities....” Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708,
140 L.Ed.2d 1043 (1998) (citing Griswold v. Connecticut,
381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and
*631 Rochin v. California, 342 U.S. 165, 72 S.Ct. 205,
96 L.Ed. 183 (1952)). “The protections of substantive due
process have for the most part been accorded to matters
relating to marriage, family, procreation, and the right to
bodily integrity.” Albright v. Oliver, 510 U.S. 266, 273, 114
S.Ct. 807, 127 L.Ed.2d 114 (1994). “[C]riteria to identify
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what is fatally arbitrary differ depending on whether it is
legislation or a specific act of a governmental officer that is at
issue.” Cnty. of Sacramento, 523 U.S. at 845, 118 S.Ct. 1708.
“[F]or executive action to violate substantive due process, it
must be so egregious, so outrageous, that it may fairly be said
to shock the contemporary conscience.” Bolmer v. Oliveira,
594 F.3d 134, 142 (2d Cir. 2010) (citation and quotations
marks omitted). “It is not enough that the government act
[was] ‘incorrect or ill-advised[.]’ ” Cox v. Warwick Valley
Cent. Sch. Dist., 654 F.3d 267, 275 (2d Cir. 2011) (quoting
Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir.
1995)). “Only the most egregious official conduct can be
said to be arbitrary in the constitutional sense and therefore
unconstitutional.” Id. (citation and quotation marks omitted).
1. Failure to Investigate
Against the Medical Center Defendants and Dr. Landi,
Plaintiff asserts a claim best characterized as a claim of
failure to investigate, in violation of Plaintiff's substantive due
process rights. (See Am. Compl. ¶ 235; see also Dkt. 66 at
20.) 51 More specifically, this claim is based on the argument
that the Medical Center Defendants and Dr. Landi failed to
“exhaust all possibilities” before rendering an SBS diagnosis,
and therefore violated Plaintiff's liberty. (See Dkt. 66 at 20–
21; Am. Compl. ¶ 238 (“Defendants' conduct precipitated and
caused the sequence of events that ultimately resulted in the
deprivation of plaintiff's liberty....”).)
Both groups of Defendants contend that all of Plaintiff's
substantive due process claims are solely based on Plaintiff's
Fourth Amendment claims of false arrest, malicious abuse of
process, and conspiracy, and thus are duplicative of her Fourth
Amendment claims and should be dismissed. (See Dkt. 55
at 14; Dkt. 56 at 10; Dkt. 59 at 26.) Plaintiff responds that
“the Fourth Amendment does not ‘cover a cause of action for
government abuse of process in the investigation or pursuit of
a suspect’, and that she therefore has a separate, standalone
substantive due process claim against certain Defendants for
failing to investigate other explanations for Annie's death
before concluding that she died from SBS. (Dkt. 66 at 20
(citing Russo v. City of Hartford, 184 F.Supp.2d 169, 184 (D.
Conn. 2002)).)
[97] [98] “The right [to be free from arbitrary government
action,] to the extent it exists, is the right to be free of
arbitrary *632 government action that infringes a protected
right.” O'Connor v. Pierson, 426 F.3d 187, 200 n. 6 (2d Cir.
2005). Here, Plaintiff does not provide adequate legal support
for her assertion of a substantive due process right to have
investigating officials “exhaust all possibilities” that could
have explained the cause of Annie's death before concluding
that it was SBS. (See Dkt. 66 at 20–21.) 52 Moreover, even
though Plaintiff attempts to distinguish her substantive due
process claim from her Fourth Amendment claims, Plaintiff's
failure to investigate claim, at the end of the day, is based
on her substantive due process right to be free of prosecution
and arrest without probable cause. 53 Cf. Campbell, 2000 WL
194815, at *3 (“allegations of an officer's failure to investigate
are considered under the rubric of false imprisonment, false
arrest, or malicious prosecution.”). This is evidenced by
Plaintiff's own brief and the Amended Complaint, which
both state that Defendants' failure to investigate “effectuated
Plaintiff's arrest.” 54 (Dkt. 66 at 22.)
*633 “As a general matter, [the U.S. Supreme Court] has
always been reluctant to expand the concept of substantive
due process because the guideposts for responsible
decisionmaking in this unchartered area are scarce and open-
ended.” Albright, 510 U.S. at 271–72, 114 S.Ct. 807 (citing
Collins v. Harker Heights, 503 U.S. 115, 112 S.Ct. 1061,
117 L.Ed.2d 261 (1992)). The Supreme Court has instructed
that “[w]here a particular Amendment ‘provides an explicit
textual source of constitutional protection’ against a particular
sort of government behavior, ‘that Amendment, not the more
generalized notion of substantive due process,’ must be the
guide for analyzing these claims.” Id. at 273, 114 S.Ct. 807
(quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct.
1865, 104 L.Ed.2d 443 (1989) and holding that substantive
due process cannot afford plaintiff relief when the plaintiff
“ask[ed] [the Supreme Court] to recognize a substantive right
under the Due Process Clause of the Fourteenth Amendment
to be free from criminal prosecution except upon probable
cause”). In light of this guidance and given the plain overlap
between Plaintiff's substantive due process claim alleging a
failure to investigate and her Fourth Amendment claims, the
Court finds that, to the extent Plaintiff has a viable failure
to investigate claim 55 , it falls under the Fourth Amendment
rubric. Here, Plaintiff's claim of failure to investigate, as a
practical matter, will be subsumed by all of her other Section
1983 claims.
Accordingly, both the City Defendants' and the Medical
Center Defendants' motions to dismiss Plaintiff's substantive
due process claim based on a failure to investigate are granted.
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2. Speedy Trial
[99] Plaintiff also alleges that she was denied a speedy trial,
in violation of her right under the speedy trial clause of
the Sixth Amendment. (See Am. Compl. ¶ 234.) The Sixth
Amendment guarantees that “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial.”
U.S. Const. amend. VI. Specifically, Plaintiff alleges that she
was held for more than four years in pretrial detention and
that all Defendants encouraged this for the purpose of using
Plaintiff's confinement as a bargaining chip to pressure her
husband to plead guilty. (Am. Compl. ¶ 234.)
The Medical Center Defendants argue that Plaintiff failed to
allege, other than in conclusory fashion, the causation element
of this claim with respect to the Medical Center Defendants.
(See Dkt. 55 at 14.) The Court agrees.
*634 [100] [101] A Section 1983 action, “like its state
tort analogs, employs the principle of proximate causation.”
Townes v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999);
see also Higazy v. Templeton, 505 F.3d 161, 181 (2d Cir. 2007)
(Jacobs, C.J., concurring) (“Our cases affirm that traditional
tort law principles apply equally to a Section 1983 plaintiff
and require him to show the causal link from the original
police misconduct up to the point of injury in order to proceed
on his claim.”). “It is well settled that the chain of causation
between a police officer's unlawful arrest and a subsequent
conviction and incarceration is broken by the intervening
exercise of independent judgment.” Townes, 176 F.3d at 147.
Here, Plaintiff fails to allege any facts to support a causal
link between the Medical Center's alleged conduct and the
unreasonable delay in Plaintiff criminal case being resolved.
[102] The City Defendants do not discuss Plaintiff's speedy
trial claim in their briefing. In any event, the Court finds that
Plaintiff's allegations that Defendants sought to use her as a
“bargaining chip” to obtain a guilty plea from her husband,
coupled with the four-year delay in her case being resolved
and her case being dismissed shortly after her husband's
conviction, is sufficient to state a speedy trial claim as to the
City Defendants who were involved in her prosecution.
Accordingly, the Court denies the City Defendants' motion
to dismiss Plaintiff's speedy trial claim as to Dets. Degnan,
Moser, Phelan, Heffernan, and Dr. Landi, but grants the
Medical Center Defendants' motion to dismiss this claim as
to them.
3. Unconstitutional Conditions of Confinement
[103] Plaintiff also alleges that certain conditions of
confinement violated her substantive and procedural due
process rights. (Am. Compl. ¶ 236.) 56 “A pretrial detainee's
claim 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 Eighth Amendment.” Darnell v. City of New
York, 849 F.3d 17, 29 (2d Cir. 2017) (citing, inter alia,
Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003)).
Only the Medical Center Defendants discuss this claim;
they assert that their conduct did not proximately cause
Plaintiff's condition of detention. (See Dkt. 55 at 14.) Not
only does Plaintiff fail to respond to this argument, she
does not discuss this claim at all, and therefore abandons
it. See deVere Grp. GmbH v. Op. Corp., 877 F.Supp.2d 67,
70 n.3 (E.D.N.Y. 2012) (“Because plaintiff did not address
defendants' motion to dismiss with regard to this claim, it
is deemed abandoned and is hereby dismissed.”) (quoting
Hanig v. Yorktown Cent. Sch. Dist., 384 F.Supp.2d 710, 723
(S.D.N.Y. 2005)); Harley v. City of New York, 14–CV–5452,
2016 WL 552477, at *7 (E.D.N.Y. Feb. 10, 2016) (finding
plaintiff's claims abandoned where plaintiff's response to
motion to dismiss “did not dispute, and in fact wholly
ignore[d], *635 defendants' argument” (citing Jackson v.
Federal Exps., 766 F.3d 189 (2d Cir. 2014))); Moccio v.
Cornell Univ., No. 09–Civ–3601, 2009 WL 2176626, at
*4 (S.D.N.Y. Jul. 21, 2009) (“Whatever the merit of [the
defendants'] argument [for dismissal], plaintiff has abandoned
the ... claim, as her motion papers fail to contest or otherwise
respond to defendants' contention.”), aff'd, 526 Fed.Appx.
124 (2d Cir. 2013); see also Simon v. City of New York, No. 14-
CV-8391, 2015 WL 4092389, at *2 (S.D.N.Y. Jul. 6, 2015)
(collecting cases).
[104] In any event, the Medical Center Defendants are
correct. Plaintiff's claim of unconstitutional conditions of
confinement must be dismissed as to all Defendants
because the Amended Complaint does not allege any facts
establishing the personal involvement of any Defendant
with respect to those conditions. See Spavone, 719 F.3d
at 135; Johnson v. Barney, 360 Fed.Appx. 199, 201 (2d
Cir. 2010) (summary order) (finding that plaintiff's claim
failed “as a matter of law” where plaintiff failed to allege
sufficient personal involvement on the part of the prison
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superintendent); Scott v. Fischer, 616 F.3d 100, 110 (2d Cir.
2010) (dismissing claim against Department of Correctional
Services (“DOCS”), where plaintiff had argued that DOCS
violated her constitutional rights by arresting her for non-
compliance with her post-release supervision (“PRS”), since
“the practice of re-incarcerating persons who violated their
administratively-imposed PRS was a practice of the Division
of Parole, and not of [DOCS]”). 57
Accordingly, the Court grants the Medical Center Defendants'
motion to dismiss Plaintiff's conditions of confinement
claim as to them. The Court also dismisses that claim
sua sponte as to the City Defendants since there are no
factual allegations in the Amended Complaint that support
such a claim as to these Defendants. See, e.g., Barreto
v. Suffolk Cnty., No. 10-CV-0028, 2010 WL 301949, at
*2 (E.D.N.Y. Jan. 20, 2010) (“When a complaint fails to
comply with the requirements of Rule 8, district courts have
the authority to dismiss the complaint sua sponte.” (citing
Salahuddin v. Cuomo, 861 F.2d 40, 41 (2d Cir. 1988)));
LeBarron v. Warren Cnty. Sheriff's Office, No. 1:13-CV-1572,
2015 WL 2248749 (N.D.N.Y. May 13, 2015) (sua sponte
dismissing plaintiff's claim where the claim failed to allege
facts plausibly suggesting personal involvement of individual
defendants even though the defendants did not raise a lack-
of-personal-involvement challenge to the claim); Fitzgerald
v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d
Cir. 2000) (recognizing that district courts have power to
sua sponte dismiss complaints “in order to preserve scarce
judicial resources”).
XI. MONELL CLAIMS
A. Against the City
[105] Plaintiff asserts a Monell claim against the City
based on her Section 1983 claims for false arrest, malicious
prosecution, and violation of right to a fair trial, alleging a
theory of “deliberate indifference” *636 to provide adequate
training for its officers who work on SBS cases or to
properly instruct Defendants of “applicable provisions of
[New York] State Penal Law ... federal and state constitutional
limitations....” (See Am. Compl. ¶ 243, 244, 248.) The Court
finds Plaintiff's allegations of municipal liability adequate to
state a Monell claim against the City.
[106] [107] [108] A municipality may be liable under
Section 1983 if a municipal “policy or custom” causes
“deprivation of rights protected by the Constitution.” Monell
v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690–91,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Jones v.
Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012). For a
Monell claim to survive a motion to dismiss, a plaintiff must
allege “sufficient factual detail” and not mere “boilerplate
allegations” that the violation of the plaintiff's constitutional
rights resulted from the municipality's custom or official
policy. Plair v. City of New York, 789 F.Supp.2d 459, 469
(S.D.N.Y. 2011) (collecting cases). “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,
2015 WL 1321685 (E.D.N.Y. Mar. 24, 2015) (citing Parker
v. City of Long Beach, 563 Fed.Appx. 39 (2d Cir. 2014), as
amended, (Apr. 21, 2014) (failure to train); Matusick v. Erie
Cnty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread
and persistent practice); Hines v. Albany Police Dep't, 520
Fed.Appx. 5, 7 (2d Cir. 2013) (actions of policymakers);
Schnitter v. City of Rochester, 556 Fed.Appx. 5, 8 (2d Cir.
2014) (failure to train or supervise); Missel v. Cnty. of
Monroe, 351 Fed.Appx. 543, 545 (2d Cir. 2009) (formal
policy and act of a person with policymaking authority for the
municipality)).
Here, Plaintiff advances two theories of municipal liability.
First, Plaintiff asserts that the City has a custom of zealously
promoting “debated science”, here, the diagnosis of SBS.
(Dkt. 61 at 26–27.) Second, Plaintiff asserts that the City
failed to train its employees, especially child abuse detectives,
regarding SBS cases. (Dkt. 61 at 29, 30). 58 The City contends
that Plaintiff's Monell claim must be dismissed because the
claims against individual City Defendants are without merit
(Dkt. 59 at 29) and because Plaintiff has not identified any
municipal policy that could serve as the basis of a Monell
claim (id. at 31). 59 The Court disagrees.
Plaintiff has alleged that “the NYPD and their precinct(s) and/
or the OCME [Office of Chief Medical Examiner of the City
of New York] ... [r]outinely conclude[ed] that Shaken Baby
Syndrome is responsible for many infant fatalities despite the
absence of evidence necessary to make such a finding.” (Am.
Compl. ¶ 243a.) *637 Additionally, Plaintiff alleges, inter
alia, that the NYPD and the OCME routinely ignored the
existence of debate and doubt in the medical community
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concerning SBS diagnoses (id. ¶ 243b), and routinely failed
to perform tests to rule out SBS or consider evidence that
contradicts an SBS diagnosis (id. ¶ 243c-d). 60 Plaintiff also
alleges that the City “with deliberate indifference failed to
provide adequate training and standards and policies and
practices for its police officers in SBS related cases.” (id. ¶
243.) The Court finds these allegations sufficient to overcome
a 12(b)(6) motion.
B. “Monell-type” claim against FHMC
[109] Plaintiff brings a “Monell-type” claim 61 against
FHMC based on multiple theories: (1) FHMC has a policy
pursuant to which its employees, such as Dr. Kupferman,
conduct forensic and factual investigation of SBS cases
“for non-medical purposes, in order to reach non-medical
conclusions, and with knowledge that law enforcement will
rely on these investigative conclusions in directing the course
of an arrest and prosecution” (Am. Compl. ¶ 257); (2)
FHMC “perpetuated this policy [of having its staff conduct
investigations for ‘non-medical purposes’] in order to see
those accused of SBS arrested, prosecuted, and convicted,
despite the lack of any evidence connecting them with any
crime whatsoever” (Am. Compl. ¶ 259); (3) FHMC failed
to train its staff on advances in the field of Child Abuse
Diagnosis and Investigation, including SBS (Am. Compl. ¶
260); (4) FHMC was aware that its employees, including
Dr. Kupferman, had a tendency to jump to conclusions and
to diagnose SBS without supporting evidence (Am. Compl.
¶ 264); (5) FHMC failed to supervise its employees (Am.
Compl. ¶¶ 265–266); and (6) FHMC failed to adequately
screen and hire its employees “to respect the constitutional
rights of those individuals with whom FHMC comes in
contact” (Am. Compl. ¶ 266).
While Plaintiff's pleading of a Monell-type claim against
FHMC is largely based on conclusory allegations, 62 Plaintiff
does *638 specifically allege that Dr. Kupferman had
a history of overzealously diagnosing SBS of which
FHMC was aware, and that Dr. Kupferman was a “final
policymaker” 63 with respect to these diagnoses, which
resulted in no confirmation being sought with respect to her
conclusion that “Annie's death was due to SBS.” (Am. Compl.
¶ 164.) 64 Taking Plaintiff's allegations as true, the Court finds
that she has nudged her Monell claim against FHMC across
the line from merely “conceivable to plausible.” See Iqbal,
556 U.S. at 680, 129 S.Ct. 1937.
Accordingly, FHMC's motion to dismiss Plaintiff's Monell
claim against it is denied.
C. Liability Based on Respondeat Superior
[110] [111] Plaintiff also argues that FHMC should be
held liable under the doctrine of respondeat superior and
therefore Plaintiff need not show that a violation of Plaintiff's
constitutional rights by FHMC's employees was due to a
policy or custom. (Dkt. 66 at 21–22.) However, the doctrine
of respondeat superior is not available to render a supervisor
liable under Section 1983 for the unconstitutional conduct
of his subordinates. Connick v. Thompson, 563 U.S. 51,
60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (“[U]nder §
1983, local governments are responsible only for ‘their own
illegal acts.’ ... They are not vicariously liable under § 1983
for their employee's actions.”). In Connick, the Supreme
Court unequivocally stated that respondeat superior cannot
be applied either to superiors or to local government entities.
See id.; Monell, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d
611 (holding that Section 1983's language demands a causal
relationship between the conduct of the defendant and the
plaintiff's constitutional deprivation, and that this relationship
is absent when liability is imposed solely on the basis of
respondeat superior ). In Rojas, the Second Circuit extended
Monell to Section 1983 suits against private entities. 924
F.2d 406. And just as a municipal entity cannot be held
liable under respondeat superior, a private corporation cannot
be held liable under respondeat superior for the allegedly
unconstitutional conduct of its employee. Green v. City of
New York, 465 F.3d 65 (2d Cir. 2006) (citing Rojas, 924 F.2d
at 408); see also Feder v. Sposato, No. 11-CV-193, 2014 WL
1801137, at *10 (E.D.N.Y. May 7, 2014) (noting that under
Rojas a plaintiff must prove an official policy that caused a
constitutional tort rather than relying on respondeat superior
theory). 65
*639 Accordingly, the Medical Center Defendants' motion
to dismiss Plaintiff's claim against FHMC based on the
doctrine of respondeat superior is granted.
XII. STATE CONSTITUTIONAL CLAIM
Plaintiff's tenth claim against all Defendants alleges violation
of Plaintiff's rights under the New York State Constitution to
be free of unreasonable and unlawful searches and seizures
under Article I, Section 12 and to be free of deprivation of
liberty and property without due process of law under Article
I, Section 6. (Am. Compl. ¶¶ 270–275.)
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[112] Plaintiff's State constitution claims must be dismissed
because “[d]istrict courts in this circuit have consistently
held that there is no private right of action under the New
York State Constitution where, as here, remedies are available
under § 1983.” Campbell v. City of N.Y., No. 09-CV-3306,
2011 WL 6329456, at *5 (E.D.N.Y. Dec. 15, 2011) (citation
and quotation marks omitted); see also Biswas v. City of New
York, 973 F.Supp.2d 504, 522 (S.D.N.Y. 2013) (dismissing
plaintiff's State constitutional tort claims of unlawful seizures
and arrest because the plaintiff had a remedy at common law
for false arrest/false imprisonment and a § 1983 claim based
on the same grounds and stating that “the state constitutional
tort is usually available only in cases in which a plaintiff ...
has no alternative remedy.”); see also Wahad v. F.B.I., 994
F.Supp. 237, 240 n.4 (S.D.N.Y. 1998) (“Section 1983 need not
provide the exact same standard of relief in order to provide
an adequate remedy”).
Here, Plaintiff has a remedy based on Section 1983.
Furthermore, Plaintiff has asserted the same due process
claim under Section 1983, making Plaintiff's State
constitutional claim duplicative. Accordingly, Defendants'
motion to dismiss Plaintiff's State constitutional claim is
granted.
XIII. IMMUNITY
A. Absolute Immunity of ADA Bishop
[113] District courts “are encouraged to determine the
availability of an absolute immunity defense at the earliest
appropriate stage.” Norton v. Town of Brookhaven, 33
F.Supp.3d 215, 229 (E.D.N.Y. 2014) (citation and quotation
marks omitted), reconsidered on other grounds, 47 F.Supp.3d
152 (E.D.N.Y. 2014). ADA Bishop claims absolute immunity
from liability for her prosecutorial actions (Dkt. 59 at 15).
See Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012)
(defendant claiming absolute immunity bears burden of
showing that immunity doctrine applies).
[114] [115] Prosecutors performing core prosecutorial
functions are entitled to absolute immunity. See Warney v.
Monroe Cnty., 587 F.3d 113, 120 (2d Cir. 2009) (citing Imbler
v. Pachtman, 424 U.S. 409, 430–31, 96 S.Ct. 984, 47 L.Ed.2d
128 (1976)). They are entitled to absolute immunity “because
their prosecutorial activities are ‘intimately associated with
the judicial phase of the criminal process, and thus [are]
functions to which the reasons for absolute immunity apply
with full force.’ ” Cornejo, 592 F.3d at 127 (quoting
Imbler, 424 U.S. at 430, 96 S.Ct. 984) (modification in
the original). Prosecutorial functions protected by absolute
immunity include conduct “preliminary to the initiation of a
prosecution,” such as “whether to present a case to a grand
jury ... whether and when to prosecute, whether to dismiss an
indictment against particular defendants, which witnesses to
call, and what other evidence to present.” *640 Giraldo, 694
F.3d at 165. The Supreme Court has “made clear that absolute
immunity may not apply when a prosecutor is not acting as
‘an officer of the court,’ but is instead engaged in other tasks,
say, investigative or administrative tasks.” Van de Kamp v.
Goldstein, 555 U.S. 335, 342, 129 S.Ct. 855, 172 L.Ed.2d 706
(2009) (citing Imbler, 424 U.S. at 431 n.33, 96 S.Ct. 984). A
prosecutor who engages in such activities is protected only by
qualified immunity. Sclafani v. Spitzer, 734 F.Supp.2d 288,
296 (E.D.N.Y. 2010) (citing Van de Kamp, 555 U.S. 335, 129
S.Ct. 855).
[116] Plaintiff argues that ADA Bishop's conduct was
administrative and investigatory in nature. (See Dkt. 61 at 15–
17.) In support of this argument, Plaintiff notes that ADA
Bishop “was an initial point of contact for the hospital,
and had been in communications with its staff [and] had
investigators ... from the DA's Office involved....” (Id. at
16.) However, none of this is alleged in the Complaint, and
Plaintiff does not direct the Court to any relevant portion
of the Complaint in support of these assertions. Moreover,
because information from FHMC staff was crucial to the
prosecution of the Lis, ADA Bishop's communications with
them are considered part of the prosecutorial process. See,
e.g., Schnitter v. City of Rochester, 556 Fed.Appx. 5 (2d Cir.
2014) (summary order) (finding ADA's interview of crucial
witness to be a core part of the prosecutorial process).
[117] Plaintiff's other allegations regarding ADA Bishop
also relate to prosecutorial functions. Plaintiff alleges that
ADA Bishop “failed to examine the medical reports and
ask relevant questions as to [Annie's medical] history” (Am.
Compl. ¶ 169), and also “ignored evidence ... and [the]
absence of witnesses” (Am. Compl. ¶ 174). However, these
allegations “amount[ ] to the claim that [ADA Bishop]
sought an indictment based on insufficient or unpersuasive
evidence[,] ... [thus challenging] an essential prosecutorial
decision.” Schnitter, 556 Fed.Appx. at 7. Moreover, a
prosecutor is entitled to absolute immunity even in the
face of allegations of “deliberate withholding of exculpatory
information” or “his knowing use of perjured testimony.”
Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir.
2005) (citing Imbler, 424 U.S. at 431 n.34, 96 S.Ct. 984);
see also Warney v. Monroe Cnty., 587 F.3d 113, 125 (2d
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Cir. 2009) (“[I]f the prosecutors had tested all the evidence,
and then sat on the exculpatory results for at least 72
days, they may well have violated Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); but they
would be absolutely immune from personal liability”). Thus,
absolute immunity applies even though Plaintiff alleges that
ADA Bishop “concealed evidence” (Am. Compl. ¶ 175) and
“misrepresented facts” (Am. Compl. ¶ 208). 66
[118] To the extent that Plaintiff's claims are asserted against
ADA Bishop in her official capacity, they are barred because
Bishop acted on behalf of New York State, which is immune
under the Eleventh Amendment. See Caldwell v. James,
14–CV–5384, 2015 WL 427980, at *3 (E.D.N.Y. Jan. 30,
2015) (“[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit
against the official's office. As such, it is no different from
a suit against *641 the State itself.” (quoting Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105
L.Ed.2d 45 (1989))); see, also Caldwell, 2015 WL 427980
at *3 (collecting cases where courts dismissed claims against
State officials on Eleventh Amendment grounds); Reid v.
Schuman, 83 Fed.Appx. 376, 377 (2d Cir. 2003) (summary
order) (“We have held that when a District Attorney is
prosecuting a criminal matter, she represents the State, not the
municipality.”) (citing Ying Jing Gan v. City of New York, 996
F.2d 522, 529 (2d Cir. 1993)).
Accordingly, Plaintiff's claims against ADA Bishop are
dismissed with prejudice.
B. City Defendants
The City Defendants also contend that the Officer
Defendants are entitled to qualified immunity as to Plaintiff's
Fourth Amendment claims of false arrest and malicious
prosecution. 67 However, for the reasons explained below,
the Court cannot find qualified immunity at this stage of the
litigation.
[119] [120] “Qualified immunity shields law enforcement
officers from § 1983 claims for money damages provided
that their conduct does not violate clearly established
constitutional rights of which a reasonable person would have
been aware.” Barboza v. D'Agata, 676 Fed.Appx. 9, 12, 2017
WL 214563, at *2 (summary order) (2d Cir. 2017) (citing
Ashcroft v. al–Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074,
179 L.Ed.2d 1149 (2011); Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Zalaski
v. City of Hartford, 723 F.3d 382, 388 (2d Cir. 2013)). It is
an affirmative defense as to which the defendant officers or
officials bear the burden of proof. Harlow, 457 U.S. at 815,
102 S.Ct. 2727.
[121] [122] In analyzing the applicability of qualified
immunity, courts conduct a two-step analysis: “First, do
the facts show that the officer's conduct violated plaintiff's
constitutional rights? Second, if there was a constitutional
violation, was the right clearly established at the time of the
officer's actions?” Barboza, 676 Fed.Appx. at 12, 2017 WL
214563, at *2 (citation omitted); Pearson v. Callahan, 555
U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In short,
“[e]ven if the right at issue was clearly established in certain
respects, ... an officer is still entitled to qualified immunity
if ‘officers of reasonable competence could disagree’ on
the legality of the action at issue in its particular factual
context.” Barboza, 676 Fed.Appx. at 12, 2017 WL 214563,
at *2 (emphasis in original) (quoting Walczyk v. Rio, 496 F.3d
139, 154 (2d Cir. 2007)). Moreover, courts are “permitted
to exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular
case at hand.” Pearson, 555 U.S. at 236, 129 S.Ct. 808.
At this juncture, the Court cannot find that the Officer
Defendants are entitled to qualified immunity, especially
where Plaintiff's theory of liability is based on the alleged
fabrication of evidence and suppression of exculpatory
evidence. (See, e.g., Am. Compl. ¶ 145 (with respect to
malicious prosecution claim, stating that a criminal complaint
containing false information was signed with knowledge
that there was no legal basis to prosecute Plaintiff); Am.
Compl. ¶ 222 (with respect *642 to Section 1983 conspiracy
claim, noting that Defendants conspired to accuse Plaintiff
of a crime she did not commit); Am. Compl. ¶ 225 (with
respect to unreasonably prolonged detention claim, noting
that Defendants mishandled exculpatory evidence); Am.
Compl. ¶ 234 (noting that Plaintiff was in pretrial detention
because of Defendants' collateral motive).)
Based on these allegations, Plaintiff has sufficiently
demonstrated potential violations of her constitutional right
to be free from prosecution based on fabricated or suppressed
exculpatory evidence. Those rights were clearly established
at the time of her prosecution and pretrial detention, such that
no reasonable officer could believe that fabricating evidence
or suppressing exculpatory evidence is constitutional. See
Coggins v. Cnty. of Nassau, 988 F.Supp.2d 231, 245, n.8
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(E.D.N.Y. 2013) (“It is beyond cavil that [ ] conspiring to and
actually falsifying police records, evidence, and testimony
violates clearly established rights.... and [ ] no public
official would think it was objectively reasonable to violate
those rights.”); see also Coggins, 776 F.3d 108 (affirming
the district court's conclusion that qualified immunity was
inappropriate); Blake v. Race, 487 F.Supp.2d 187, 214
(E.D.N.Y. 2007) (“The [Second Circuit] found qualified
immunity unavailable because conspiring to fabricate and
forward to prosecutors a known false confession ‘violates
an accused's clearly established constitutional right, and no
reasonably competent police officer could believe otherwise.’
”) (quoting Ricciuti, 124 F.3d at 130); 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.”).
[123] The City Defendants assert that the Officer Defendants
are entitled to qualified immunity because a police officer
who signs a supporting deposition under penalty of perjury
may be entitled to qualified immunity from a malicious
prosecution claim if he reasonably relied on the statement
of a witness. See, e.g., Jean–Laurent v. Bowman, 2014
WL 4662221, at *4 (citing Loria v. Gorman, 306 F.3d
1271, 1289–90 (2d Cir. 2002)). However, because Plaintiff
contends that Dr. Kupferman's and Dr. Landi's diagnoses of
Annie's condition and the cause of her death were “entirely
unsupported and unsupportable by any medical science or
clinical or forensic evidence” (see Am. Compl. ¶¶ 150,
160), the Court cannot determine at this point whether
it was reasonable for the officers—some of whom are
members of the NYPD Child Abuse Squad—to rely on the
statements of witnesses, such as Dr. Kupferman or Dr. Landi.
Moreover, Plaintiff alleges that the Officer Defendants (and
Dr. Kupferman) ignored her claims of innocence out of
“unconcealed and unrestrained racism” (Am. Compl. ¶ 114),
and that this led to her arrest and prosecution. No reasonable
officer would believe seeking arrest and prosecution based on
such improper motives was constitutional.
Additionally, in support of their argument, the City
Defendants cite to V.S. v. Muhammad, 595 F.3d 426 (2d
Cir. 2010). Although V.S. may seem similar to the instant
case, the two are distinguishable in that the “reasonably
objective” decision made by the defendants in V.S. was in a
very different circumstance from the challenged conduct of
the Officer Defendants here. In V.S., the Second Circuit held
that a caseworker at the New York City Administration of
Child Services was entitled to qualified immunity because
she sought a court order permitting the removal of a child
from the parent. Id. at 431. On summary judgment, the
district court found that qualified immunity could not be
granted given the plaintiff's allegation that the caseworker
had relied on a diagnosis *643 by a doctor who was
known to have repeatedly misdiagnosed children's injuries as
evidence of child abuse. Id. at 431 (district court reasoned
that “reliability of [the doctor's] diagnosis ... is an issue of
material fact that goes directly to the objective reasonableness
of the caseworker in seizing and removing the child from
his mother”). The Second Circuit reversed the district court's
decision on qualified immunity, holding that “to impose
on [a] caseworker the obligation in such circumstances of
assessing the reliability of a qualified doctor's past and present
diagnoses would impose a wholly unreasonable burden of
the very kind qualified immunity is designed to remove.”
Id. However, in V.S., the caseworker was making a time-
sensitive decision to remove a child from a potentially
dangerous and abusive environment. See V.S. ex rel. T.S. v.
Muhammad, 581 F.Supp.2d 365, 388 (E.D.N.Y. 2008) (noting
defendants' argument that “in light of [the doctor's diagnosis
of injury caused by child abuse], the caseworker's belief in
the imminent danger to the child was reasonable and their
removal of [the child] into protective custody was justified”);
see also Cornejo, 592 F.3d at 128–29 (recognizing that
the caseworker defendants were forced to “choose between
difficult alternatives” and were reasonable to believe that
“immediate temporary removal” of the children from a
potentially abusive environment was justified).
Here, in determining whether the officers reasonably believed
that there was probable cause to prosecute Plaintiff, the Court
notes that the decision to prosecute was not made under the
same threat of imminent harm or time-sensitivity; there was
no child to be protected from a potentially abusive parent,
as the Lis' only child had already died. Nor was the decision
to prosecute a temporary one. Moreover, in V.S., the Second
Circuit found that the caseworker's actions were reasonable
because the doctor had diagnosed the child with SBS “in
the absence of any plausible alternative.” V.S., 595 F.3d at
431 (emphasis added). By contrast, Plaintiff alleges that there
were several plausible alternative explanations to SBS as the
cause of death, including a genetic disorder and the child's
prior medical history, that the Officer Defendants chose to
ignore. (Am. Compl. ¶ 173.) Plaintiff also alleges that at some
point, the Officer Defendants became aware of information
that cast doubt on the medical opinions, including the SBS
diagnosis, upon which the investigation was premised, but the
officers failed to disclose that information to the prosecution
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or consider it before deciding to prosecute Plaintiff or
continue that prosecution. (See, e.g., Am. Compl. ¶ 178.) At
this stage, the Court must accept these allegations as true,
and thus V.S. does not dictate that the Officers are entitled to
qualified immunity.
Accordingly, the Court does not find that the Officer
Defendants are entitled to qualified immunity as to Plaintiff's
false arrest and malicious prosecution claims.
C. Dr. Landi
The City Defendants contend that Dr. Landi is entitled to
absolute and qualified immunity. (Dkt. 59 at 17.) Again, at
this stage of the litigation, the Court finds it inappropriate to
dismiss claims against Dr. Landi based on immunity.
1. Absolute Immunity
In determining whether Dr. Landi's acitivity was investigative
or prosecutorial, the Court applies a “functional approach”
and looks to the function being performed rather than to
the office or identity of the defendant. See Cornejo, 592
F.3d at 127 (citing Briscoe v. LaHue, 460 U.S. 325, 342,
103 S.Ct. 1108, 75 L.Ed.2d 96 (1983)); see also Warney v.
Monroe Cnty., 587 F.3d 113, 121 (2d Cir. 2009) (identifying
prosecutorial immunity “not by the identity of *644 the actor
but by reference to the ‘function’ performed”); Ying Jing Gan
v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993) (noting
that immunity attaches to the “function performed, not [ ] the
office itself”).
In arguing that Dr. Landi is entitled to absolute immunity,
the City Defendants rely heavily on Newton v. City of New
York, 738 F.Supp.2d 397 (S.D.N.Y. 2010). However, the Court
does not find Newton to be applicable here. In Newton, the
plaintiff, who had been convicted of rape, brought a civil
rights action against a forensic scientist, employed by the
Office of the Chief Medical Examiner of the City of New
York, for allegedly failing to conduct proper DNA testing
that would have exonerated the plaintiff. Id. at 400–03. The
forensic scientist had conducted a DNA test three years after
the plaintiff was convicted for a court-ordered adversarial
post-conviction proceeding. The district court held that the
scientist was entitled to absolute and qualified immunity.
Id. at 411, 416. However, in granting absolute immunity,
the court stated that “the protection of absolute immunity
may not be appropriate in a pre-conviction context where
the jury's determination of guilt may result from a faulty
scientific process, and where the laboratory scientist's role is
primarily an investigative one.” Id. at 411. That distinction is
critical here, given that Dr. Landi, unlike the forensic scientist
in Newton, was involved in Plaintiff's criminal case in a
pre-conviction context and is alleged to have provided false
statements and analyses in support of the criminal complaint
and the NYPD's investigation.
[124] Based on the allegations in the Complaint, the Court
cannot find, as a matter of law, that Dr. Landi was acting
in a prosecutorial role rather than an investigatory one.
See Hill v. City of New York, 45 F.3d 653 (2d Cir. 1995)
(“[W]hen it may not be gleaned from the complaint whether
the conduct objected to was performed ... in an advocacy or
an investigatory role, the availability of absolute immunity
from claims based on such conduct cannot be decided as a
matter of law on a motion to dismiss.”); see also Wilkins v.
Herky, No. 11-cv-6104, 2013 WL 2385065, at *7 (W.D.N.Y.
May 29, 2013) (“[I]t is appropriate to address absolute
immunity in a 12(b)(6) context if the complaint clearly
indicates the nature of the function for which the defendant
is being sued....” (emphasis added)); also compare Newton,
738 F.Supp.2d at 408, 412 (noting that the defendant-scientist
was entitled to absolute immunity because the scientists' role
in the plaintiff's criminal case was in an advocacy capacity
and not for the purpose of identifying potential suspects)
with Cornejo, 592 F.3d at 128 (finding that the district
court was incorrect to find that a caseworker was entitled to
absolute immunity because the caseworker's initiation of the
child's removal from his mother's custody was functionally
equivalent to police officers making arrests in criminal cases).
2. Qualified Immunity
The City Defendants also argue that Dr. Landi is entitled
to qualified immunity because she did not violate Plaintiff's
Fourth Amendment rights. (Dkt. 59 at 19.) The City
Defendants contend that Dr. Landi could not have falsely
arrested or maliciously prosecuted Plaintiff and thus there was
no violation of Plaintiff's clearly established constitutional
right. (Id.) However, the Court has ruled that Plaintiff's
malicious prosecution claim will, in fact, proceed against
Dr. Landi and several Officer Defendants. Furthermore,
Plaintiff's claims against Dr. Landi are not limited to
false arrest and malicious prosecution. For example, as
previously discussed, Plaintiff also asserts fair trial claims,
based on alleged fabrication of evidence and concealment of
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exculpatory evidence, against Dr. *645 Landi. Accordingly,
the Court cannot find, at this time, that Dr. Landi is entitled
to qualified immunity.
D. Dr. Kupferman Is Not Entitled to Statutory
Immunity
[125] The Medical Center Defendants assert that Dr.
Kupferman is entitled to statutory immunity under the New
York Child Protective Services Act. (Dkt. 55 at 2–3.)
Section 413 of the Child Protective Services Act requires
physicians, such as Dr. Kupferman and FHMC's staff, to
report suspected child abuse if they have “reasonable cause”
to believe that a child has been abused. See N.Y. Soc. Serv.
Law § 413(1)(a) (McKinney). Failure to report a case of
suspected child abuse is a class A misdemeanor. N.Y. Soc.
Serv. Law § 420 (McKinney). Section 419 of the Child
Protective Services Act provides good faith immunity from
any liability to individuals who report suspected cases of child
abuse. That section states in pertinent part:
Any person, official or institution
participating in good faith in ... the
making of a report [of suspected child
abuse] ... pursuant to this title shall
have immunity from any liability, civil
or criminal, that might otherwise result
by reason of such actions. For the
purpose of any proceeding, civil or
criminal, the good faith of any such
person, official or institution required
to report cases of child abuse or
maltreatment ... shall be presumed....
Contrary to the Medical Center Defendants' assertion, the
Court does not find Thomas v. Beth Israel Hospital Inc.,
710 F.Supp. 935 (S.D.N.Y. 1989) to be particularly relevant.
In Thomas, the court held that the defendant-physician who
examined an infant and reported suspected child abuse had
immunity under Section 419 of the Child Protective Services
Act because the physician had “reasonable cause” to suspect
abuse when the examination revealed multiple abrasions
and black and blue marks. Id. at 941–42. In contrast to
Thomas, however, Plaintiff alleges that Dr. Kupferman's
role went beyond simply reporting suspected child abuse.
Plaintiff alleges that Dr. Kupferman took on an active role
in investigating the Lis. (See Am. Compl. ¶ 115 (Kupferman
“repeatedly screamed at [the Lis] that they killed their
daughter....”); Am. Compl. ¶ 120 (“Kupferman conducted a
‘forensic interview’ of plaintiff.”)).
Similarly, the Court is not convinced by the Medical Center
Defendants' reliance on Storck v. Suffolk County Dep't
of Social Servs., 62 F.Supp.2d 927, 946 (E.D.N.Y. 1999)
because, there, the court “clearly” found that the defendant
doctors were acting “in the discharge of their duties and
within the scope of their employment.” Here, Plaintiff's
allegations, accepted as true, suggest that Dr. Kupferman's
conduct may have exceeded the scope of her employment
with FHMC. (See, e.g., Am. Compl. ¶ 157 (Kupferman
“acted as a deputy of the NYPD and the Queens County
D.A.'s Office” (emphasis in original)); Am. Compl. ¶ 161
(Kupferman “played an active role in the prosecution of Ying
Li ... that went well beyond her role, and into ancillary and
forensic aspects of determining motive, culpability, and the
veracity of Ying Li.”).) Moreover, Plaintiff alleges that Dr.
Kupferman's determination that Annie died of SBS was “such
a substantial departure from accepted professional judgment,
practice, or standards” (Am. Compl. ¶ 235), and that Dr.
Kupferman failed to consider other pertinent information that
might have suggested alternative causes for Annie's death
(see, e.g., Am. Compl. ¶ 122). Taking these allegations as
true, such alleged acts “go beyond mere error and amount
to willful misconduct,” and thus Dr. Kupferman would not
be entitled to statutory immunity based on the lack of *646
“good faith”. See Section 419 of the Child Protective Services
Act; see also Estiverne v. Esernio–Jenssen, 581 F.Supp.2d
335, 347 (E.D.N.Y. 2008) (allowing plaintiffs to proceed
with discovery to prove their allegations of bad faith on the
part of the Medical Center Defendants and denying statutory
immunity, given that plaintiff alleged that the defendant-
doctor's “diagnosis of child abuse was not supported by any
medical evidence ... [and] that she disregarded the medical
assessment of a colleague.”).
Accordingly, because the Court cannot determine at this
time whether Dr. Kupferman enjoys immunity under the
Child Protective Services Act, the Court denies the Medical
Center Defendants' motion to dismiss the claims against Dr.
Kupferman on the ground that she is statutorily immune.
XIV. LEAVE TO AMEND
Plaintiff has requested leave to amend her complaint in
the event any of her claims are dismissed. For the reasons
discussed below, the Court denies that request in its entirety.
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[126] [127] Federal Rules of Civil Procedure 15(a)
provides that a court “should freely give leave [to amend]
when justice so requires.” “Although ‘it is the usual practice
upon granting a motion to dismiss to allow leave to replead,
such leave should be denied where the proposed amendment
would be futile.’ ” S.B. v. City of New York, No. 14-CV-1021,
2016 WL 4530455, at *18 (E.D.N.Y. Aug. 29, 2016) (citation
and quotation marks omitted); see also Hill v. Curcione, 657
F.3d 116, 123 (2d Cir. 2011). An amendment to a pleading
is considered futile if the claim is time-barred due to the
expiration of the applicable statute of limitations period. See,
e.g., Kwon v. Santander Consumer U.S.A., No. 15-CV-3352,
2016 WL 6518578, at *6 (E.D.N.Y. Oct. 6, 2016) (dismissing
with prejudice claims that are time-barred while allowing the
plaintiff to replead his other claims); Johnson v. New York
City Police Dept., 651 Fed.Appx. 58 (2d Cir. 2016) (summary
order) (affirming district court's dismissal of the plaintiff's
Section 1983 claims “without granting him an opportunity
to amend or discussing whether leave to amend would be
appropriate” because the three-year statute of limitations
expired).
[128] First, the Court denies, as futile, leave to amend
any time-barred claims and all claims against ADA Bishop,
whom the Court has found is entitled to absolute immunity.
See, e.g., Harrison v. Cnty. of Nassau, No. 15-cv-2712,
2016 WL 4083381, at *6 (E.D.N.Y. Aug. 1, 2016) (denying
leave to replead claims against ADAs “because it is clear
that all of plaintiff's allegations relate to their involvement
in [plaintiff's] prosecution and are therefore protected by
absolute immunity”); Johnson, 651 Fed.Appx. at 61 (finding
leave to amend would be futile where the district court found
the prosecutor was entitled to absolute immunity); Contreras
v. Perimenis, 562 Fed.Appx. 50 (Summary Order) (2d Cir.
2014) (same).
Second, the Court exercises its discretion to deny Plaintiff
leave to amend as to the other claims that the Court has
dismissed. Avent v. Doe, No. 2008 WL 877176, at *14
(N.D.N.Y. Mar. 31, 2008) (“Plaintiff has already filed one
amended complaint in this action, and this court has found
that the complaint does not state a claim[.]”). The Court
already permitted Plaintiff the opportunity to amend the
complaint, and, in fact, at the pre-motion conference held
in connection with Defendants' motions to dismiss, urged
Plaintiff to correct the deficiencies identified in Defendants'
pre-motion conference requests and at the conference, and to
pare down her claims to only viable ones. However, as noted
throughout this decision, Plaintiff *647 did not heed the
Court's advice, nor make good use of that opportunity to prune
her complaint of invalid claims or to add useful or relevant
factual allegations or particularity to her complaint, which
is currently 275 paragraphs. To allow Plaintiff to attempt to
amend her complaint again would be an act of futility and a
waste of resources. The Court therefore denies Plaintiff leave
to amend her complaint a second time.
In summary, the following claims are dismissed:
• Count 1 (False Arrest and Imprisonment)—as to all
Defendants;
• Count 2 (Malicious Prosecution)—as to all Defendants,
except Defendants Degnan and Landi, and the Medical
Center Defendants;
• Count 3 (Malicious Abuse of Process)—as to all
Defendants, except Defendants Degnan and Landi;
• Count 4 (Failure to Intervene)—as to all Defendants;
• Count 5 (Section 1983 Conspiracy)—as to all Defendants,
except Defendants Degnan, Moser, Phelan, Heffernan, and
Landi, and the Medical Center Defendants;
• Count 6 (Unreasonably Prolonged Detention)—as to all
Defendants, except Defendants Degnan, Moser, Phelan,
Heffernan, and Landi;
• Count 7 (Due Process)—as to all Defendants, except
Defendants Degnan, Moser, Phelan, Heffernan, Landi, and
Medical Center Defendants. However, the speedy trial
aspects of Plaintiff's due process claim is dismissed as to
the Medical Center Defendants. Moreover, Plaintiff's due
process claim of failure to investigate and conditions of
confinement are dismissed as to all Defendants.
• Count 10 (State Constitution)—as to all Defendants.
CONCLUSION
For the reasons stated above, the City Defendants' motion
to dismiss is GRANTED in part and DENIED in part. The
Medical Center Defendants' motion to dismiss is GRANTED
in part and DENIED in part. Plaintiff shall proceed on the
following claims:
• Malicious Prosecution against Defendants Degnan,
Landi, and the Medical Center Defendants;
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• Malicious Abuse of Process against Defendants Degnan
and Landi;
• Section 1983 Conspiracy against Defendants Degnan,
Moser, Phelan, Heffernan, Landi, and the Medical
Center Defendants;
• Unreasonably Prolonged Detention against Defendants
Degnan, Moser, Phelan, Heffernan, and Landi;
• Due Process (Brady violation and fabrication of evidence)
against Defendants Degnan, Moser, Phelan, Heffernan,
and Landi, and the Medical Center Defendants;
• Due Process (speedy trial) against Defendants Degnan,
Moser, Phelan, Heffernan, and Landi;
• Monell claims against the City and FHMC.
Given that several Defendants as to whom claims are
proceeding are not yet represented (see supra footnote 1),
Plaintiff shall by April 14, 2017 advise the Court in writing
how she intends to proceed with respect to these Defendants.
SO ORDERED.
All Citations
246 F.Supp.3d 578
Footnotes
1 The twelve individual NYPD Officer Defendants are Det. Matthew Degnan (“Det. Degnan”), Lt. Thomas
Conforti (“Lt. Conforti”), Det. David Moser (“Det. Moser”), Lt. John Perdoch (“Lt. Perdoch”), Det. John Phelan
(“Det. Phelan”), P.O. Yatyu Yam (“P.O. Yam”), Det. Sgt. Guisella Rodriguez (“Sgt. Rodriguez”), Lt. Arthur
Hall (“Lt. Hall”), Det. Michael Heffernan (“Det. Heffernan”), Sgt. Timothy Cai (“Sgt. Cai”), Det. Douglas Lee
(“Det. Lee”), Det. Dennis Chan (“Det. Chan”), Sgt. “FNU” Manfredi (“First Name Unknown”) (“Sgt. Manfredi”).
Of these individual Officer Defendants, Dets. Moser, Phelan, Heffernan, and Sgt. Manfredi are not
represented. (Dkt. 69.)
2 The Court takes the allegations in the Amended Complaint as true, as it must on a motion to dismiss under
FRCP 12. See EEOC v. Port Auth. of New York & New Jersey, 768 F.3d 247, 253 (2d Cir. 2014) (“[W]e accept
all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.”).
3 A medical report from that day indicated that Annie had no external signs of trauma. (Am. Compl. ¶ 98.)
4 The Amended Complaint does not indicate where these interviews occurred. (Am. Compl. ¶¶ 112–15.)
5 SBS is “a devastating form of child abuse caused by violently shaking a baby, resulting in traumatic brain
injury, which is characterized by a constellation of injuries including subdural hematomas (i.e. bleeding in
the brain), retinal hemorrhages, rib fractures and long-bone fractures.” Phelan ex rel. Phelan v. Torres,
843 F.Supp.2d 259, 261 (E.D.N.Y. 2011) (citing, inter alia, Shaken Baby Syndrome, Medline Plus Medical
Encyclopedia, a service of the U.S. National Library of Medicine, National Institutes of Health (“Medline Plus”),
http://www.nlm.nih.gov/medlineplus/ency/article/000004.htm). However, some courts have acknowledged
that there is an “emergence of a legitimate and significant dispute within the medical community as to the
cause of [ ] injuries” that used to be attributed to SBS. See State v. Edmunds, 308 Wis.2d 374, 746 N.W.2d
590, 599 (Wis. Ct. app. 2008); see also Cavazos v. Smith, 565 U.S. 1, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011)
(Ginsburg, J., dissenting) (“What is now known about shaken baby syndrome (SBS) casts grave doubt on
the charge leveled against [petitioner].”)
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6 As an initial matter, the Court cautions Plaintiff's counsels that their scatter-shot, kitchen-sink approach to
this litigation thus far has done a great disservice to her client's case. Plaintiff's 275–paragraph Amended
Complaint indiscriminately asserts eight of her ten claims against every single Defendant, even though, as
discussed herein, these claims clearly should not have been brought against many of these Defendants, and
many of these Defendants should not have been named at all. Despite the Court's repeated suggestions at
the pre-motion conference that Plaintiff's counsel focus on developing meritorious claims and arguments, and
consider pruning this action of non-viable claims, Plaintiff not only persisted with all of her claims, but doubled
down on her helter-skelter approach by responding to Defendants' motions to dismiss with two separate
Memoranda of Law (“MOLs”) with internal editing notes left for the Court to read, place-holders for citations,
and multiple grammatical errors. (See, e.g., Dkt. 61 at 22 n.36; id. at 41; Dkt. 66 at 29). “Not only does the
‘kitchen sink’ approach to briefing cause distraction and confusion, it also ‘consumes space that should be
devoted to developing the arguments with some promise.’ ” Dynegy Marketing & Trade v. Multiut Corp., 648
F.3d 506, 512 (7th Cir. 2011) (citation omitted). Indeed, here, the Court has had to struggle to tease out of
Plaintiff's MOLs legally coherent and supported positions. While the Court has done so in order to comply
with its duty at this stage to view the complaint in the light most favorable to Plaintiff, it will not be so forgiving
as this case progresses.
7 Citations to “ECF” refer to the pagination generated by the Court's electronic docketing system and not the
document's internal pagination.
8 The Amended Complaint repeatedly refers to the criminal complaint in alleging Plaintiff's fabrication of
evidence and malicious prosecution claims. (See, e.g., Am. Compl. ¶ 145 (“Defendant DEGNAN signed
the criminal court complaint ... despite his knowing that there was no truth to those allegations....”); Am.
Compl. ¶ 146 (alleging that the criminal court complaint was based on fabricated information provided to the
District Attorney's Office); Am. Compl. ¶ 150 (alleging that Dr. Landi made a false statement in the criminal
complaint)). Plaintiff also alleges that Dr. Landi made a false statement in the criminal complaint that Annie
may have been saved had Plaintiff sought medical care for Annie sooner. (Am. Compl. ¶ 150.)
9 See also McLoughlin v. People's United Bank, Inc., 586 F.Supp.2d 70, 73 (D. Conn. 2008) (“The Court may
take judicial notice of the press releases of government agencies” (citing In re Zyprexa Products Liability
Litigation, 549 F.Supp.2d 496, 501 (E.D.N.Y. 2008))); Mitchell v. Home, 377 F.Supp.2d 361, 367 n.1 (S.D.N.Y.
2005) (“The press release [from the New York Attorney General] may be considered on this motion to dismiss
because ... this Court may take judicial notice of it as a matter of public record[.]”); Roth v. Jennings, 489 F.3d
499, 509 (2d Cir. 2007) (“If the court takes judicial notice, it does so in order to determine what statements
they contained—but ... not for the truth of the matters asserted.”).
10 Moreover, Plaintiff's counsel has also represented to the Court that she has used one of the press releases
in order to identify the named Defendants (see 1/7/2016 Pre–Motion Conference Transcript), and the Court
therefore may consider at least one of the press releases to be “integral” to the Complaint. See Sira, 380
F.3d at 67. The Court, however, will not consider the new factual assertions Plaintiff makes in her opposition
papers. See Green v. City of Mount Vernon, 96 F.Supp.3d 263, 285 (S.D.N.Y. 2015) (citing, inter alia, Fonte
v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (“Factual allegations contained in
legal briefs or memoranda are also treated as matters outside the pleading[s] for purposes of Rule 12(b).”)).
11 Though Plaintiff alleges a claim of failure to intervene in her arrest and prosecution, the allegation that Sgt.
Manfredi simply was present at the precinct when the Lis were brought there by Det. Phelan is still not enough
to plausibly allege that Sgt. Manfredi was aware of the circumstances relating to Plaintiff's arrest or detention,
such that he had a duty to intervene.
12 Plaintiff alleges that P.O. Yam interpreted on October 23, 2007 (Am. Compl. ¶¶ 101–06), that Sgt. Cai
interrogated Hang Bin Li on October 29, 2007 (Am. Compl. ¶ 126), and that Det. Chan “served as an
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interpreter” from the afternoon of October 24, 2007, until the morning of October 25, 2007, when Heffernan
and Moser interrogated the Lis (Am. Compl. ¶ 112).
13 Plaintiff also alleges a false imprisonment claim under Section 1983. However, the Court does not address this
claim separately, because pursuant to New York law, false arrest and false imprisonment are “synonymous.”
Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991); see also Singer, 63 F.3d at 118 (“The common law tort of
false arrest is a species of false imprisonment.” (citing Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d
87, 335 N.E.2d 310 (1975))).
14 Although Plaintiff has not alleged in her Amended Complaint when she made her initial appearance in State
court or when she was arraigned on the indictment, given her March 2008 arrest and incarceration date, her
arraignment clearly took place long before March 2012.
15 The Court recognizes that “the application of the doctrine of equitable tolling is not limited to [fraudulent
concealment].” Valdez ex rel. Donely v. U.S., 518 F.3d 173, 183 (2d Cir. 2008). However, based on Plaintiff's
articulation of why equitable tolling should be granted, it is clear that she is seeking equitable tolling based on
fraudulent concealment. Plaintiff's MOL also mentions “equitable estoppel,” which is applicable “where the
plaintiff knew of the existence of the cause of action, but the defendant's conduct caused plaintiff to delay
in bringing suit.” (Dkt. 66 at 7 n.7 (citing, inter alia, Cerbone v. Int'l Ladies' Garment Workers' Union, 768
F.2d 45, 49–50 (2d Cir. 1985)).) However, equitable estoppel is inapplicable here, because Plaintiff's theory
is that she was unaware of her false arrest claim, not that she was aware of it, but Defendants' conduct
caused her to delay bringing the claim. (See Am. Compl. ¶ 209; see also Dkt. 66 at 7 (asking the Court
to toll the statute of limitations until 2013, “when Plaintiff became aware-that she had, in fact, been falsely
arrested....” (emphasis added)).)
16 In fact, there is a discrepancy between what Plaintiff argues in her MOL and what she alleges in the Complaint
regarding the suppressed or concealed information that warrants equitable tolling. In the Complaint, Plaintiff
alleges that Dr. Landi stated that Plaintiff's failure to get earlier medical care contributed to Annie's death. (Am.
Compl. ¶ 150.) But in her MOL, she attributes that statement to Dr. Kupferman. (Dkt. 66 at 7 (“Plaintiff relied
on false statements made by Kupferman that Annie's death was caused by Ying Li not obtaining lifesaving
medical attention for Annie, and that had she come to the hospital sooner, she could have saved Annie.”)).
17 Osteogenesis imperfecta is “a group of genetic disorders that mainly affect the bones. The term ‘osteogenesis
imperfecta’ means imperfect bone formation. People with this condition have bones that break easily, often
from mild trauma or with no apparent cause. Multiple fractures are common, and in severe cases, can occur
even before birth.... The milder forms of osteogenesis imperfecta ... are characterized by bone fractures
during childhood and adolescence that often result from minor trauma.... Other types of osteogenesis
imperfecta are more severe, causing frequent bone fractures that may begin before birth and result from little
or no trauma.... The most severe forms of osteogenesis imperfecta ... can include an abnormally small, fragile
rib cage and underdeveloped lungs. Infants with these abnormalities have life-threatening problems with
breathing and often die shortly after birth.” See https://ghr.nlm.nih.gov/condition/osteogenesis-imperfecta
(Last visited 3/25/2017.)
18 Because Plaintiff's false arrest claim is time-barred, the Court does not address the Defendants' argument
that there was probable cause to arrest Plaintiff.
19 The Second Circuit in Singer v. Fulton Cnty. Sheriff, 63 F.3d 110 (2d Cir. 1995), left open the possibility of a
plaintiff bringing a malicious prosecution claim premised on some other constitutional right. Id. at 116 n.5 (“It
is theoretically possible ... for a plaintiff to premise a malicious prosecution claim on some other constitutional
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right. Where that is the case, it will be the standard governing that right that will determine whether there has
been a constitutional violation.”)
20 “The Fourth Amendment right implicated in a malicious prosecution action is the right to be free of
unreasonable seizure of the person—i.e., the right to be free of unreasonable unwarranted restraints on
personal liberty. A plaintiff asserting a Fourth Amendment malicious prosecution claim under § 1983 must
therefore show some deprivation of liberty consistent with the concept of ‘seizure.’ ... To maintain a § 1983
claim for malicious prosecution under the Fourth Amendment, the deprivation of liberty—the seizure—must
have been effected ‘pursuant to legal process.’ ” Singer, 63 F.3d at 116–17.
21 The Court notes that Plaintiff's opposition did little to assist the Court in resolving this issue. In her response,
Plaintiff directed the Court to thirty paragraphs in the Amended Complaint, many of which did not allege facts
related to whether the City Defendants initiated Plaintiff's prosecution. (See Dkt. 61 at 10 (citing to paragraphs
168–198 of the Amended Complaint).) For example, paragraph 179 states, “As plaintiff did not commit or aid/
abet in the any of the offenses with which she was charged, she pleaded not guilty to all counts, and bail was
set at $250,000.” (Am. Compl. ¶ 179.) This plainly has nothing to do with whether Plaintiff has adequately
alleged, for each of the City Defendants, participation in the prosecution. Plaintiff is reminded that “[w]hile the
trial court has discretion to conduct an assiduous review of the record in an effort to weigh the propriety of
granting a summary judgment motion, it is not required to consider what the parties fail to point out.” Monahan
v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir. 2000) (quotations and citations omitted);
see also 24/7 Records, Inc. v. Sony Music Entertainment, Inc., 429 F.3d 39, 46 (2d Cir. 2005).
22 At this stage, the Court need not decide whether the termination of Plaintiff's criminal case was, in fact, a
favorable one; rather, the only issue before the Court is whether Plaintiff has sufficiently alleged a favorable
termination. See Bacquie v. City of New York, No. 99 CIV10951, 2000 WL 1051904, at *3 (S.D.N.Y. Jul.
31, 2000).
23 The Medical Center Defendants cite Singer, 63 F.3d 110, in support of their argument. (Dkt. 56 at 5.) However,
as discussed below, because the New York Court of Appeals decision in Cantalino largely negates this aspect
of Singer, the Court does not address Singer. In any event, the Medical Center Defendants need not rely
on Singer, given the numerous federal court decisions, including one by the Second Circuit, reaching the
same conclusion as Singer.
24 Significantly, reiterating part of its holding in Smith–Hunter, the Court of Appeals in Cantolino stated, “[t]o
be sure, there are circumstances where a dismissal in the interest of justice is inconsistent with innocence
because it represents ‘mercy requested or accepted by the accused’ ”. 96 N.Y.2d at 396, 729 N.Y.S.2d 405,
754 N.E.2d 164 (quoting Smith–Hunter, 95 N.Y.2d at 197, 712 N.Y.S.2d 438, 734 N.E.2d 750).
25 The Medical Center Defendants rely on decisions that define a favorable termination as one that “involves
the merits and indicates the accused's innocence.” MacFawn v. Kresler, 88 N.Y.2d 859, 644 N.Y.S.2d 486,
666 N.E.2d 1359, 1360 (1996); (see Dkt. 55 at 6–7) (citing Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995);
Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980), Fulton v. Robinson, 289 F.3d 188, 196 (2d
Cir. 2002); Hershey v. Goldstein, 938 F.Supp.2d 491, 518 (S.D.N.Y. 2013)). However, the Court does not
find this authority persuasive in light of Smith–Hunter, which implicitly rejected this position in favor of the
principle that “a criminal proceeding is terminated favorably to the accused when ‘there can be no further
proceeding upon the complaint or indictment, and no further prosecution of the alleged offense’ ”, recognizing
only a few exceptions to this rule. Smith–Hunter, 95 N.Y.2d at 195–96, 712 N.Y.S.2d 438, 734 N.E.2d 750
(noting as exceptions termination “inconsistent with innocence”; charges withdrawn pursuant to a voluntary
compromise with the accused; and charges being dismissed out of mercy requested or accepted by the
accused (citing Robbins v. Robbins, 133 N.Y. 597, 599, 30 N.E. 977 (1892))). Notably, Smith–Hunter also
distinguished MacFawn on the basis that it involved a dismissal without prejudice, which also distinguishes
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it from the instant case. Id. at 197, 712 N.Y.S.2d 438, 734 N.E.2d 750 (noting that MacFawn was “[f]ar from
controlling in the case at hand” and “simply held that a plaintiff in a malicious prosecution action must show,
as a threshold matter, that the criminal proceeding was finally terminated.”) (emphasis in original).
Though the Court did not factor this into its decision, at the status conference in which the charges against
Plaintiff were dismissed, Plaintiff explicitly refused any conditions, i.e., any compromise (Dkt. 63–6, Ex. F at
3:22–24; see Smith–Hunter, 95 N.Y.2d at 196, 712 N.Y.S.2d 438, 734 N.E.2d 750 (“noting that an action
terminated by settlement cannot sustain a malicious prosecution claim”).)
26 Even if the Court were to consider the City Defendants' Exhibit B, the dismissal hearing transcript, and draws
all inferences in favor of Plaintiff—as it must at this stage—the transcript indicates that dismissal of the criminal
prosecution was with prejudice. (Ex. F, Dkt. 63–6 at 7:8–9.) While the transcript also includes the prosecution's
explanation for why it is dismissing the charges (see Ex. F, Dkt. 63–6 at 5:29–6:18), it is inappropriate for
the Court to interpret articulated reasons given by the prosecutor as the real motivation for the government's
dismissal of the case. See Liang v. City of New York, 2013 WL 5366394, at *5; see also Nielsen, 746 F.3d
at 62 (noting that the court must draw all reasonable inferences in favor of the plaintiff).
27 The Complaint also alleges that “Dr. Kupferman testified to the forensic interrogation she conducted with
Ying Li ... [and] deliberately testif[ied] falsely under oath that ‘If you read any book, it is a classical case of
shaken baby syndrome.’ Defendant Kupferman knew that these statements were false and misleading and
contrary to all valid and reliable medical evidence.” (Am. Compl. ¶ 160.)
28 In her Amended Complaint, Plaintiff alleges that despite Annie's “lab results ... consistent with metabolic bone
disease[, an alternative explanation for Annie's injuries,] Dr. Kupferman made no effort to seek a diagnosis
other than SBS.” (Am. Compl. ¶ 122.) Plaintiff also alleges that Dr. Landi falsely “swore under oath in the
criminal complaint” as to Annie's death and that her opinion was “largely based on the evidence” presented by
Dr. Kupferman. (Id. ¶¶ 150–52.) From this, the Court can reasonably infer that Dr. Kupferman also provided
false information that eventually was relayed to the prosecutor.
29 Paragraph 215 states, “Defendants, acting in concert and within the scope of their employment and authority,
employed regularly issued process against plaintiff compelling the performance or forbearance of prescribed
acts. The purpose of activating the process was intent to harm plaintiff without economic or social excuse or
justification, and the defendants were seeking a collateral advantage or corresponding detriment to plaintiff
which was outside the legitimate ends of the process. Such collateral objectives included, but were not limited
to, using plaintiff as a bargaining chip to pressure Hang Bin Li to plead guilty and covering up defendants'
illegal actions in knowingly arresting plaintiff without any legal basis, justification, or probable cause.”
30 While Plaintiff may face a steep challenge in ultimately proving that the Medical Center Defendants colluded
with the City Defendants to the extent of sharing the alleged goal of using Plaintiff as leverage against her
husband, at this stage, the Court finds that she has sufficiently alleged facts to support a plausible inference
of such a coordinated effort.
31 The Court discusses infra Defendants' claims of immunity with respect to all claims. In sum, the Courts finds
that: (1) ADA Bishop is entitled to absolute immunity from all claims; (2) the Officer Defendants and Dr.
Landi are not entitled to qualified immunity at this juncture; and (3) Dr. Kupferman is not entitled to statutory
immunity. (See infra at Section XIII.)
32 Plaintiff withdrew her malicious abuse of process claim against the Medical Center Defendants. (See 1/7/2016
Minute Entry.)
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33 See, e.g., Pinter v. City of New York, 976 F.Supp.2d 539, 569 (S.D.N.Y. 2013) (finding that there was
a collateral objective for plaintiff's arrest where the defendant “us[ed] prostitution arrests for leverage in
negotiations over nuisance abatement, without any apparent interest in conviction”).
34 Although Plaintiff has not made this exact argument, the Court has the obligation at this stage to draw all
reasonable inferences in Plaintiff's favor. See Nielsen, 746 F.3d at 62.
35 The Court also rules that, for the time being, her abuse of process claim can proceed on the basis of both
collateral objectives, even though, as previously discussed, a claim based solely on the “cover-up” objective
would have been time-barred. See Bacchus v. New York City Bd. of Ed., 137 F.Supp.3d 214 (E.D.N.Y.
2015) (finding that “better course” was not to dismiss claim based on same evidence as surviving claims);
Thibodeaux v. Travco Ins. Co., 13–CV–5599, 2014 WL 354656, at *2 (E.D.N.Y. Jan. 31, 2014) (“If one of
a number of integrally related causes of action have to be tried, it makes little sense to grant a motion to
dismiss as to one or more of them, as it may prove necessary to hold yet another trial in the event that it is
determined on appeal that the motion to dismiss was improperly granted.”).
However, to the extent that Plaintiff argues in her MOL (Dkt. 61) that another “collateral motive ... [for Plaintiff's
arrest was to obtain Hang Bin's confession because] such confessions are very valuable to promoting the
City's agenda in promoting the truth of SBS science,” Plaintiff will not be permitted to pursue this as part of
her abuse of process claim, since there is nothing remotely related to this allegation in the Complaint, nor
does Plaintiff cite to any paragraph in the Complaint to support this newly proffered objective.
36 By contrast, as discussed infra, the involvement of these detectives in the investigation is sufficient to state
a claim against them for Section 1983 conspiracy, unreasonably prolonged detention, and violating some of
Plaintiff's substantive due process rights.
37 In addition to the deficiencies the Court discusses here, the City Defendants also argue that the failure to
intervene claim is time-barred. (Dkt. 59 at 23.) Specifically, they argue that “because the alleged constitutional
violations were being committed ‘by other police officers,’ and such conduct necessarily would have taken
place during or before plaintiff's arrest in March 2008, the three-year statute of limitations has run.” (Id.) The
Court finds this argument unclear and unpersuasive. Plaintiff's Complaint alleges constitutional violations that
are not limited to false arrest, and it is conceivable that her constitutional rights were violated after March 2008
since she was in prison—awaiting trial—for over four years. (Am. Compl. ¶¶ 234, 236.) In any event, because
Plaintiff's claim fails to include sufficient factual allegations, the Court cannot even determine whether the
statute of limitations has expired as to virtually all of the Defendants. The Court also finds Plaintiff's response
to the City Defendants' argument deficient at best. Plaintiff simply recites, in a footnote, the law that the statute
of limitations for Section 1983 actions arising in New York is three years and that New York law determines
the tolling of the limitations period while federal law determines when the claim accrues. (Dkt. 61 at 21 n.35.)
This recitation of boilerplate law is in no way responsive or illuminating on the issue of whether Plaintiff's
failure to intervene claim is time barred.
38 Plaintiff alleges that “[e]ach individual defendant had an affirmative duty to intervene on behalf of plaintiff,
whose constitutional rights were being violated in that defendant's presence by other police officers, but failed
to intervene to prevent the unlawful conduct, despite having had a realistic opportunity to do so, in violation of
plaintiff's right under the First, Fourth, and Fourteenth Amendments to the United States Constitution.” (Am.
Compl. ¶ 219.)
39 Indeed, Plaintiff names every Defendant in all but her Monell and malicious abuse of process claims. (See
Compl; see also Dkt. 61 at 21 (“Defendant Officers collectively caused Plaintiff's constitutional violations
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and each of those officers also can be found liable for failing to intervene to prevent his fellow officers from
committing those acts.” (citation omitted)).)
40 Given the deficient pleading of Plaintiff's failure to intervene claim, the Court need not address the Medical
Center Defendants' argument that, as a non-governmental hospital and a medical expert who provided
testimony and information to the prosecuting authority, they had no affirmative duty to intervene to prevent
the alleged false arrest, malicious prosecution, or abuse of process. (See Dkt. 55 at 10.)
41 Given that the parties have not, at this stage, delved into the issue of whether the Medical Center Defendants
can be considered “joint actors” that can be held liable under Section 1983, the Court's finding that Plaintiff
has adequately pled her conspiracy claim is limited to whether Plaintiff's claim overcomes a 12(b)(6) motion.
42 Though making this argument, Plaintiff does not, in fact, provide adequate citation to the Amended Complaint.
For example, Plaintiff argues in her MOL that “Dr. Kupferman did not begin her extensive investigation notes
imbedded in the medical records until October 25, 2007, two days after police were first notified of possible
child abuse.” (Dkt. 66 at 16.) However, she fails to provide relevant citation to the Amended Complaint to
support this statement.
43 Furthermore, to the extent that Dr. Kupferman is alleged to have acted as an agent of FHMC, the hospital
is also liable for the Section 1983 conspiracy. See Niemann v. Whalen, 911 F.Supp. 656, 664 (S.D.N.Y.
1996) (where bank employees who allegedly violated plaintiff's constitutional rights were acting as agents of
defendant bank, plaintiff could bring § 1983 action against bank).
44 While the City Defendants cite to a string of cases in support of their argument that Plaintiff has failed to
adequately plead a claim of unreasonable detention (see Dkt. 59 at 26), the courts in those cases dismissed
the claim either at the stage of summary judgment or after a trial was conducted. See Nzegwu v. Friedman,
No. 10-CV-02994, 2014 WL 1311428 (E.D.N.Y. Mar. 31, 2014); Harewood v. Braithwaite, 64 F.Supp.3d 384
(E.D.N.Y. 2014); Thompson v. City of New York, 603 F.Supp.2d 650 (S.D.N.Y. 2009); Jackson v. City of New
York, 29 F.Supp.3d 161 (E.D.N.Y. 2014). Citations to such cases are not persuasive.
45 “The Supreme Court has never definitively held whether Brady is based on substantive or procedural due
process. Nevertheless, it seems clear that it is a procedural due process aspect of the criminal defendant's
right to a fair trial.” Martin A. Schwartz, The Supreme Court's Unfortunate Narrowing of the Section 1983
Remedy for Brady Violations, Champion, May 2013 at 58, 59. As for Plaintiff's fabrication of evidence claim,
it is unclear whether Plaintiff characterizes it as a procedural or substantive due process claim. (See Dkt.
66 at 20 (“Dr. Kupferman's actions [of fabricating evidence, inter alia,] deprived Plaintiff of the right to a fair
trial under the doctrine of procedural due process.” (emphasis added)); but see Dkt. 61 at 24–25 (first laying
out the law of substantive due process and then immediately following it with a discussion of Plaintiff's claim
of fabrication of evidence, among other claims).) Regardless, courts in this Circuit have characterized the
right to be protected against the deprivation of liberty based on fabricated evidence as a procedural due
process issue. See Coffey, 221 F.3d at 348–49 (the use of fabricated evidence amounts to a deprivation of
liberty without due process); see also Jean–Laurent v. Bowman, No. 12-cv-2954, 2014 WL 4662221, at *12
(E.D.N.Y. Jul. 7, 2014); Zachary v. City of Newburgh, 13–cv–5737, 2014 WL 1508705, at *4–5 (S.D.N.Y. Apr.
1, 2014) (dismissing plaintiff's substantive due process claim but finding that plaintiff alleged a procedural
due process claim based on fabricated evidence); Maldonado v. City of New York, No. 11-cv-3514, 2014
WL 787814, at *12 (S.D.N.Y. Feb. 26, 2014) (dismissing plaintiff's substantive due process claim but noting
that plaintiff's fabrication of evidence claims may proceed “via the Fourth Amendment and the procedural
component of the Fourteenth Amendment's Due Process Clause”); Pinter v. City of New York, 976 F.Supp.2d
539, 576 (S.D.N.Y. 2013) (recognizing a separate “fabrication-based due process claim”).
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46 Plaintiff's due process claim under Brady is distinct from her malicious prosecution claim. See Fappiano, 640
Fed.Appx. at 120–21 (differentiating plaintiff's malicious prosecution claim from his “fair trial” claim stemming
from defendants alleged Brady violation); Alexander v. McKinney, 692 F.3d 553, 556–57 (7th Cir. 2012)
(listing the elements of a malicious prosecution claim and the elements of a due process claim under Brady,
and identifying lack of probable cause as a requirement only of the former).
47 Specifically, Plaintiff alleges that Defendants “created and fabricated evidence to create the appearance of
probable cause to believe that plaintiff had abused her daughter[,] ... [and] developed and cultivated witnesses
to testify falsely....” (Am. Compl. ¶ 233.)
48 As previously discussed, because the Amended Complaint does not allege direct involvement by all
Defendants in the investigation of Plaintiff's case, these group pleadings are insufficient in themselves to
state a fabrication of evidence claim as to those City Defendants as to whom there are no specific allegations
of involvement.
49 The Medical Center Defendants also assert that even assuming that Dr. Kupferman diagnosed Annie with
SBS and that she failed to consider alternative causes for Annie's death, Dr. Kupferman cannot be liable for
violating Plaintiff's right to a fair trial because Plaintiff's indictment was based on her failure to seek timely
medical attention and not based on Dr. Kupferman's opinions on the cause of Annie's death. (Dkt. 56 at 10.)
The Court this argument unpersuasive as it is plausible that Dr. Kupferman's conclusion that Annie died of
SBS proximately caused Plaintiff's indictment for failure to seek medical attention sooner.
50 This conclusion is not inconsistent with the Court's finding that the fact that Plaintiff might not have known
until long after her arrest that there was evidence that could have supported her claim of innocence—such
as Dr. Kupferman's contrary conclusion about the preventability of Annie's death—did not warrant equitable
tolling. See supra at Section IV.B. In analyzing specifically the accrual of a fabrication of evidence claim,
when Plaintiff learned of the alleged fabricated evidence is the triggering date, but not so for a claim of false
arrest or malicious prosecution.
51 The City Defendants interpret Paragraph 235 of the Amended Complaint as stating a claim of professional
malpractice, and argues that “such a claim is not cognizable under § 1983.” (Dkt. 59 at 28–29; id. at 26 (“For
good measure, [Plaintiff] appears to include a professional malpractice claim of sorts against defendants
Landi, Kupferman and FHMC....”).) This is a misunderstanding of Plaintiff's allegation. A more suitable reading
of Plaintiff's allegation in Paragraph 235 would be that it is touching on the “professional judgment” standard
that is discussed in the context of substantive due process claims. The Supreme Court has articulated this
“professional judgment” standard in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28
(1982). The Supreme Court held in Youngberg that State officials are liable for treatment decisions concerning
involuntarily committed mental health patients only if the officials' decisions were “such a substantial departure
from accepted professional judgment, practice, or standards as to demonstrate that the person responsible
actually did not base the decision on such a judgment.” Id. at 323, 102 S.Ct. 2452 (citation and quotation
marks omitted).
52 In her MOL, Plaintiff argues that, “Plaintiff properly pleads that [the Medical Center] Defendants failed
to exhaust all possibilities before rendering an SBS diagnosis and adopted an improper burden shifting
presumption that presumes subdural hemorrhaging is caused by abuse. (FAC ¶¶ 122, 160, 208, 235, 257)....
Kupferman's actions shocked the conscious [sic] because Plaintiff had the right to liberty protected under the
Fifth Amendment and Kupferman and FHMC acted ‘so outrageous [sic], that it may fairly be said to shock
the contemporary conscience.’ ” (Dkt. 66 at 20–21 (citation omitted).) Plaintiff cites to one Middle District of
Pennsylvania case, Isbell v. Bellino, 983 F.Supp.2d 492 (M.D.P.A. 2012), but does not discuss the case.
Setting aside the fact that this case is not Second Circuit law, Isbell does not even support a finding that
the protection of substantive due process creates an obligation for a government official to follow alternative
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investigatory paths. Indeed, the court in Isbell concluded that where the plaintiff went “to the emergency room
with an infant suffering from subdural hematomas, retinal hemorrhaging, reinoschisis, and rib fractures ...
[and] the injuries were later revealed to have been caused by a Vitamin D deficiency and congenital rickets,”
the defendant's child abuse diagnosis did not shock the conscience. Id. at 500. The Isbell court also explained
that “mere negligence or deliberate indifference on the part of the Defendants [under Third Circuit law was]
insufficient to support a substantive due process claim.” Id. at 499–500.
53 The Court is not persuaded by Plaintiff's reliance on Russo v. City of Hartford, 184 F.Supp.2d 169 (D. Conn.
2002) in attempting to distinguish her substantive due process failure-to-investigate claim from her Fourth
Amendment claims. In Russo, the court stated, “[W]hile claims arising from a plaintiff's arrest and prosecution
would fall within the scope of the Fourth Amendment, that Amendment would not cover a cause of action for
government abuse of process in the investigation or pursuit of a suspect.” Id. at 184. However, the plaintiff
in Russo specifically argued that “allegations of a conspiracy to discredit him, jeering after his arrest, and
continued harassment state a claim for substantive due process.” Id. It also appears that the plaintiff in
Russo alleged injury besides his arrest and prosecution that was caused by the defendant's violation of his
substantive due process rights. Id. (“Supporting his substantive due process cause of action, Russo claims
that the [defendants] conspired to ruin Russo's credibility....”). In contrast, the sole injury Plaintiff alleges
here relating to her substantive due process violation claim is deprivation of liberty, i.e., her arrest and
incarceration. (See Am. Compl. ¶ 238.)
54 The overlap between Plaintiff's substantive due process failure to investigate and her Fourth Amendment
claims is further evidenced by the Due Process section of the Amended Complaint, which begins with a
paragraph stating, “By the conduct and actions described above, defendants ... violat[ed] rights secured
to plaintiff by the Constitution of the United States ... including, but not limited to, Plaintiff's Fourth and
Fourteenth Amendment rights.” (Am. Compl. ¶¶ 231, 238) and closes with, inter alia, a paragraph that
states, “Defendants' conduct precipitated and caused the sequence of events that ultimately resulted in the
deprivation of plaintiff's liberty....” (Am. Compl. ¶ 238.)
55 Whether the alleged failure to investigate gives rise to a constitutional claim is far from clear. Courts have
explained that failure to pursue a particular investigative path does not give rise to an independent due
process claim apart from claims of false arrest, malicious prosecution, or violation of right to a fair trial. See,
e.g., Blake v. Race, 487 F.Supp.2d 187, 212 n.18 (E.D.N.Y. 2007) (rejecting an independent due process
claim of failure to investigate and finding the allegations of failure to investigate should be regarded as part
of plaintiff's false arrest and malicious prosecution claims); Stokes v. City of New York, No. 5-CV-0007,
2007 WL 1300983, at *6 (E.D.N.Y. May 3, 2007) (“[I]t is well-settled that there is no independent claim for
a police officer's purported failure to investigate; rather, such allegations are considered, to the extent they
are relevant, within the framework of claims for false arrest, false imprisonment, or malicious prosecution.”);
Newton v. City of New York, 566 F.Supp.2d 256, 278 (S.D.N.Y. 2008) (“[T]here is no constitutional right to
an adequate investigation. Accepting [plaintiff's] allegations as true, his rights were violated as a result of
the malicious prosecution, not the failure to investigate.”); McCaffrey v. City of New York, No. 11-cv-1636,
2013 WL 494025, at *5 (S.D.N.Y. Feb. 7, 2013) (“[A] ‘failure to investigate’ is not independently cognizable
as a stand-alone claim.”).
56 Specifically, Plaintiff alleges that every Defendant violated her due process right during her detention by
(1) refusing to tell Plaintiff where her daughter's body was buried, (2) refusing the usual and customary
medical services, including OB–GYN care, (3) forcing Plaintiff to give birth to her second daughter while
handcuffed and shackled, (4) refusing Plaintiff the opportunity to breastfeed or bond with her infant daughter
after childbirth, and (5) taking away Plaintiff's infant daughter two-and-a-half days after delivery. (Am. Compl.
¶ 236.) While Plaintiff argues that these deprivations constitute both a substantive and procedural due process
violation (Am. Compl. ¶ 237), the Court need not decide whether these claims allege substantive or procedural
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due process violations because they must be dismissed due to the lack of connection to any Defendant in
this case.
57 To the extent Plaintiff has a viable claim based on the conditions of her confinement in a State correctional
facility, that claim should have been brought against the State, the correctional facility, or the prison officials,
not the prosecutor or police officers who handled Plaintiff's criminal case. See, e.g., Women Prisoners of
District of Columbia Dep't of Corrections v. District of Columbia, 877 F.Supp. 634 (D.D.C. 1994), modified in
part on other grounds, 899 F.Supp. 659 (D.D.C. 1995), vacated in part and remanded on other grounds, 93
F.3d 910 (D.C. Cir. 1996); Nelson v. Correctional Medical Services, 583 F.3d 522 (8th Cir. 2009) (en banc);
Brawley v. Washington, 712 F.Supp.2d 1208 (W.D. Wash. 2010); Zaborowski v. Dart, No. 08–cv–6946, 2011
WL 6660999 (N.D. Ill. Dec. 20, 2011); Villegas v. Metropolitan Govt. of Nashville, 709 F.3d 563 (6th Cir. 2013).
58 It appears that Plaintiff is also arguing that the City's failure to train its employees as to SBS is consistent with
the custom of zealously promoting a diagnosis of SBS. (See Dkt. 61 at 28 (“Instead of training its Detectives on
diligently and cautiously investigating SBS cases to avoid constitutional violations[,] ... the District Attorney's
Office, in conjunction with the Office for the Chief Medical Examiner puts on yearly conferences advocating
for the continued finding of SBS.”).)
59 The City also denies Plaintiff's allegation that the police abdicated their investigatory obligations to medical
professionals when arresting Plaintiff, and her allegation that Defendants were deliberately indifferent. (Id.
at 31.)
60 The Amended Complaint includes many more allegations in support of Plaintiff's Monell claim that are
generally conclusory, insufficient, or irrelevant. For example, she alleges that, “[t]he foregoing customs,
policies, practices ... include, but are not limited to, making arrests without probable cause, initiating and
continuing prosecutions without probable cause, and committing perjury.” (Am. Compl. ¶ 243). She also
alleges that the City failed to properly instruct Defendants on the “proper and prudent use of force” (id. ¶ 248).
61 In Rojas v. Alexander's Dept. Store, Inc., 924 F.2d 406 (2d Cir. 1990), the Second Circuit explicitly extended
Monell to Section 1983 suits against private entities. Id. at 408–09 (“Private employers are not liable under
§ 1983 for the constitutional torts of their employees, unless the plaintiff proves that ‘action pursuant to
official ... policy of some nature caused a constitutional tort.’ Although Monell dealt with municipal employers,
its rationale has been extended to private businesses.” (quoting Monell )).
62 FHMC argues that Plaintiff's Monell claim is deficient because: (1) Plaintiff fails to allege the existence of a
policy or custom; (2) Plaintiff puts forth an implausible allegation that “a private hospital dedicated to the well-
being of its patients had a policy and procedure for its staff ‘to reach non-medical conclusions’ ‘in order to see
those accused of SBS [ ] arrested, prosecuted, and convicted, despite the lack of any evidence connecting
them with any crime whatsoever’ ”; (3) Plaintiff fails to sufficiently allege a Monell claim based upon failure
to train; (4) co-Defendants' actions were an intervening cause; (5) “by requesting discovery to determine
whether FHMC ‘even had a policy in place’ for diagnosing and investigating child abuse and SBS cases,”
Plaintiff has acknowledged that she has no basis to support a Monell claim against the hospital; (6) Plaintiff
has not alleged facts that Dr. Kupferman was a policymaker; and (7) Plaintiff has not alleged well-settled
“custom or usage” to imply the acquiescence of policymaking officials at FHMC because she has not alleged
that anyone other than Dr. Kupferman at FHMC engaged in allegedly unconstitutional actions. (See Dkt.
56 at 12–15.) The Court explicitly addresses some of these arguments, but has considered FHMC's other
arguments and deemed them meritless or irrelevant at this stage.
63 Although Plaintiff argues that Dr. Kupferman was a policymaker with final authority because she was a Child
Abuse Specialist and “was the Director of Continuity Clinics” at FHMC with “responsibility to overview patient
care and training of residents” (Dkt. 66 at 26), none of this is alleged in the Complaint. It is thus improper
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Ying Li v. City of New York, 246 F.Supp.3d 578 (2017)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 61
for the Court to consider such factual allegations in deciding the motion to dismiss. See Green v. City of
Mount Vernon, 96 F.Supp.3d 263 (S.D.N.Y. 2015) (collecting cases in which the court declines to consider
additional facts set forth in plaintiff's opposition papers that are not in the complaint).
64 FHMC asserts that because Plaintiff only alleges facts as to Dr. Kupferman's unconstitutional actions
pertaining to this particular case, there could be no policy or custom inferred on the part of FHMC. (Dkt.
56 at 13.) However, at this stage, given Plaintiff's allegation that Dr. Kupferman, on multiple occasions,
overzealously diagnosed SBS and ignored contradictory evidence, the Court finds that the claim survives the
Medical Center Defendants' 12(b)(6) motion.
65 Notably, Plaintiff does not even acknowledge Rojas and instead “respectfully requests this Court to line with
the 7th Circuit [ ] and find FHC liable under the theory of respondeat superior.” (Dkt. 66 at 22.)
66 Furthermore, the Court does not find that Plaintiff's allegation that ADA Bishop “encouraged and, in effect,
deputized Drs. LANDI and KUPFERMAN to forensically and factually investigate the case against the
[Lis]” (Am. Compl. ¶ 170) creates a plausible inference that ADA Bishop acted in an investigative or
administrative capacity. Plaintiff provides no factual or legal support for her “deputization” theory. This
allegation is simply too conclusory to pierce the grant of absolute immunity here.
67 Although the City Defendants do not specify which claims they direct their qualified immunity defense against,
to the extent they assert the defense based on the existence of probable cause, the defense goes to Plaintiff's
claims of false arrest and malicious prosecution. (See Dkt. 59 at 12–27.)
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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