Lalonde et al v. City of Ogdensburg et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TIMOTHY LALONDE AND THERESA LALONDE,
Plaintiffs,
-against- 	8:22-CV-00164 (LEK/DJS)
CITY OF OGDENSBURG, et al.,
Defendants.
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
On February 18, 2022, Plaintiffs Timothy Lalonde and Theresa Lalonde commenced this
action by filing a complaint asserting claims under 42 U.S.C. §§ 1983, 1985, and 1986, the
Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), as well as New York state
law. See generally Dkt. No. 1 (“Complaint”). The Complaint named as Defendants the City of
Ogendsburg, Saint Lawrence County, the City of Ogdesnburg Police Department, the Saint
Lawrence County Sheriffs’ Department, Ogdensburg Police Department Chief Robert Wescott,
the County of Saint Lawrence Sheriff Brooks Bigwarfe, Sheriff Matthew Merria, and Police
Officers Charles Shaver, Danielle Pryce, Joshua Sirles, and Scott Wilson. Id. at 1.
On February 4, 2025, Defendants Saint Lawrence County Sheriffs Department, Brooks
Bigwarfe and Matthew Merria (“County Defendants and Merria”) filed a motion for judgment on
the pleadings. Dkt. No. 73 (“Motion”). On September 29, 2025, the Court issued a
Memorandum-Decision and Order, granting County Defendants and Merria’s Motion in its
entirety, dismissing Plaintiffs’ state law claims against Deputy Merria and Section 1986 claims
against the County Defendants as untimely. Dkt. No. 117 (“MDO”). On October 13, 2025,
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Plaintiffs filed a motion for reconsideration. Dkt. No. 121. (“Motion for Reconsideration”). On
March 31, 2026, the Court ruled against the Motion for Reconsideration. Dkt. No. 124
(“Reconsideration”).
On May 29, 2025, Defendant Matthew Merria filed a Motion for Summary Judgment.
Dkt. No. 90 (“Merria MSJ”). Also on May 29, 2025, County Defendants filed a Motion for
Summary Judgment. Dkt. No. 92 (“County MSJ”). That same day, the City of Ogdensburg, the
City of Ogdensburg Police Department, Danielle Pryce, Charles Shaver, Joshua Sirles, Robert
Wescott, and Scott Wilson (City Defendants) filed a Motion for Summary Judgment. Dkt. No. 94
(“City MSJ”). On July 28, 2025, Plaintiffs filed a response to County Defendants, Dkt. No. 103
(“Resp. to County”), to Defendant Merria, Dkt. No. 104 (“Resp. to Merria”), and City
Defendants, Dkt. No. 105 (“Resp. to City”). On September 26, 2025, County Defendants, Dkt.
No. 114 (“County Reply), and Defendant Merria, Dkt. No. 113 (“Merria Reply”), filed replies.
On September 29, 2025, City Defendants also filed a reply. Dkt. No. 118 (“City Reply”).
II. 	BACKGROUND
The factual summary of the relevant events are taken from the parties’ statement of
material facts and the attached exhibits.1 Disputes of material fact in the record are noted.
1 City Defendants move to strike Plaintiffs’ Statement of Material Facts. Dkt. No. 118 at
2 fn. 1 (“City Resp. Pl. SMF”). County Defendants and Defendant Merria, similarly object to the
Plaintiffs’ Statement of Material Facts. Dkt. No. 114 1–2 (“County Resp. Pl. SMF”); Dkt. No.
113 at 1–2 (“Merria Resp. Pl. SMF”). Plaintiffs, conversely, move to strike City Defendants’
Statement of Material Fact. Dkt. No. 105-2 at 1–2 (“Pl. Resp. City SMF”) at 1–2.
Defendants are correct that Plaintiffs’ document is not “short and concise” and is not
limited to “assertions that are ‘in dispute.’” County Resp. Pl. SMF at 1–2; see Dkt. No. 103-1
(“Pl. SMF”). Conversely, Plaintiffs are correct that City’s Statement of Material Facts is not
“short and concise,” either. Pl. Resp. City SMF at at 1–2; see Dkt. No. 94-1 (“City SMF”).
Given the factual complexities of this litigation, and the helpfulness of these documents
in sorting through the competing factual allegations of what transpired the night of the incident,
the Court exercises its discretion in striking neither document.
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Following an attack by a necrotizing fasciitis and corresponding surgery, Mr. Timothy
Lalonde became blind, with “exceedingly diminished us of his right side, right arm, and
shoulder.” Pl. SMF ¶¶1–9. Mr. Lalonde had to use his left arm for basic tasks. Id. ¶¶12–18.
The night of February 29, 2020, upon hearing complaints from his daughter, Mr. Lalonde
confronted Mr. Randall Outlaw, her daughter’s then boyfriend. Id. ¶¶ 21–23, 44. Mr. Lalonde
“express[ed] his concerns regarding Mr. Outlaw’s theft of money and shooting firearms on the
property [owned by Mr. Lalonde], as well as on the street in front of the home.” Id. ¶44. Mr.
Lalonde and Mr. Outlaw argued loudly, with each of them saying “fuck you” at the end of the
argument. Id. ¶48, 53.
At that point, now past midnight, Officer Charles Shaver arrived on scene. See id. ¶54.
Much of what occurred after this point is disputed. First, Plaintiffs claim that “Mr. Lalonde was
wearing dark sunglasses and holding a white cane in his hand.” Id. ¶57; Defendants dispute that
Mr. Lalonde had his sunglasses and cane. City Resp. Pl. SMF” ¶57; County Resp. Pl. SMF ¶57.
Mr. Shaver introduced himself to Mr. Lalonde as a police officer. Pl. SMF ¶60. Second,
Plaintiffs claim that “[o]nce Officer Shaver identified himself, Mr. Lalonde stopped arguing with
Mr. Outlaw and started to return home, using his cane. He said nothing to Officer Shaver. Mr.
Lalonde did not yell at anyone after Officer Shaver identified himself.” Id. ¶70. Defendants
dispute this, arguing that Mr. Lalonde yelled at Mr. Shaver and was generally confrontational.
County Resp. Pl. SMF ¶70; City Resp. Pl. SMF ¶70 (“Mr. Lalonde continued to yell, scream and
use profanity throughout his encounter with the officers present on scene.”).
Subsequently, three additional officers—Pryce, Sirles, and Deput Merria—arrived on
scene. Pl. SMF ¶64. Defendant Pryce told Mr. Lalonde “let me see your hands, let me see your
hands.” Pl. SMF ¶71. Plaintiffs claim that Defendant Pryce was approaching him, and that as she
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did so, “Mr. Lalonde turned his body in her direction and was not saying anything. Pl. SMF ¶71–
72. Defendants dispute this, claiming that Mr. Lalonde was continuing to yell, and that “before
Officer Pryce grabbed Mr. Lalonde to arrest him, he clenched his fists and said ‘Fuck you.’” City
Resp. Pl. SMF ¶72; see also County Resp. Pl. SMF ¶72. Plaintiffs claim that in response to
Defendant Pryce’s command, “Mr. Lalonde, with his blind cane in hand . . . raised his arms
slightly.” Pl. SMF ¶ 77. Defendants dispute that Mr. Lalonde had his cane and that he raised his
arms, and alternatively suggest that Mr. Lalonde “flailed his arm at [Defendant Pryce] and
pushed [her] arm away.” County Resp. Pl. SMF ¶77 (quoting Dkt. 92-38 at 95 (“Pryce
Deposition”)); see also City Resp. Pl. SMF ¶77.
Plaintiffs claim that the three officers then tackled Mr. Lalonde, bringing him to the
ground, with a neighbor hearing the wind getting knocked out of him. Pl. SMF ¶78. Defendants
dispute this, claiming that the officers and Mr. Lalonde “fell to the ground,” rather than being
tackled. County Resp. Pl. SMF ¶78 (quoting Pryce Dep. at 109); see also City Resp. Pl. SMF
¶78.
The officers were then on top of Mr. Lalonde. See City SMF ¶ ¶ 286, 294–300. Mr.
Lalonde’s left arm was under his body, and in Plaintiffs’ account the officers struggled to get it
out from under him. Pl. SMF ¶83. In Defendants’ telling, Mr. Lalonde was resisting giving his
arm to be handcuffed. City SMF ¶401. Plaintiff claims that “the officers continued to yank on
Mr. Lalonde’s left arm, doing so with such force that it tore his left rotator cuff [and] dislocated
his elbow out of its socket. Pl. SMF ¶87. Defendants dispute this characterization but accept that
these injuries occurred to Mr. Lalonde. See County Resp. PL. SMF ¶87. Defendants also claim
that Mr. Lalonde tried to grab on to the officers, particularly Defendant Merria’s vest. City SMF
at ¶¶ 308, 309, 543. By contrast, Plaintiffs claim that “[a]t no point did Mr. Lalonde resist or
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attempt to grab the officers.” Pl. SMF ¶88. Officer Sirles used his taser on Mr. Lalonde’s leg,
purportedly “[b]ecause . . . the other officers were having difficulty gaining control of Timothy’s
arms.” City SMF ¶¶413–14.
While Mr. Lalonde was lying on the ground, Defendant Pryce’s knee came into contact
with his head. Pl. SMF ¶90. There is a dispute over how forceful this contact was. Compare Pl.
SMF ¶90 (“OPD officer Pryce forcefully drove her knee into Mr. Lalonde’s head and ear”) with
City Resp. Pl. SMF ¶90; Cnty. Resp. Pl. SMF ¶90 (quoting Defendant Pryce saying she did not
“strike [Mr. Lalonde] in the head with [her] knee.”). Mr. Lalonde’s ear bled, and he has suffered
hearing loss following the incident. See Pl. SMF ¶90.
After being handcuffed, Mr. Lalonde claims to have requested medical care, which
Defendants dispute. See Pl. SMF ¶97; City Resp. Pl. SMF ¶97 (“Mr. Lalonde did not request
medical attention and did not request an ambulance until he arrived at the OPD station.”)
(citations omitted); County Resp. Pl. SMF ¶97. If there was a request for medical care, it was not
immediately acceded to. See Pl. SMF ¶97. Mr. Lalonde was then placed in the police car; it is
disputed how he entered the vehicle. Plaintiffs claim “after learning that Mr. Lalonde could not
seat himself in the police car because of his disability, OPD Officer Shaver and Deputy Merria
forcefully threw Mr. Lalonde headfirst into the vehicle without concern for Mr. Lalonde’s safety,
and closed the back passenger door onto Mr. Lalonde’s head.” Pl. SMF ¶98. By contrast,
Defendants claim that officers “escorted Mr. Lalonde to an OPD patrol vehicle and placed him in
the back seat on the driver’s side. County SMF ¶25. While this was occurring, Defendant
Wescott arrived on scene. Pl. SMF ¶100.
Mr. Lalonde was transported to the Ogdensburg Police Department by Defendant Shaver.
Pl. SMF ¶102; County SMF .¶27. It is disputed how Mr. Lalonde was handcuffed while in the
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police car. Plaintiffs claim that “the officers handcuffed Mr. Lalonde’s previously disabled right
arm and wrist to the ceiling of the patrol car, as Mr. Lalonde’s disability entailed the loss of
muscles in his stomach and back prevented him from sitting upright.” Pl. SMF ¶102. Defendants
dispute this, claiming “Deputy Merria did not handcuff one of Mr. Lalonde’s arms to the ceiling
or any other part of the patrol vehicle.” County SMF ¶26. As City Defendants explain, “it was a
physical impossibility to handcuff Mr. Lalonde’s right arm and wrist to the ceiling of the patrol
car inasmuch as both of Mr. Lalonde’s wrists were handcuffed behind his back.” City Resp. Pl.
SMF ¶ 102. Plaintiff claims that “[w]hile in the police car, Mr. Lalonde reaffirmed his urgent
need to go to the hospital immediately.” Pl. SMF ¶103. City Defendants dispute that Mr. Lalonde
requested medical attention at that time. City Resp. Pl. SMF ¶103.
After arriving at the police station, Mr. Lalonde was removed from the vehicle. There is a
dispute over how he was removed. Plaintiffs claim that Defendants Shaver and Wescott
“attempted to pull Mr. Lalonde out of the patrol car by yanking on his feet while forgetting that
his wrist was handcuffed to the car’s interior.” Pl. SMF ¶104. After removing the handcuff,
Plaintiffs claim that the Defendants then successfully pulled Mr. Lalonde out of the car by his
feet, making him fall on the ground. Pl. SMF ¶105. In Plaintiffs’ account, “The officers then
pulled Mr. Lalonde off the ground by his belt and the back of his pants, with such force that his
jeans ripped and his leather belt tore in half.” Pl. SMF ¶105. City Defendants dispute this, as they
deny that Mr. Lalonde’s wrist was ever handcuffed to the car, and instead claim that “Officer
Shaver and Lieutenant Wescott opened the door and eased Timothy out of the car. City Resp. Pl.
SMF ¶¶104–05.
Mr. Lalonde describes a series of humiliations while in the police station. See Pl. SMF
¶¶106–08. This includes having Mr. Lalonde navigate the station without proper assistance,
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despite Mr. Lalonde’s blindness. Id. City Defendants dispute Mr. Lalonde’s characterization.
City Resp. Pl. SMF ¶¶ 106–08. At one moment an officer “threatened to shoot Mr. Lalonde if he
touched the officer again” after “accidentally brush[ing] up against [him]. Pl. SMF ¶107. City
Defendants do not dispute this. See City Resp. Pl. SMF ¶107.
In the station, the officers asked Mr. Lalonde about a concocted assault on Patterson
Street. Pl. SMF ¶109. Plaintiff interprets this as the officers attempting to blame him for his own
injuries. Id.
As this was ongoing, Mr. Lalonde asked for medical care. Pl. SMF ¶110. Eventually,
“Mr. Lalonde was . . . provided an ambulance and transported to Claxton-Hepburn Hospital in
Ogdensburg.” Pl. SMF ¶111; City Resp. Pl. SMF ¶111. After receiving an x-ray and pain killers
at Claxton-Hepburn, Mr. Lalonde was transferred to Upstate Medical. See Pl. SMF ¶117. “Upon
arriving at Upstate, Mr. Lalonde was informed that he had a torn left rotator cuff, a chipped bone
in his left wrist . . . [and] torn tendons.” Pl. SMF ¶118; see City Resp. Pl. SMF ¶118 (arguing
that Mr. Lalonde mischaracterizes the evidence); Dkt. No. 96-1 at 56–57 (describing what the
Upstate doctors told Mr. Lalonde). The doctors at Upstate attempted unsuccessfully to relocate
Mr. Lalonde’s elbow. See Pl. SMF ¶119.
Mr. Lalonde’s injuries have had a lasting effect on him. See Pl. SMF ¶¶120–24, 149–59.
Mr. Lalonde required two surgeries on his elbow, and will need surgery on his wrist. Pl. SMF
¶¶120–21. His “left wrist is rotationally compromised, with one of the bones detached.” Pl. SMF
¶124. Mr. Lalonde believes he has experienced hearing loss, though the examining doctor could
not definitively attribute that loss to the incident. Pl. SMF ¶¶123–24; City SMF ¶173. As a result
of the incident, Mr. Lalonde is “unable to partake in any of the household chores, maintenance
projects, etc., that he was able and willing to perform before March 1, 2020.” Pl. SMF ¶149. As
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a result, “Mrs. Lalonde is now forced to bear the entirety of the [household tasks].” Pl. SMF
¶151. The injuries and corresponding mental anguish have had significant psychological effects
on Mr. Lalonde. Pl. SMF ¶155–59.
Mr. Lalonde claims that several of the statements made by Defendant officers in relation
to the incident are fabricated. See Pl. SMF ¶¶125, 169. Defendants deny this. City Resp. Pl. SMF
¶125; County Resp. Pl. SMF ¶125.
“Approximately one year after the March 1, 2020 [incident] and after receiving repeated . .
. phone calls from the OPD . . . in April 2021 OPD officer Hollister, upon OPD Chief Wescott’s
direction, arrived . . . at the Lalonde’s home and requested that Mr. Lalonde accompany Officer
Hollister at the OPD stationhouse.” Pl. SMF ¶160; City Resp. Pl. SMF ¶160. In Plaintiffs’
account, Officer Hollister threatened Mr. Lalonde with arrest, if he refused to come to the
station. See Pl. SMF ¶162. City Defendants deny this, claiming that “Officer Hollister did not tell
Timothy that he would get a warrant for his arrest if he did not come in voluntarily . . . and
instead explained to him that he would not be placed under arrest.” City Resp. Pl. SMF ¶162
(emphasis in original). After discussing this with his lawyer, Mr. Lalonde went to the police
station. Pl. SMF ¶¶163–64. Plaintiffs claim that while at the police station, “Officer Hollister
began to question Mr. Lalonde about the location of the incident on March 1, 2020, in an attempt
to resurrect the false narrative that the incident occurred on Patterson.” Pl. SMF ¶164. City
Defendants deny this City Resp. Pl. SMF ¶164.
III. 	LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instruct courts to grant summary
judgment if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the
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outcome of the suit under the governing law,” and a dispute is “‘genuine’ . . . if the evidence is
such that a reasonable jury could return a verdict for the nonmoving part.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes that are irrelevant or
unnecessary” will not preclude summary judgment, granting summary judgment is improper if
there are genuinely disputed material facts. Id.; see also Taggart v. Time, Inc., 924 F.2d 43, 46
(2d Cir. 1991) (“Only when no reasonable trier of facts could find in favor of the nonmoving
party should summary judgment be granted.”).
The party seeking summary judgment bears the burden of informing a court of the basis
for the motion and identifying those portions of the record that the moving party claims
will demonstrate the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). In attempting to defeat a motion for summary judgment after the
moving party has met its initial burden, the nonmoving party “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The nonmoving party may not rely on “mere conclusory allegations, speculation, or
conjecture,” see Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir. 2020) (quoting Cifarelli v. Village
of Babylon, 93 F.3d 47, 51 (2d Cir. 1996)), and must present more than a mere “scintilla of
evidence” supporting its claims. Anderson, 477 U.S. at 252. At the same time, a court must
resolve all ambiguities and “draw all reasonable inferences in favor of the nonmoving
party,” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), and “eschew
credibility assessments,” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)). Thus, a Court’s duty in reviewing a
motion for summary judgment is “carefully limited” to “finding genuine disputes of fact,” “not
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to deciding them.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d
Cir. 1994).
IV. DISCUSSION
This opinion proceeds claim by claim. The following claims are at issue in the MSJ; (1)
State-law claims (including negligent infliction of emotional distress, intentional infliction of
emotional distress, negligence, trespass, and loss of consortium); (2) Americans with Disabilities
Act/Rehabilitation Act; (3) Section 1983 Municipal Liability; (4) Section 1983 Deliberate
Indifference; (5) Section 1983 Fabricated Evidence; (6) Section 1983 Conspiracy; (7) Section
1983 False Arrest/False Imprisonment; (8) Section 1983 Assault and Battery; (9) Section 1983
Excessive Force; (10) Section 1983 Failure to Intervene; (11) Section 1985(3) Conspiracy; (12)
Section 1986 Failure to Prevent a Conspiracy.2
2 Plaintiffs concede that the City of Ogdensburg Police Department and Saint Lawrence
County Sheriff’s Department are administrative arms of, respectively, the City of Ogdensburg
and Saint Lawrence County, and therefore, are not amenable to be sued. See Resp. to City at 2,
Resp. to Cnty. at 21. Therefore, Defendants City of Ogdensburg Police Department and St.
Lawrence County Sheriff’s Department are hereby dismissed as Defendants.
As Plaintiff failed to respond to Defendants’ argument for summary judgment regarding
Plaintiff’s 42 U.S.C. ¶1985(3) conspiracy claim, 42 U.S.C. ¶1986 failure to prevent a conspiracy
claim, 42 U.S.C. ¶1983 municipal liability failure to supervise theory, 42 U.S.C. ¶1983
supervisory liability, and request for punitive damages, Plaintiff has abandoned these claims. See
generally, Resp. to Cnty.; Resp. To City; see also Beers v. Gen. Motors Corp., No. 97-CV-
482(NPM/DNH), 1999 WL 325378, at *8 (N.D.N.Y. May 17, 1999) (“Moreover, plaintiff's
failure to oppose [defendant’s] argument is deemed by the court as consent to summary
judgment on th[ose] claims.”) Therefore, Plaintiff’s 42 U.S.C. ¶1985(3) conspiracy claim, 42
U.S.C. ¶1986 failure to prevent a conspiracy claim, 42 U.S.C. ¶1983 municipal liability failure to
supervise theory, and 42 U.S.C. ¶1983 supervisory liability claims are dismissed with prejudice,
and the request for punitive damages is stricken.
Plaintiffs concede their Section 1983 supervisory liability, Section 1985(3) conspiracy
liability, and negligence claims against Defendant Bigwarfe. See Resp. to Cnty. at 21–22.
Therefore, the ¶1983 supervisory liability, Section 1985(3) conspiracy liability, and negligence
claims are dismissed with respect to Defendant Bigwarfe. As consortium claims are derivative on
the presence of other claims, Plaintiffs’ consortium claim against Defendant Bigwarfe is also
dismissed. See Hogan v. CVS Albany, LLC, No. 119CV1455GLSDJS, 2022 WL 4549224, at *3
(N.D.N.Y. Sept. 29, 2022); Cnty. MSJ at 28.
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A. 	State-Law Claims: Negligent Infliction of Emotional Distress, Intentional Infliction of
Emotional Distress, Negligence, Trespass, and Consortium
City Defendants argue that Plaintiffs have failed to comply with the pleading
requirements of New York law, for their state-law claims. City MSJ at 42–47. They conclude
that this necessitates dismissing all state-law claims against them. Id.
“State claims brought under state law in federal court are subject to state procedural
rules.” Coggins v. Cnty. of Nassau, 988 F. Supp. 2d 231, 250 (E.D.N.Y. 2013), aff’d in part,
appeal dismissed in part sub nom. Coggins v. Buonora, 776 F.3d 108 (2d Cir. 2015). New York
General Municipal Law (“GML ”) § 50-i sets out requirements for plaintiffs seeking to sue a
“city [or] county . . . for personal injury . . . alleged to have been sustained by reason of the
negligence or wrongful act of such city [or] county . . . or of any officer, agent, or employee
thereof.” See GML. The notice-of-claim provision allows a city or county time to investigate a
claim, and potentially the opportunity to settle outside of court. Hardy v. New York City Health
& Hosp. Corp., 164 F.3d 789, 794 (2d Cir. 1999). “[P]ursuant to § 50-i, a plaintiff must plead
that: (1) a notice of claim was served; (2) at least thirty days elapsed since the notice of claim
was filed and before the complaint was filed; and (3) in that time, the defendant neglected to or
refused to adjust or satisfy the claim.” Coggins, 988 F. Supp. 2d at 251. “[F]ederal courts
entertaining state-law claims against [state] municipalities are [therefore] obligated to apply the
notice-of-claim provision.” Felder v. Casey, 487 U.S. 131, 151 (1988). “[T]he plaintiff bears the
burden of demonstrating compliance with the notice of claim requirement.” Chabot v. Cnty. of
Rockland, New York, No. 18-CV-4109 (KMK), 2019 WL 3338319, at *9 (S.D.N.Y. July 25,
2019). The Second Circuit has instructed courts to construe the notice-of-claim requirements
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strictly. Hardy, 164 F.3d at 793. “Failure to comply with these requirements ordinarily requires a
dismissal.” Id.
When a plaintiff sues individual defendants and “the City has a duty to indemnify them,”
the notice of claim requirement is applicable. Dorsey v. City of Albany Police Dep't, No. 1:15-
CV-859, 2016 WL 11605138, at *2 (N.D.N.Y. Apr. 13, 2016); see also GML §50-j. Under New
York law, a city is “liable for . . . any duly appointed police officer of such municipality . . . for
any . . . tort, provided such police officer, at the time of . . . tort complained of, was acting in the
performance of his duties and within the scope of his employment.” GML §50-j. Plaintiff
concedes that Defendants Shaver, Pryce, Sirles, Wilson, and Merria were acting “within the
course and scope of their employment. See Compl. ¶10. Plaintiff does not state whether the same
is true for Chief Wescott, see Compl. ¶¶8–9, so the Court will decide whether he was “acting in
the performance of his duties and within the scope of his employment,” so as to trigger the notice
of claim requirement.
“A police officer is deemed to be acting in the performance of his duties and within the
scope of his employment ‘when engaged in the immediate and actual performance of a public
duty imposed by law and such public duty performed was for the benefit of the citizens of the
community wherein such public duty was performed.’” Dorsey, 2016 WL 11605138 at *2
(quoting N.Y. Gen. Mun. Law § 50-j). Pursuant to this standard
the court weighs the following factors: the connection between the time, place and
occasion for the act; the history of the relationship between employer and employee as
spelled out in actual practice; whether the act is one commonly done by such an
employee; the extent of departure from normal methods of performance; and whether the
specific act was one that the employer could reasonably have anticipated.
Id. at *3 (quoting Pizzuto v. Cty. of Nassau, 239 F. Supp. 2d 301, 313 (E.D.N.Y. 2003)).
Having weighed these factors, the Court concludes that any relevant acts committed by
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Defendant Wescott were done in performance of his duties and within the scope of his
employment. Defendant Wescott was on duty when he responded to the scene. See Wescott Dep.
at 64–66. Actions such as meeting with fellow officers after an arrest, assisting with booking an
arrestee, and securing fingerprints after an arrest, are those “commonly done by” a police officer.
See City SMF 625–27, 652; Dkt. No. 96-9 at 20–27 (“Hollister Deposition”).
Therefore, if Plaintiff has not met the pleading standards under the GML, all state claims
must be dismissed. Plaintiffs’ complaint reads “Plaintiffs have complied with all conditions
precedent, including filing of a Notice of Claim under General Municiapl Law 50-3 with
Defendants’ City and County.” Compl. ¶15. City Defendants argue that because the Complaint
does not allege “that (1) a notice of claim was served upon the city; (2) at least thirty days have
elapsed since the Notice of Claim was served and before the complaint was filed; or (3) in that
time the City has neglected to or refused to adjust or to satisfy the claim,” Plaintiffs have not
plead compliance with the notice-of-claim requirements, and the state law claims against the City
and its employees must be dismissed. See City MSJ at 43–47. Failing to meet the notice-of-claim
requirement eliminates the Court’s subject matter jurisdiction. Rivera v. City of New York, No.
1:20-CV-9968-GHW, 2022 WL 1523165, at *3 (S.D.N.Y. May 13, 2022). Therefore, the Court
will also evaluate this argument as it relates to County Defendants as well, sua sponte. See
Edwards v. Montgomery, No. 519CV0923BKSTWD, 2019 WL 4805380, at *4 (N.D.N.Y. Oct.
1, 2019), report and recommendation adopted, No. 519CV0923BKSTWD, 2019 WL 7037617
(N.D.N.Y. Dec. 20, 2019).
Plaintiffs argue that pleading that they had “affirmatively ‘complied with all conditions
precedent, including filing a Notice of Claim’” is sufficient to meet New York’s notice of claim
requirements. Resp. to City at 50. This is incorrect. The statute at issue clearly states that a claim
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covered by the GML must contain “as an allegation in the complaint or moving papers that at
least thirty days have elapsed since the service of [a] notice [of claim] . . . and that adjustment or
payment thereof has been neglected or refused.” GML. The Complaint does not so allege. See
generally Compl. As these requirements are construed strictly, Hardy, 164 F.3d at 793,
Plaintiff’s remaining state-law claims – negligent infliction of emotional distress, intentional
infliction of emotional distress, negligence, trespass, and consortium – against all Defendants
must be dismissed for lack of subject matter jurisdiction. The dismissal is without prejudice.
Consequently, Mrs. Lalonde has no surviving claims, and she is hereby dismissed from
this lawsuit.
B. 	Americans with Disabilities Act
Title II of the Americans with Disabilities Act (ADA) states 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 Rehabilitation Act (RA), likewise,
prohibits discrimination on the basis of disability by programs receiving federal funding. 29
U.S.C. § 794(a). Courts analyze claims under the Rehabilitation Act and Americans with
Disabilities Act together, as the standards “are nearly identical.” McElwee v. Cnty. of Orange,
700 F.3d 635, 640 (2d Cir. 2012). As this Court has previously explained, “it is well-settled that
vicarious liability principles apply under the ADA.” MDO at 47 (citing Morales v. City of New
York, No. 13-CV-7667 (RJS), 2016 WL 4718189, at *7 (S.D.N.Y. Sept. 7, 2016) (“[T]he law is
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clear that municipalities may be held vicariously liable for violations of Title II of the ADA and
Section 504 of the Rehabilitation Act committed by their agents.”)).3
A plaintiff bringing suit under Title II of the ADA or section 504 of the RA must show:
(1) he is a qualified individual with a disability;
(2) the defendant is subject to one of the Acts; and
(3) he was denied the opportunity to participate in or benefit from the defendant's
services, programs, or activities, or was otherwise discriminated against by the defendant
because of his disability.
McElwee, 700 F.3d at 640.
The Court finds that the first two elements of an ADA/RA claim are met. Neither County
Defendants nor City Defendants contest that Mr. Lalonde is a qualified individual with a
disability under the terms of the statutes, and that they are each respectively covered by the
ADA. See generally, Cnty. MSJ; City MSJ. Therefore, the viability of Plaintiff’s ADA/RA claim
rests on whether he can demonstrate he was denied participation in, the ability to benefit from, or
was otherwise discriminated against in, defendant County’s “services, programs, or activities.”
1. 	Arrest as a “service, program, or activity”
Defendant County argues that “Mr. LaLonde has never identified the service, program, or
activity from which he was allegedly excluded.” Cnty. MSJ at 15. Plaintiffs, by contrast, claim,
that “[p]olice officers ‘who are acting in an investigative or custodial capacity are performing
3 Earlier in this case, this Court dismissed Plaintiffs’ ADA and RA claims against
individual Defendants in their individual capacities but allowed Plaintiffs’ ADA and RA claims
to proceed against individual defendants “in their official capacities.” Dkt. No. 22 at 43–44
(“Motion to Dismiss MDO”). The individual defendants were sued, however, only in their
individual capacities. See Comp. at ¶8–10. Plaintiffs “acknowledge[e] that there is no individual
liability under Title II of the ADA,” and aver that they are bringing ADA claims only against the
County and City. Resp. to Cnty. at 14; Resp. to City at 33. Therefore, though County
Defendants and Defendant Merria have sought to dismiss any surviving ADA/RA claims against
the individual defendants, Merria MSJ at 19–20; County MSJ at 13–14, the Court finds that there
are no surviving ADA/RA claims against the individual defendants for this Court to dismiss.
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‘services, programs, or activities’ within the scope of Title II.” Resp. to Cnty. at 15 (quoting
Williams v. City of New York, 121 F. Supp 3d 354, 368 (S.D.N.Y. 2015). The Court agrees with
Plaintiff for the reasons stated below.
Courts have interpreted “[t]he phrase ‘services, programs, or activities’ . . . to be ‘a catch-
all phrase that prohibits all discrimination by a public entity.” Noel v. New York City Taxi &
Limousine Comm'n, 687 F.3d 63, 68 (2d Cir. 2012) (quoting Innovative Health Sys., Inc. v. City
of White Plains, 931 F.Supp. 222, 232 (S.D.N.Y. 1996), aff'd in part, 117 F.3d 37 (2d Cir.
1997), recognized as superseded on other grounds, Zervos v. Verizon N.Y., Inc., 252 F.3d 163,
171 n.7 (2d Cir. 2001)). “As the Second Circuit has explained, the ADA should be ‘broadly
construed to effectuate its purpose of providing a clear and comprehensive national mandate for
the elimination of discrimination against individuals with disabilities.’” Williams v. City of New
York, 121 F. Supp. 3d 354, 365 (S.D.N.Y. 2015) (quoting Noel, 687 F.3d at 68).
District courts in this circuit have therefore consistently found that the ADA applies in
the arrest context. See Morales, 2016 WL 4718189 *7 (“[N]umerous courts within this Circuit
have in the context of arrests . . . recognized claims under the ADA and Rehabilitation Act where
police . . . fail to reasonably accommodate a plaintiff’s disability during the . . . arrest.”)
(collecting cases) (cleaned up).
As the officers’ interaction with and arrest of Mr. Lalonde constitutes a “program,
service, or activity” within the ADA, the analysis now turns to whether the officers discriminated
against Mr. Lalonde in that interaction. There are three types of discrimination claims a plaintiff
can bring under the ADA, Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009), two of which are at
issue: intentional discrimination (disparate treatment) and failure to accommodate, see Cnty.
MSJ at 14.
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2. 	Intentional Discrimination (Disparate Treatment)
“To prove intentional discrimination under [the ADA], ‘a plaintiff must allege facts
showing that a policymaker acted with ill will or personal animosity toward him because of his
disability or that the policy maker acted with deliberate indifference to his rights under the
ADA.’” Johnson v. New York State Police, 659 F. Supp. 3d 237, 253 (N.D.N.Y. 2023) (quoting
Vassenelli v. State Univ. of New York, No. 517CV00082MADATB, 2018 WL 1406629, at *3
(N.D.N.Y. Mar. 19, 2018)). A plaintiff can meet his burden of demonstrating deliberate
indifference under the ADA where “an official who at minimum has authority to address the
alleged discrimination and to institute corrective measures on the recipient's behalf has actual
knowledge of discrimination in the recipient's programs and fails adequately to respond.” Felix v.
City of New York, 344 F. Supp. 3d 644, 665 (S.D.N.Y. 2018) (quoting Loeffler v. Staten Island
Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009)). To be actionable, “[d]eliberate indifference must
be a ‘deliberate choice[,] rather than negligence or bureaucratic inaction.’ Blevins v. Town of
Brighton, No. 24-CV-6080-MAV, 2025 WL 1906756, at *6 (W.D.N.Y. July 10, 2025) (quoting
Loeffler, 582 F.3d at 276) (alteration in original).
Plaintiffs argues that Defendant County engaged in deliberate indifference through its
“complete absence of any specific policies, protocols, and trainings provided to its law
enforcement personnel with respect to the accommodation of individuals with . . . disabilities
whom the police department subjects to custodial detention, arrest and /or pre-arraignment
detention.” Resp. to Cnty. at 18.
Defendant County’s argues in rebuttal that the County has provide significant amounts of
training to its officers, including regarding people with disabilities. See Cnty. Reply at 15.
Plaintiff argues, by contrast that the County provides no “training whatsoever provided to its
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Sheriff deputies . . . on the accommodations required when effectuating an arrest or detention of
visually impaired, or physically or mentally disabled arrestees and detainees.” Resp. to Cnty. at
18. This claim is plainly contradicted by the record. See Dkt. No. 92-10 (“Filiatrault
Declaration”) ¶¶ 27–33 (describing how all Sheriff’s Office deputies go through a training course
which “include[s] . . . training that equips individuals to identify individuals with disabilities and
to interact with them in the most appropriate and effective manner); Dkt. No. 92-14 (“County
Disabilities Curriculum”) (describing the six hours of content that Sheriffs are provided about
how to interact with people with disabilities). As “a reasonable jury” could not find that the
County Sheriff’s Office failed to provide training to its deputies regarding people with
disabilities, this Court finds that the County did not possess “deliberate indifference” towards
people with disabilities, and the intentional discrimination claim under the ADA fails.
As with the County, Plaintiffs falsely claim that the City Police Department provides no
training regarding people with disabilities. Compare Plaintiff’s City SMF 129–30; Resp. to City
at 37 (claiming the City provides no “training whatsoever . . . to its OPD personnel . . . on the
accommodations required when effectuating an arrest or detention of visually impaired, or
physically or mentally disabled arrestees and detainees.”); with ECF Dkt. No. 105-17 (“Basic
Course Section E”). Therefore, Plaintiffs’ ADA intentional discrimination claim against City
fails as well.
3. 	Reasonable Accommodation
“Under Title II of the ADA, a defendant discriminates when [he/she] fails to make a
reasonable accommodation that would permit a qualified disabled individual ‘to have access to
and take a meaningful part in public services.’” Durr v. Slator, 558 F. Supp. 3d 1, 27 (N.D.N.Y.
2021) (quoting Powell v. Nat’l Bd. Of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir. 2004), opinion
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corrected on other grounds, at 511 F.3d 238 (2d Cir. 2004)). In the context of a lawful arrest, a
reasonable accommodation claim is meritorious if “officers . . . fail to reasonably accommodate
the person's disability in the course of investigation or arrest, causing the person to suffer greater
injury or indignity in that process than other arrestees.’ Id. at 28.
“A plaintiff alleging that he was denied a reasonable accommodation bears the burdens of
both production and persuasion as to the existence of some accommodation that would allow him
to meet the essential eligibility requirements of the service, program, or activity at issue.”
McElwee, 700 F.3d at 642. “[A] reasonable accommodation must have a ‘demonstrated
relationship’ to the disability.” Levine v. Project Renewal, No. 24-CV-0616 (LTS), 2024 WL
773722, at *3 n.4 (S.D.N.Y. Feb. 26, 2024). If a plaintiff demonstrates the existence of “a
‘plausible accommodation, the costs of which, facially, do not clearly exceed its benefits,’ the
defendant bears the burden of proving that the requested accommodation is not reasonable.” Id.
(quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995)). Defendant
County argues that Plaintiff Mr. Lalonde has not met his burden, and has not “identif[ied] the
specific accommodation that was reasonable, feasible, and would have effectively addressed Mr.
Lalonde’s disability-related limitations.” Cnty. MSJ at 20.
Plaintiff proposes the following accommodation: “where an arrestee expresses or presents
a disability, de-escalation rather than a heightened use of force is a reasonable and required
accommodation.” Resp. to Cnty. at 16. As a general rule, plaintiff’s contention fails. It cannot be
the case that any disability always requires de-escalation. “De-escalation rather than a heightened
use of force” is generally desirable in officer-civilian interactions, regardless of the person’s
disability status. See id.; Stratakos v. Nassau Cnty., No. CV 15-7244 (GRB), 2021 WL 2587722,
at *7 (E.D.N.Y. June 24, 2021)(“It is a best practice among police professionals to de-escalate
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volatile situations and avoid and/or minimize the use of force where practicable.”). Sometimes,
however, force must be used. Sometimes, force must be used against someone with a disability.
If a mass-shooter happens to use a wheelchair, de-escalation is not “a reasonable and required
accommodation.” Contra Reply to Cnty. at 16. Rather than a general rule that any disability
uniformly requires de-escalation, the cases Plaintiffs cite support the notion that de-escalation
can be a required accommodation, based on the specifics of the plaintiff’s disability. See Sage v.
City of Winooski through Police Dep't, No. 2:16-CV-116, 2017 WL 1100882, at *4 (D. Vt. Mar.
22, 2017) (“violent behavior could arguably have been avoided if the officers had acknowledged
and accommodated [the plaintiff’s] mental illness. . . . by avoiding physical contact and calling a
nearby mental health counselor”); Durr, 558 F. Supp. 3d at 33, citing Sheehan v. City & Cnty. of
San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev'd in part, cert. dismissed in part sub
nom. City & Cnty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600 (2015) (holding that with
respect to someone with mental illness, plaintiff had adequately pled that “the officers should
have respected her comfort zone, engaged in non-threatening communications and used the
passage of time to defuse the situation rather than precipitating a deadly confrontation”); O'Brien
v. City of Syracuse, No. 5:22-CV-948 (MAD/TWD), 2025 WL 1519411, at *1, 15 (N.D.N.Y.
May 27, 2025) (a plaintiff’s allegation that “officers ‘could have stepped back, created a
perimeter around the house, and afforded [plaintiff] a cooling-off period,” when the plaintiff was
as “an allegedly mentally disabled woman,” adequately stated a failure to accommodate claim).
Plaintiffs have identified an accommodation, de-escalation, but have not demonstrated a
relationship between the proposed accommodation and Mr. Lalonde’s disability, as required. See
Levine, 2024 WL 773722, at *3 n.4. Plaintiffs do not discuss why Mr. Lalonde’s disabilities –
blindness and limited use of certain muscles – require that the police deescalate an encounter.
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See Resp. to Cnty. at 14, 16–17; Resp. to City at 34–36. As Plaintiffs have not met their burden
of demonstrating a connection between the proposed accommodation and Mr. Lalonde’s
disability, Plaintiffs’ reasonable accommodation theory fails. See Levine, 2024 WL 773722, at *3
n.4. Defendants are thus granted summary judgment on Plaintiffs’ ADA/RA claims, which are
hereby dismissed.
C. 	Section 1983
42 U.S.C. § 1983 allows for suit against a “every person,” who, under color of law,
“subjects, or causes to be subjected . . . the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws.” 42 U.S.C. § 1983 (“Section 1983”). “[Section] 1983
provides a vehicle by which to seek redress against state actors for a wide range of constitutional
violations.” Reynolds v. Barrett, 741 F. Supp. 2d 416, 425 (W.D.N.Y. 2010), aff’d, 685 F.3d 193
(2d Cir. 2012). Each of the claims Plaintiffs bring under Section 1983 are discussed in turn.
1. Municipal Liability
The Supreme Court has interpreted the word “person” in Section 1983 to include
municipalities, and thus, “[l]ocal governing bodies . . . can be sued . . . under § 1983 for
monetary, declaratory, or injunctive relief where . . . the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of City
of New York, 436 U.S. 658, 690 (1978). This Monell liability “impose[s] civil liability on
municipalities for their own illegal acts,” not the illegal acts of their employees. Pembaur v. City
of Cincinnati, 475 U.S. 469, 479 (1986). The “injury [must be] caused by a municipal policy or
custom.” Los Angeles Cnty., Cal. v. Humphries, 562 U.S. 29, 30–31 (2010).
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There are four means by which a plaintiff can meet the policy or custom requirement: (1)
“a formal policy exists subjecting the municipality to liability”; (2) “a policy-making official for
the municipality caused a deprivation of [the plaintiff’s] constitutional rights”; (3) “a practice
was so consistent and widespread that it constitutes a tacit custom that ‘is so widespread as to
have the force of law’”; (4) “policymakers failed to provide adequate training or supervision to
subordinates to such an extent that it amounts to deliberate indifference to the rights of those who
interact with municipal employees.” Dixon v. City of Syracuse, 493 F. Supp. 3d 30, 36
(N.D.N.Y. 2020) (quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397,
404–07 (1997)). “Monell's policy or custom requirement is satisfied where a local government is
faced with a pattern of misconduct and does nothing, compelling the conclusion that the local
government has acquiesced in or tacitly authorized its subordinates' unlawful actions.” Reynolds
v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).
Plaintiff argues that Monell liability attaches in two ways. First, that Defendants City and
County failed to train its officers such that it exhibited “deliberate indifference,” and second, that
Defendants City and County failed to screen veteran officers when hiring. See Resp. to Cnty. at
5–13; Resp. to City at 40–48. This Court will consider both arguments in turn.
a. 	Failure to Train
The Second Circuit has established three requirements for a failure to train Monell
claim: (1) A reasonable finder of fact must be able to “conclude that a policy-maker 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”; (3) “The wrong
choice by the city employee will frequently cause the deprivation of a citizen’s constitutional
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rights.” Green v. City of New York, 465 F.3d 65, 80–81 (2d Cir. 2006) (cleaned up). To survive
summary judgment, there must be “a specific deficiency in the city’s training program . . . and
the deficiency [must be] closely related to the ultimate injury, such that it actually caused the
constitutional deprivation.” Id. at 81 (quoting Amnesty Am., 361 F.3d at 129. Indeed, as the
Supreme Court has recognized, “[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).
As discussed with respect to the ADA, Plaintiffs’ are factually wrong in suggesting that
the County’s and City’s officers received no training regarding how to respectfully interact with
people with disabilities. See section IV(B).4 As Plaintiffs have not described how this training is
inadequate, see Resp. to Cnty. at 5–6; Resp. to City at 41–42 this Court finds that Plaintiffs have
not met their burden of demonstrating any deficiency in the training provided. Green, 465 F.3d at
81. Therefore, the Court grants summary judgment on the Plaintiffs’ Section 1983 municipal
liability claim based on a failure to train
b. 	Failure to Screen
Plaintiffs briefed a theory of the County’s failure to screen, when responding to County
and City Defendants’ summary judgment motion. Resp. to Cnty. at 11–13; Resp. to City at 46–
48. In reply, County Defendants argued that Plaintiffs “assert[ed] a new theory” that “was neither
pleaded in the Complaint nor disclosed at any point during discovery.” County Rep. at 10.
4 Inexplicably, Plaintiffs’ Response to the County dispute whether the City provided
training to its officers. See Resp to Cnty. at 5–6.
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A party generally may not “assert a cause of action for the first time in response to a
summary judgment motion,” LeBlanc v. United Parcel Serv., No. 11 CIV. 6983 KPF, 2014 WL
1407706, at *17 (S.D.N.Y. Apr. 11, 2014).
[C]laims that are related to or are mere variations of previously pleaded claims—that is,
claims based on the same nucleus of operative facts and similar legal theories as the
original claims—may be raised on a motion for summary judgment where the defendant
was clearly on notice from the complaint and was not unfairly prejudiced.
Henry v. Metro. Transp. Auth., No. 07 CIV. 3561 DAB, 2014 WL 4783014, at *10
(S.D.N.Y. Sept. 25, 2014) (quoting Coudert v. Janney Montgomery Scott, LLC, No. 3:03 CV 324
MRK, 2005 WL 1563325, at *2 (D. Conn. July 1, 2005), aff'd sub nom. Coudert v. Janney
Montgomery Scott, LLC., 171 F. App'x 881 (2d Cir. 2006).
Plaintiffs’ Complaint failed to put Defendants on notice of an intent to pursue a failure to
screen claim. Plaintiffs’ Complaint alleged facts relating to Defendants City’s and County’s use
of force policies, investigations, and training. See Compl. ¶108. The Complaint did not make
any allegations regarding hiring, except as follows: “Defendants’ [sic] . . . failed to properly
hire, train, instruct, monitor, supervise, evaluate, investigate, and discipline Defendant Officers’
[sic], Chief Wescott . . . and other City and County personnel, with deliberate indifference to Mr.
Lalonde’s Constitutional rights.” Compl. ¶ 109 (emphasis added). This mere invocation of the
word “hire,” in a long list of verbs, without supporting allegations, provides little notice to
Defendant of Plaintiffs’ intended claims. The Monell section of the Complaint clearly indicates
an intent to bring failure to train and failure to supervise claims, and not a failure to hire, given
that not one of Plaintiffs’ ten specific claims in the complaint relates to hiring. Complaint
¶108(a–h). Thus, this Court will not consider Plaintiffs’ argument. See Zaniewska v. City of New
York, No. 11-CV-2446 RRM VVP, 2013 WL 3990751, at *10 (E.D.N.Y. Aug. 5, 2013), aff’d,
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569 F. App'x 39 (2d Cir. 2014) (refusing to consider alternative Monell theories that were raised
only in response to summary judgment).
As Plaintiffs have not provided a viable theory of Monell liability, and attempted to bring
a new claim not brought before in their briefing, Defendants County and City are granted
summary judgment on Plaintiff’s Section 1983 Monell claim.
2. 	Deliberate Indifference
“The Due Process Clause . . . requires the responsible government or governmental
agency to provide medical care to persons . . . who have been injured while being apprehended
by the police.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). The
standard for deliberate indifference to an arrestee’s medical condition is the same under the
Fourteenth Amendment’s due process clause as it would be under the Eighth Amendment. Brock
v. Logsdon, No. 19-CV-6082, 2022 WL 17488612, at *6 (W.D.N.Y. Dec. 7, 2022). A successful
deliberate indifference claim must meet two requirements: (1) the objective requirement that “the
alleged deprivation of adequate medical care . . . be sufficiently serious”; and (2) the subjective
requirement that “the charged officials . . . be subjectively reckless in their denial of medical
care.” Spavone v. New York State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
(internal citations omitted).
To meet the objective requirement, there must be “a condition of urgency, one that may
produce death, degeneration, or extreme pain.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.
2003).
“When the basis for a [medical indifference] claim is a temporary delay or interruption in
the provision of otherwise adequate medical treatment, it is appropriate to focus on the
challenged delay or interruption in treatment rather than the prisoner's underlying
medical condition alone in analyzing whether the alleged deprivation is, in “objective
terms, sufficiently serious.”
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Id. (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Specifically, “[it is]
the particular risk of harm faced by a [arrestee] due to the challenged deprivation of care, rather
than the severity of the [arrestee’s] underlying medical condition, considered in the abstract, that
is relevant.” Id. at 186. When the indifference at issue is a delay of care, “the relevant time
period begins when a defendant becomes aware of facts from which he could, and does, infer
that a substantial risk of serious harm exists.” Morrison v. New York City Dep't of Corr., No. 11
CIV. 9109 DAB, 2013 WL 5308015, at *4 (S.D.N.Y. Sept. 20, 2013).
Defendant Merria and City Defendants argue that the delay in calling for medical
assistance (seven to sixteen minutes) was of an insufficient length to satisfy the objective
requirement. Merria MSJ at 13–14; City MSJ at 15–16. Merria also relies on the fact that “[t]here
is no allegation or evidence that any alleged delay in receiving medical treatment exacerbated
Mr. Lalonde’s condition.” Merria MSJ at 13. Plaintiffs argue that the injuries to Mr. Lalonde
were “sufficiently serious,” Resp. to Merria at 13–14, but, given the Second Circuit’s holding in
Smith, the extent of the injuries are insufficient to meet the objective prong. 316 F.3d at 185.
Courts in this Circuit have held that a deprivation is not sufficiently serious unless there
is a “significant delay in medical treatment.” Santiago v. City of New York, No. 98 CIV. 6543
(RPP), 2000 WL 1532950, at *6 (S.D.N.Y. Oct. 17, 2000). Delays of less than two hours have
not been held to be significant. See id. (holding that a delay was not sufficently serious when
police called EMS twenty-six minutes after the plaintiff reported of pain, the EMS to arrived
nine minutes later, and plaintiff reached the hospital the one hour and ten minutes after that);
Rivera v. State of N. Y., No. 96 CIV. 7697 (RWS), 1999 WL 13240, at *6 (S.D.N.Y. Jan. 12,
1999) (holding that it was not deliberate indifference when the plaintiff, who had been shot,
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“was brought to the medical clinic less than one hour after his injury was reported and brought to
the hospital less than two hours after the medical clinic referred him there.”).
On these facts, the precedent clearly shows that “the particular risk of harm faced by [Mr.
Lalonde] due to the challenged deprivation of care” was not sufficiently serious to qualify as
deliberate indifference. To be clear, Mr. Lalonde was bleeding from his ear and was requesting
medical care, and the fact that he needed to transfer hospitals, shows that his medical condition
was serious. Pl. SMF ¶90, 178. But, if, in Rivera, a nearly two hour delay in bringing someone
who was shot to the hospital was insufficiently serious, see 1999 WL 13240 at *6, then a
similarly timed delay on these facts must be as well. The Court grants Defendants summary
judgment on Plaintiffs’ deliberate indifference claim.
3. 	Fabrication of Evidence
“To succeed on a fabricated-evidence claim, a plaintiff must establish that ‘an (1)
investigating official (2) fabricate[d] information (3) that is likely to influence a jury's verdict,
(4) forward[ed] that information to prosecutors, and (5) the plaintiff suffer[red] a deprivation of
life, liberty, or property as a result.’” Ashley v. City of New York, 992 F.3d 128, 139 (2d Cir.
2021). “The mere fact that the parties present conflicting evidence does not mean that one side's
evidence was fabricated.” Davis-Guider v. City of Troy, No. 23-589, 2024 WL 5199294, at *3
(2d Cir. Dec. 23, 2024). [A] plaintiff must prove a defendant's fabrication was “made
knowingly.” Id. (quoting Morse v. Fusto, 804 F.3d 538, 547 (2d Cir. 2015)). “Testimony that is
incorrect or simply disputed should not be treated as fabricated merely because it turns out to
have been wrong.” Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014).
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As Defendant Meria and City Defendants make different arguments with respect to why
they should be granted summary judgment on the fabrication of evidence claim, the Court
discusses them separately.
a. 	Defendant Merria
Defendant Merria claims, and Plaintiffs do not dispute, that “the only information
provided by Deputy Merria to OPD, and which presumably was included within the arrest file . .
. sent to the District Attorney’s Office, is the information contained in Deputy Merria’s
supporting deposition.” Merria MSJ at 15; See Resp. to Merria at 16–18; Dkt. No. 90-6 (“Merria
Supporting Deposition”). As it is a requirement for a fabrication of evidence claim that the
information be given to prosectors, see Ashley, 992 F.3d at 139, the Court will limit its inquiry to
Merria’s Supporting Deposition. Plaintiffs argue that the following sections are fabricated:
Upon my arrival a male subject was yelling at members of the Ogdensburg City Police at
which time they advised him he was under arrest. The subject did resist arrest and was
brought to the ground. . . . The subject did continue to resist arrest on the ground by
pulling my police vest, refusing to let go and not following directions.
Merria Supporting Dep; see Resp. to Merria at 18.
In its reply to a contention interrogatory, when asked to “[i]dentify each and every action
of Sheriff Merria you contend was unconstitutional,” Plaintiffs responded that Defendant Merria
“fabricat[ed] inculpatory statements attributed to Mr. Lalonde.” Dkt. 90-20 (“Response
to County Interrogatories”) at 4. This is the only allegation plausibly related to fabricating
evidence. See id. at 4–5. Defendant argues that “Plaintiff’s responses to contention
interrogatories show that the [fabrication of evidence] claim is based on allegedly fabricated
inculpatory statements attributed to Mr. Lalonde,” but the only document that could be used to
support a fabrication of evidence claim does not describe any statements allegedly made by Mr.
Lalonde. Merria Reply at 8.
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Interrogatories interposed under Rule 33(c), otherwise known as contention
interrogatories, serve “to discover the theory of the responding party's case.” Salter v. I.C. Sys.,
Inc., No. 3:04 CV 1566(RNC), 2005 WL 3941662, at *1 (D. Conn. May 3, 2005). “The Second
Circuit has not ruled on the issue of whether interrogatory responses are binding judicial
admissions but several district courts have determined they are.” Hamelin v. Faxton-St. Luke's
Healthcare, 274 F.R.D. 385, 390 (N.D.N.Y. 2011) (collecting cases). In order to pursue a theory
of liability, a plaintiff’s answers to Contention Interrogatories must reflect the theory, its
responses must be amended to reflect the theory, or plaintiff must “show[] that this omission was
harmless or provide[] a justification for it.” In re Methyl Tertiary Butyl Ether (MTBE) Prods.
Liab. Litig., 117 F. Supp. 3d 276, 298 (S.D.N.Y. 2015). It is not necessary for the defendant to
have been prejudiced for the failure to include and/or amend to preclude a theory of liability. See
Bergin v. New York State Unified Ct. Sys., No. 22-CV-5264 (BMC), 2024 WL 4665266, at *3
(E.D.N.Y. Nov. 4, 2024) (citing In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig.,
117 F. Supp. at *3). District courts have “broad discretion” in deciding whether an issue is
precluded by a party’s response to contention interrogatories. See Int'l Cards Co., Ltd. v.
MasterCard Int'l Inc., No. 13 CIV. 2576 (LGS), 2017 WL 1133425, at *4 n. 4 (S.D.N.Y. Mar.
24, 2017), aff’d sub nom. Int'l Cards Co. Ltd. v. Mastercard Int'l Inc, 741 F. App'x 41 (2d Cir.
2018).
Plaintiffs have apparently changed his theory since the contention interrogatory. Plaintiffs
now argue that Defendant Merria fabricated that “officers inform[ed] Mr. Lalonde that he was
under arrest, what offense he had committed, [and] why he was under arrest,” that he “tr[ied] t
affirmatively punch, kick, or grab hold and wrestle with . . . the responding officers,” and
“resist[ed] or attempt[ed] to grab the officers.” Resp to Merria MSJ at 18. This is a different
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theory from arguing that Merria “fabricat[ed] inculpatory statements,” Resp. to Cnty.
Interrogatories at 4, and is thus impermissible. Therefore, Defendant Merria is granted summary
judgment on Plaintiffs’ fabrication of evidence claim.
a. 	City Defendants
City Defendants argue that the claim that Defendants “fabricated any evidence . . . is . . .
unsupported by the record evidence before this Court.” City MSJ at 22. The City observes that
“there is simply no record evidence of any fabricated statements attributed to Timothy ‘that
fallaciously attempted to shift the blame for his injuries away from the officers to Timothy
himself and/or some imaginative gang of roving young men in Ogdensburg who assaulted
disabled and blind men like Mr. Lalonde.’” City MSJ at 22 n. 6 (quoting Compl. ¶101) (cleaned
up).
Plaintiffs, conversely, argue that the disagreement over Mr. Lalonde’s behavior prior to
and during his arrest demonstrate that there is a genuine dispute of material fact with respect to
the fabrication of evidence. Resp. to City at 31–32.
This Court finds that Plaintiffs have not met their burden at summary judgment. The
Court acknowledges that there is a dispute over when Mr. Lalonde was yelling, who he yelled at,
and whether he resisted arrest. See Resp. to City at 31–32. But even if Defendant Officers’
accounts turns out to have been wrong, it does not follow that they intentionally fabricated
evidence. See Davis-Guider v. City of Troy, No. 1:17-CV-1290 (DJS), 2023 WL 2693438, at *7
(N.D.N.Y. Mar. 29, 2023), aff’d, No. 23-589, 2024 WL 5199294 (2d Cir. Dec. 23, 2024)
(“Courts across the country have recognized that ‘testimony that is incorrect or simply disputed
should not be treated as fabricated merely because it turns out to have been wrong.’”) (quoting
Halsey v. Pfeiffer, 750 at 295). Plaintiffs have presented no evidence of intentional fabrication
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that would meet the scienter requirement of their claim. See Davis-Guider, 2024 WL 5199294 at
*3. Given this absence of evidence, City Defendants are entitled to summary judgment on the
fabrication of evidence claim. See Panagatos v. Petsmart, Inc., No. 18-CV-5032 (SJF) (AKT),
2020 WL 7343409, at *5 (E.D.N.Y. Dec. 14, 2020) (“[T[he absence of evidence at the summary
judgment stage redounds to the detriment of the plaintiff, not the defendant.”) (quoting Santora
v. Costco Wholesale Corp., No. 17-CV-4415 (CS), 2018 WL 5886442, at *3 (S.D.N.Y. Nov. 8,
2018)).
4. 	Section 1983 Conspiracy
“To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or
more state actors or between a state actor and a private entity; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). “[T]o survive a motion for summary
judgment, the non-moving party's evidence of a § 1983 conspiracy must, at least, reasonably lead
to the inference that [the defendants] positively or tacitly came to a mutual understanding to try
to accomplish a common and unlawful plan.” Ivery v. Baldauf, 284 F. Supp. 3d 426, 439
(W.D.N.Y. 2018) (alteration in original).5 That is, the “plaintiff ‘must provide some factual basis
5 The parties appear to express disagreement over the appropriate standard of review for a
motion for summary judgment regarding a Section 1983 conspiracy claim. See Resp. to Merria at
19; Merria Reply at 8. As with any other motion for summary judgment, when the burden at trial
would be on the plaintiff, the moving defendant “may satisfy his burden . . . in either of two
ways: (1) by submitting evidence that negates an essential element of the non-moving party’s
claim, or (2) by demonstrating that the non-moving party’s evidence is insufficient to establish
an essential element of the non-moving party’s claim.” Farid v. Smith, 850 F.2d 917, 924 (2d
Cir. 1988). Applying that rule to this case, the moving party, Defendant Merria, must show that
Plaintiffs’ evidence of a conspiracy is insufficient. “[T]he moving party need not make any
affirmative prima fascine showing on a motion for summary judgment,” and need only “point[t]
to an absence of evidence” support Plaintiffs. Panagatos, 2020 WL 7343409, at *5 (E.D.N.Y.
Dec. 14, 2020) (quoting Lyman v. PetSmart, Inc., No. 16 CIV. 04627 (JCM), 2018 WL 4538908,
at *3 (S.D.N.Y. Sept. 21, 2018)). “[T[he absence of evidence at the summary judgment stage
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supporting a meeting of the minds.’” Ivery, 284 F. Supp. at 439 (quoting Webb v. Goord, 340
F.3d 105, 110–11 (2d Cir. 2003)).
In response to Defendants' Motion, Plaintiffs limit their conspiracy claim to alleging that
“City Defendants and Deputy Merria had an agreement to fabricate and falsify evidence as the
means by which to cover up their excessive force.” See Resp. to Merria at 20, Resp to City at 22.
The second element of conspiracy requires that there be an “underlying constitutional
violation.” Mitchell v. Cnty. of Nassau, 786 F. Supp. 2d 545, 564 (E.D.N.Y. 2011). In the
absence of such a violation, the count must be dismissed. See id. As this Court has granted
summary judgment for Defendants on Plaintiffs’ fabrication of evidence claim, see section
IV(C)(3), the corollary Section 1983 Conspiracy claim also fails. Defendants are therefore
granted summary judgment on the Section 1983 Conspiracy claim.
5. 	False Arrest / False Imprisonment
Defendant Merria and City Defendants move for summary judgment on Plaintiffs’ false
arrest claim, arguing that the Defendant officers had probable cause to arrest Plaintiff Mr.
Lalonde. City MSJ at 8–10; Merria MSJ at 4–6. Defendant Merria argues that he reasonably
relied on the OPD officers who decided to arrest Mr. Lalonde. Merria MSJ at 6–7. In the
alternative, City Defendants and Defendant Merria argues that qualified immunity applies to the
false arrest claim. City MSJ at 11–12; Merria MSJ at 7–8.
“False arrest and false imprisonment . . . are two names for the same tort.” Blanco v.
Success Acad. Charter Schs., Inc., 722 F. Supp. 3d 187, 209 (S.D.N.Y. 2024) (quoting Davis v.
Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). Therefore, these claims are analyzed together.
redounds to the detriment of the plaintiff, not the defendant.” Id. at *5 (E.D.N.Y. Dec. 14, 2020)
(quoting Santora, 2018 WL 5886442, at *3.
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“In analyzing § 1983 claims for unconstitutional false arrest, [courts] 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) (quoting Davis, 364 F.3d at 433). “Under New York law, the elements of a false
arrest and false imprisonment claim are: ‘(1) the defendant intended to confine the plaintiff, (2)
the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the
confinement and (4) the confinement was not otherwise privileged.’” Hernandez v. United
States, 939 F.3d 191, 199 (2d Cir. 2019) (quoting McGowan v. United States, 825 F.3d 118, 126
(2d Cir. 2016) (per curiam)).
“The existence of probable cause to arrest constitutes justification and ‘is a complete
defense to an action for false arrest.’” Weyant, 101 F.3d at 852 (quoting Bernard v. United
States, 25 F.3d 98, 102 (2d Cir. 1994)). “[P]robable cause to arrest exists when the officers have
knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the person to be arrested has committed
or is committing a crime.” Id. To determine whether probable cause is present, “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)).
Defendants argues that there was probable cause to arrest Mr. Lalonde for disorderly
conduct. Merria MSJ at 5; City MSJ at 8–9. Under New York law, a person commits disorderly
conduct “when, with intent to cause public inconvenience, annoyance, or alarm, or recklessly
creating a risk thereof,” an individual (as is relevant here) “makes unreasonable noise . . . or [in]
a public place, . . . uses abusive or obscene language, or makes an obscene gesture.” N.Y. Penal
Law §240.20(2), (3). “The New York disorderly conduct statute punishes ‘disruptive behavior . .
. of public rather than individual dimension.’” Provost v. City of Newburgh, 262 F.3d 146, 157
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(2d Cir. 2001) (quoting People v. Munafo, 406 N.E.2d 780, 783 (N.Y. 1980) (alterations in
original). “The clear aim was to reserve the disorderly conduct statute for situations that carr[y]
beyond the concern of individual disputants to a point where they . . . become a potential or
immediate public problem.” Id. (quoting Munafo, 406 N.E.2d at 783) (alterations in original); see
also People v. Baker, 984 N.E.2d 902, 906 (N.Y. 2013) (requiring “proof of public harm” or
recklessness or intent to create such harm).
In assessing whether mens rea is present, courts consider “many factors, including ‘the
time and place of the episode under scrutiny; the nature and character of the conduct; the number
of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature
and number of those attracted; and any other relevant circumstances.’” Baker, 984 N.E.2d at 906
(quoting People v. Weaver, 944 N.E.2d 634, 636 (N.Y. 2011)). “[B]ecause ‘the practical
restraints on police in the field are greater with respect to ascertaining intent[,] . . . the latitude
accorded to officers considering the probable cause issue in the context of mens rea crimes must
be correspondingly great.’” Zalaski v. City of Hartford, 723 F.3d 382, 393 (2d Cir. 2013)
(quoting Cox v. Hainey, 391 F.3d 25, 34 (1st Cir. 2004)) (alterations in original).
a. 	Officers Merria and Sirles
Defendants Merria and Sirles had several pieces of information that could be used to infer
that Mr. Lalonde had violated the act requirement of the statute. The OPD had received a call
regarding an allegedly “intoxicated man who was yelling on the street of Pleasant Avenue.” Dkt.
No. 90-1 (“Merria SMF”) ¶1. Defendant Merria “heard OPD radio traffic regarding the
[allegedly] intoxicated male who was yelling on Pleasant Avenue in the City of Ogdensburg.” Id.
¶2. Defendant Sirles was informed of a “general disturbance, disorderly conduct-type situation.”
City SMF ¶359 After Defendant Shaver had arrived on scene, Defendants Merria and Sirles
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heard a male shout “fuck you” on Defendant Shaver’s radio transmission. Id. ¶361; Merria SMF
¶5. Though he could not have known with certainty that the person responsible for the disorderly
conduct was Plaintiff Timothy Lalonde, it was reasonable for Defendants Merria and Sirles to
infer that this was the case, since Defendant Shaver was near Mr. Lalonde when those
Defendants arrived. Dkt. No. 92-41 at 75–82 (“Merria Deposition”); City SMF ¶365.
Defendants Merria and Sirles had probable cause to believe that the mens rea requirement
for the disorderly conduct state had been met. Specifically, Defendant Merria and Sirles could
reasonably believe that Plaintiff Timothy Lalonde had recklessly created the risk of “public
inconvenience, annoyance, or alarm.” N.Y. Penal Law §240.20(2). The initial call to the police
was made after midnight, regarding a man yelling on the street. Merria SMF ¶1; Dkt. No. 94-11
(“Redacted Incident Report”). Not only would this predictably lead to public disruption, but a
neighbor was sufficiently bothered by the yelling to call the police. See Redacted Incident
Report. As our sister court reasoned, “the fact that Plaintiff's use of obscenities attracted the
attention of at least one neighbor made it objectively reasonable to believe that the conduct went
beyond an ‘individual dimension’ and that Plaintiff had the requisite intent for disorderly
conduct.” Smith v. City of New York, No. 1:18-CV-05079-MKV, 2021 WL 4267525, at *10
(S.D.N.Y. Sept. 20, 2021)
Plaintiffs argue that Mr. Lalonde had “calmed down” by the time Defendant Merria
arrived, defeating Defendant’s probable cause argument. See Resp. to Merria at 6–7. This
argument is unavailing, as probable cause is present when there is sufficient reason to belief that
an individual has committed an offense, even if the criminal activity has ceased. See Bernard, 25
F.3d at 102. What Defendants Merria and Sirles directly observed is relevant, however, for
ascertaining the “facts available to the officer at the time of the arrest.” Panetta v. Crowley, 460
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F.3d 388, 395 (2d Cir. 2006) (quoting Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)
(emphasis in original). As Defendants Merria and Sirles was not the first officer on the scene,
they would have reasonably expected other officers to have gathered additional facts regarding
the presence of probable cause and the appropriateness of arrest. “Absent significant indications
to the contrary, an officer is entitled to rely on his fellow officer's determination that an arrest
was lawful.” Id. at 395 (quoting Loria v. Gorman, 306 F.3d 1271, 1288 (2d Cir. 2002). It was
thus reasonable for Defendants Merria and Sirles to rely on the determination of another officer
that Mr. Lalonde should be arrested. Merria SMF ¶14; City SMF ¶379. The false arrest claims
against Defendants Merria and Sirles are therefore dismissed.
b. 	Officer Pryce
Defendant Pryce is unable to rely on the fact that another officer made the determination
to make an arrest, since she was the one who began the arrest. See City SMF ¶ 272. Nonetheless,
Defendant Pryce, like Defendant Merria, had multiple pieces of information supporting the
conclusion that Plaintiff Mr. Lalonde had violated the act requirement for disorderly conduct.
She “had been dispatched by the OPD dispatcher to an annoying noise complaint near Jay Street
concerning a male walking down the street yelling or being loud.” City SMF ¶247. En route, she
heard on the radio “[Defendant] Shaver and a male subject yelling in the background of the radio
frequency.” Id ¶251. Shaver and Mr. Lalonde were the only two men present, other than
Defendants Merria and Sirles, who arrived simultaneously, when Defendant Pryce reached the
scene. Id ¶¶253–54, 256, 264. Defendant Pryce could have inferred from this that it was Mr.
Lalonde who she had heard yelling on the radio. Office Pryce could have reasonably assumed
that Defendant Shaver had not instigated an argument or otherwise engage in conduct that would
have led Mr. Lalonde to engage heatedly with Defendant Shaver. Alternatively, Defendant Pryce
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could have inferred that the loud male, Mr. Lalonde, referred to on the dispatch call had
continued to be disorderly when approached by Defendant Shaver. There was therefore sufficient
evidence that the act requirement of the disorderly conduct statute had been met. See N.Y. Penal
Law §240.20(2), (3) (with the appropriate conduct, disorderly conduct occurs when an individual
“makes unreasonable noise . . . or [in] a public place, . . . uses abusive or obscene language, or
makes an obscene gesture.”). As the Court’s analysis of the mens rea requirement with respect to
Defendant Merria applies in full to Defendant Pryce, Defendant Pryce had probable cause to
arrest Mr. Lalonde.
c. 	Officer Shaver
Defendant Shaver, unlike the other Defendants, is unable to rely on the inference that Mr.
Lalonde’s voice was heard on the radio, as he was the one on scene. See City SMF ¶466.
Additionally, as Defendant Shaver was the first officer on the scene, See City SMF ¶¶ 467–68, it
would have made little sense for him to rely on the determination of Defendant Pryce, who came
later and thus had no additional information not available to him.
Plaintiffs dispute whether Mr. Lalonde yelled at Defendant Shaver. Pl. Resp. City SMF
¶¶ 481, 492. Plaintiffs’ story is questionable. Since it is undisputed that Defendants Pryce,
Merria, and Sirles, heard yelling and/or obscenities on Shaver’s radio, see Pl. Resp. City SMF
¶¶251, 361 it is unclear who those officers would have heard other than Mr. Lalonde. Even if
Defendant Shaver did not hear Mr. Lalonde shout “fuck you” at him, but instead, heard Mr.
Lalonde shout “fuck you” at Mr. Outlaw so loudly that it was captured on his radio, see Pl. SMF
¶¶ 48, 53, this too would support a finding of probable cause for disorderly conduct since it
would have been a disruptive obscene noise.
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d. 	Chief Wescott
As Defendant Wescott was not present on scene at the time of the arrest, see Dkt. No. 96-
11 at 77–78 (“Wescott Deposition”), the Section 1983 false arrest and excessive force claims are
dismissed against him. See Keyes v. Venettozzi, No. 918CV0372GTSDJS, 2022 WL 991402, at
*6 (N.D.N.Y. Mar. 31, 2022) (“With respect to how to establish the personal involvement of
supervisory officials, ‘a plaintiff asserting a Section 1983 claim against a supervisory official in
his individual capacity must allege that the supervisor was personally involved in the alleged
constitutional deprivation.’”) (quoting Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246,
254 (2d Cir. 2001)).
As all Defendants have met their burden on for the claims of false arrest and false
imprisonment, the claims are hereby dismissed. As there was probable cause to arrest Mr.
Lalonde, the Court does not reach the Defendants’ argument regarding qualified immunity.
6. 	Assault and Battery
City Defendants argue that Plaintiffs’ Section 1983 assault and battery claims must be
dismissed, as they are duplicative with Plaintiffs’ Section 1983 excessive force claim. City MSJ
at 3. Plaintiffs note that this Court found “that the civil assault and the ‘civil battery claim[s] will
be allowed to proceed’ under New York State law.” MDO at 16; Resp. to City at 3. City
Defendants respond that “Plaintiffs have not asserted a state law assault or battery claim (but
rather, a federal assault and battery claim). . . . [I]t is respectfully submitted that Plaintiffs’
federal assault and battery claim asserted pursuant to [Section] 1983 must be dismissed as
duplicative of their excessive force claim.” City Reply at 3 (emphasis in original). For the
reasons that follow, this Court agrees with City Defendants, and the assault and battery claims
are dismissed.
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Plaintiffs’ Complaint clearly states that they intend to bring assault and battery claims
under 42 U.S.C. §1983. Compl. at 12. Plaintiffs’ “State Claims” section does not mention assault
and battery. See id. at 31–36. Therefore, Plaintiffs did not bring a state assault or state battery
claims, and there are no such claims to dismiss. With respect to the federal Section 1983 assault
and battery claims, they are dismissed as duplicative of the excessive force claim. See Johnston
v. City of Syracuse, No. 5:20-CV-1497, 2021 WL 3930703, at *5 (N.D.N.Y. Sept. 2, 2021)
(dismissing the plaintiff’s “§ 1983 assault and battery claim as duplicative of his excessive force
claim”); Boyler v. City of Lackawanna, 287 F. Supp. 3d 308, 323 (W.D.N.Y. 2018), aff’d, 765 F.
App'x 493 (2d Cir. 2019) (“Plaintiff’s . . . causes of action[] alleging an assault and battery under
§1983 . . . are properly formulated as excessive force claims”); Henderson v. Williams, No. 3:10-
CV-1621 JCH, 2013 WL 1984545, at *3 (D. Conn. May 13, 2013) (“[T]here is no federal
common law claim for assault or battery.”).
7. 	Excessive Force
City Defendants argue that they should be granted summary judgment on the excessive
force claim because the force used was objectively reasonable. City MSJ at 51–56. In the
alternative, they argue that they are entitled to qualified immunity on the excessive force claim.
Id. at 58–60. The Court addresses each argument in turn.
A. Objective Reasonableness
Fourth Amendment excessive force claims are reviewed under the standard
of objective “reasonableness.” Graham v. Connor, 490 U.S. 386, 395 (1989). Reasonableness is
understood by analyzing “the ‘totality of the circumstances,’” not just merely the moment force
is used. Barnes v. Felix, 605 U.S. 73, 80 (2025) (quoting Graham, 490 U.S. at 427–28). To
determine whether the force applied was unreasonable, courts analyze “the severity of the
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crime,” “whether the suspect pose[d] an immediate threat to the safety of the officers or others,”
and “whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490
U.S. at 396. The balancing of these factors is imprecise, and “[a]ll that can realistically be
expected [of a reviewing court] is to make some assessment as to the extent to which each
relevant factor is present and then somehow make an aggregate assessment of all the factors.”
Brown v. City of New York, 798 F.3d 94, 102 (2d Cir. 2015). Under Graham, the officers’
“underlying intent or motivation” is irrelevant to the reasonableness inquiry. See Graham, 490
U.S. at 397.
Moreover, the extent of the injury is also relevant for courts’ consideration of an
excessive force claim. Abreu v. Nicholls, 368 Fed.App’x. 191, 193 (2d Cir. 2010) (“[T]he extent
of injury is a relevant factor.”). On one end of the spectrum, “[r]easonable force does not become
unconstitutional merely because it caused the plaintiff serious injury.” Walker v. Thibault, No.
5:22-CV-1088 (MAD/ATB), 2023 WL 7701726, at *4 (N.D.N.Y. Nov. 14, 2023), aff’d, No. 23-
7896, 2025 WL 294507 (2d Cir. Jan. 24, 2025) (quoting Otero v. Town of Southampton, 194 F.
Supp. 2d 167, 180 (E.D.N.Y. 2002), aff’d, 59 F. App'x 409 (2d Cir. 2003)). On the other end of
the spectrum, courts in this Circuit sometimes impose a de minimis requirement on the injury
caused by the use of force. See Lemmo v. McKoy, No. 08-CV-4264 RJD, 2011 WL 843974, at *5
(E.D.N.Y. Mar. 8, 2011) (arguing that injuries cannot merely be de minimis, if a Fourth
Amendment excessive force claim is to succeed); Barcomb v. Kraeger, No. 3:14CV1159 (JBA),
2016 WL 2644885, at *4 (D. Conn. May 5, 2016) (rejecting such a requirement).
“Given the fact-specific nature of the inquiry, granting summary judgment against a
plaintiff on an excessive force claim is not appropriate unless no reasonable factfinder could
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conclude that the officers’ conduct was objectively unreasonable.” Amnesty Am., 361 F.3d at
123.
“Courts in this circuit have found officers’ use of force to effectuate an arrest justified
when a suspect is resisting arrest by contorting their body or otherwise making it difficult to
handcuff them.” Gutierrez v. New York, No. 18-CV-3621 (MKB), 2021 WL 681238, at *15
(E.D.N.Y. Feb. 22, 2021) (collecting cases). “In addition, tackling or shoving a plaintiff down to
the ground can be an objectively reasonable response to a plaintiff resisting arrest.” Id.
City Defendants argue that on these facts, the factors weigh in favor of Defendants:
[W]here, as here, Timothy, a large male, presented with a hostile, combative demeanor
and displayed aggressive pre-fight indicators which were perceived (and it is respectfully
submitted, would have been perceived by any reasonable officer in the situation
confronting the OPD Officer Defendants) as posing an immediate threat to the safety of
the office[r]s on scene, the forced used by each of the individually named OPD Officer
Defendants against Timothy as he both actively and passively resisted the officers
attempts to arrest him was objectively reasonable under the circumstances.
City MSJ at 55–56. Plaintiffs, alternatively argue that disputed issues of material fact
preclude summary judgment. Most importantly, they argue that they “have presented evidence
that while holding his blind cane, after Mr. Lalonde raised his arms slightly in response to
Defendant Pryce’s command, the other three officers tackled him from behind.” Resp. to City at
55.
As a preliminary matter, it is necessary to establish which facts are disputed, and which
are undisputed. See Anderson, 477 U.S. at 248 (holding that summary judgment is inappropriate
if there are genuine disputes of material fact). Plaintiffs assert that “[Defendant] Pryce . . .
aggressively approached Mr. Lalonde, screaming, ‘let me see your hands, let me see your hands’
while standing two feet in front of him.” Pl. City SMF ¶71. Defendants dispute this, but
acknowledge that “the cited materials . . . purport to show . . . that a female officer uttered ‘let
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me see your hands, let me see your hands,’” and that “Mrs. LaLonde heard a female officer
screaming, [though] ‘she couldn’t understand what she was screaming.’” City Resp. Pl. SMF ¶71
(quoting Dkt. No. 96-2 at 49 (Theresa Lalonde Deposition”)). Plaintiffs claim that “Mr. Lalonde
. . . in response to Sgt. Pryce’s command raised his arms slightly.” Pl. SMF ¶77. Defendants
acknowledges that the “cited materials purport to show that Mr. LaLonde raised his hands
‘halfway’ upon the female officer yelling ‘let me see your hands’ at him three times.” City Resp.
Pl. SMF ¶77 (quoting Timothy Lalonde Second Dep. at 130). Per Mr. Lalonde’s testimony, “then
the other three officers hit me in the back and plow[ed] me to the ground.” Timothy Lalonde
Second Dep. at 131. Defendants acknowledge that the “cited materials . . . purport to show that
[witness Mr. Ashley] saw the officers tackle Timothy from behind . . . and there was an audible
sound of the wind getting knocked out of Timothy’s body.” City Resp. Pl. SMF ¶81 (quoting
Ashley Decl. ¶16). Defendants present an alternative account, see City MSJ ¶¶515–29, but given
the conflicting evidence, this Court finds that a reasonable jury could find for Plaintiffs.
Defendants importantly note that the alleged “tackle” “had not been alleged to have
resulted in any injury to Mr. LaLonde.” City Reply at 56. Plaintiffs claim that “While Mr.
Lalonde was face down on the pavement, the officers screamed ‘give me your arm’ while
struggling to wrench his left arm out from under his body.” .” Pl. SMF ¶83. City Defendants
dispute this, pointing to other evidence in the record, but the rules of summary judgment are
clear that the Court should not weigh conflicting evidence. McClellan v. Smith, 439 F.3d 137,
144 (2d Cir. 2006). Defendants acknowledge that the “cited materials . . . purport to show . . .
that Mrs. Lalonde had no recollection of Mr. Lalonde grabbing any officers and that Mrs.
Lalonde, neither saw, nor heard, Mr. Lalonde disobey a command that was given by a police
officer.” City Resp. Pl. SMF ¶88 (citations omitted).
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After being tackled, Mr. Lalonde’s left arm was trapped underneath his body. Timothy
Lalonde Second Dep. at 133–34. In trying to handcuff Mr. Lalonde’s left arm, Defendant officers
pulled on it such that “the arm popped.” Id. at 134. Defendants concede that evidence “purport[s]
to show . . . that ‘the officers] had fractured [Mr. LaLonde’s] wrist and tore his rotator cuff by
pulling on [his] arm.” City Resp. Pl. SMF ¶87 (quoting Timothy Lalonde Second Dep.).
However, City Defendants note that there is no evidence that they (as opposed to Defendant
Merria) had contact with Mr. Lalonde’s left arm. City MSJ at 55 n. 27; see also City MSJ at 543
“Merria was over on Timothy’s left arm.”). Meanwhile, Mr. Lalonde was tased twice. City Resp.
Pl. SMF ¶89.
Subsequently, an eyewitness reports seeing “the female officer jump down with what
looked like her knee landing onto Timothy’s skull.” Ashley Decl. ¶18. As Mr. Lalonde describes,
“then the lady officer jumped on my head causing 10 stitches in my ear.” Timothy Lalonde
Second Dep. at 135. City Defendants dispute this account, see City MSJ at 55 n. 57, but on
Summary Judgment, the Court makes all reasonable inferences in favor of the non-moving party,
Reeves, 530 U.S. at 150, the Plaintiffs, which means inferring that the eyewitness accounts
supporting Plaintiffs’ account are correct.
Mr. Lalonde’s injuries from the arrest included, as diagnosed, a dislocated left elbow, a
torn rotator cuff on his left shoulder, a fractured left wrist, and laceration of his right ear. Dkt.
No. 105-10 at 2 (“Hospital Statement”); Dkt. No. 105-2 at 1 (“Setter Statement”). Mr. Lalonde
required surgery on his elbow, first to reinsert the elbow, and then to stabilize it. See Pl. SMF at
119–20. Mr. Lalonde has also suffered hearing loss following the incident, though the doctor
could not identify the source of the loss. Timothy Lalonde Deposition Dkt. No. 96-3 at 65–67.
Mr. Lalonde has also been diagnosed with PTSD, anxiety, and depression, following the
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incident. Id. at 71. Per Mr. Lalonde’s neighbor, Mr. Lalonde “is no longer able to use his left
arm, which prior to [the incident], he relied upon to do many of his outside chores.” Ashley Decl.
¶23.
For the reasons explained below, when all reasonable inferences are made in favor of
Plaintiffs, Reeves, 530 U.S. at 150, all of the factors weigh in their favor. Defendants are
therefore not entitled to summary judgment with respect to objective reasonableness in their use
of force.
First, City Defendants concede that the crime for which Mr. Lalonde was arrested,
disorderly conduct, is “not severe in nature.” City MSJ at 55.
Second, at no point did Mr. Lalonde “pose an immediate threat to the safety of the
officers or others.” Graham, 490 U.S. at 396. When Mr. Lalonde allegedly raised his hands after
being asked to do so, Pl. SMF ¶77, any perceived threat to the officers should have been
demonstrated to be negligible. Per the neighbor witness, “Upon arriving, the officers
instantaneously surrounded and tackled Timothy with his blind cane in hand and as such, there
was nothing that I observed or heard that would have placed the officers in fear that Timothy
could physically harm them.” Ashely Decl. ¶23. Defendants present an alternative account, in
which Mr. Lalonde “displayed pre-fight indicators, including making fists” and acting “like a
boxer or UFC fighter right before the fight begins.” City SMF ¶¶ 507–08. However, as these
claims are disputed, see Pl. Resp. City SMF ¶¶507–08, the Court will disregard them in ruling on
summary judgment, see Anderson, 477 U.S. at 248.
City Defendants and Plaintiffs have presented conflicting accounts of what happened
when Mr. Lalonde was on the ground. See generally, Pl. SMF; City SMF. The City describes Mr.
Lalonde as “kicking and still being combative on the ground.” City SMF ¶ 286; City SMF ¶299.
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Defendants claim that “Whenever [Defendant Pryce] would try to place [Mr. Lalonde’s] right
arm behind his back, Timothy would grab ahold of her pant legs and push her leg from
underneath her.” City SMF ¶301. “Anytime DP could get her leg back underneath him and try to
pull his arm back, Timothy would then pull his arm away from her and flail it.” Id. ¶303. It is
disputed whether Mr. Lalonde grabbed Defendant Merria. See Pl. Resp. City SMF ¶308; see also
Dkt. No. 96-1 at 38 (“Timothy Lalonde First Deposition”) (showing that Mr. Lalonde testified
that he did not grab any officers). In the tussle, “[Defendant Pryce] suffered a torn labrum,
rotator cuff and bicep tendon, which required her to undergo surgery.” City SMF ¶ 312.
Purportedly because the officers “were having difficulty gaining control of [Mr. Lalonde’s
arms],” Defendant Sirles tazed Mr. Lalonde. City SMF ¶413. Plaintiffs deny that Mr. Lalonde
resisted at all. See Pl. Resp. City SMF ¶532; Timothy Lalonde First Dep. at 38 (“[D]id you
resist? Never once.”); Theresa Lalonde Dep. at 21–22 (claiming that Mr. Lalonde was “[l]aying
there . . . [s]till” when the officers were on top of him). Weighing the morass of evidence and
conflicting claims is beyond the role of this Court in deciding a motion for summary judgment;
rather, this Court must make all reasonable inferences in favor of the Plaintiffs. See McClellan,
439 F.3d at 144; Reeves, 530 U.S. at 150. In doing so, it finds that there are disputed facts
regarding whether Mr. Lalonde presented any significant threat to the safety of the officers while
lying on the ground.6 The second factor therefore could weigh in favor of Plaintiffs.
6 The fact that most powerfully points in the direction of believing Defendants’ account is
that Defendant Pryce suffered significant injury to her arm. See City SMF¶312. However, the
injury does not speak for itself with respect to what caused it. Mr. Lalonde’s right arm was
significantly injured due to flesh-eating bacteria and surgery that “remov[ed] . . . muscles
extending from [his] right shoulder, chest, down this spine,” and elsewhere. Pl. SMF ¶7. This
caus[ed] an exceedingly diminished use of his right side, right arm, and shoulder.” Id. ¶9.
Defendant Pryce claims to have hurt her arm while trying to secure Mr. Lalonde’s injured right
arm. Pryce Dep. at 19–20. Though Ms. Pryce claims that Mr. Lalonde “attempt[ed] to push me,
like, away with his right arm,” Id. it is not clear Mr. Lalonde’s right arm would have been
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With respect to the third factor, “whether [Mr. Lalonde] [was] actively resisting arrest or
attempting to evade arrest by flight,” the Court again observes that the accounts from the parties
conflicts significantly. As with the question of whether Mr. Lalonde posed a threat, Plaintiffs
have presented two party witnesses who claim that Mr. Lalonde was not resisting arrest, see Dkt.
96-1; Theresa Lalonde Dep. at 21–22, while Defendant officers claim that Mr. Lalonde was
resisting arrest. See e.g., Dkt. No. 96-8 at 132–48 (“Shaver Deposition”); Pryce Dep. at 96, 102–
22. Summary judgment requires that the Court not make credibility assessments or weigh
conflicting evidence in determining which party’s plausible account is correct. See McClellan,
439 F.3d at 144; Amnesty Am., 361 F.3d at 122. As there is a genuine dispute of material fact as
to whether Mr. Lalonde was resisting arrest, all three factors could weigh in favor of the
Plaintiffs. Thus, the Court finds that Defendants have not met their burden at summary judgment
of showing that the use of force was objectively reasonable.
Defendants argue that the injury to Mr. Lalonde is de minimis. City MSJ at 55 n. 27.
Insofar as a de minimis requirement applies, see Barcomb v. Kraeger, 2016 WL 2644885 at *4
(holding that no such requirement exists), this argument is unavailing. Mr. Lalonde’s injuries are
greater than those that have been to sufficient to state a claim. See e.g., Jackson v. City of New
York, 939 F.Supp. 2d 235, 254 (E.D.N.Y. 2013) (finding that a plaintiff who experienced
“contusions to [her] back, tenderness on [her] abdomen, and swelling around [her] wrists,” had
been sufficiently injured); Maxwell v. City of New York, 380 F.3d 106, 109 (2d Cir.),
supplemented, 108 F. App'x 10 (2d Cir. 2004) (finding that force that “sen[t] pain into [the
plaintiff’s] arm and lower back and [left] her with a post-concussive syndrome” had caused
capable of injuring Pryce. Again, sorting out these conflicting accounts is the role of a finder of
fact, not a Court on a motion for summary judgment.
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sufficient injury to support an excessive force claim); Davenport v. Cnty. of Suffolk, No. 99-CV-
3088 JFB, 2007 WL 608125, at *10–11 (E.D.N.Y. Feb. 23, 2007) (finding that a “bump on [the
plaintiff’s] head” that received no medical treatment was sufficiently serious to meet the de
minimis requirement). Therefore, Mr. Lalonde’s injuries, which include a torn-rotator cuff, a
fractured wrist, a lacerated ear, diminished use of his arm, and hearing loss, are clearly more than
de minimis. See Hospital Statement at 2; Setter Statement at 1; Pl. SMF at 119–20; Timothy
Lalonde Deposition Dkt. No. 96-3 at 65–67, 71; Ashley Decl. ¶23.
B. Qualified Immunity
Qualified immunity “protects government officials from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal quotations omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To
determine whether a defendant is entitled to qualified immunity, courts ask whether the facts
shown ‘make out a violation of a constitutional right’ and ‘whether the right at issue was “clearly
established” at the time of defendant's alleged misconduct.’” Estate of Devine, 676 F. App’x 61,
62 (2d Cir. 2017) (summary order) (quoting Pearson, 555 U.S. at 232). “To be clearly
established, a right must be sufficiently clear that every reasonable official would [have
understood] that what he is doing violates that right.” Brown, 862 F.3d at 190 (quoting Reichle v.
Howards, 566 U.S. 658 (2012)). “Controlling authority serves to put officials on notice of what
is unlawful; however, ‘existing precedent must have placed the statutory or constitutional
question beyond debate.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). The
Supreme Court has instructed courts “not to define clearly established law at a high level of
generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting al-Kidd, 563 U.S. at 742). In
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evaluating a qualified immunity defense for an excessive force claim, “it is ‘especially
important’ that the law be clearly established with a high degree of ‘specificity’ because ‘[i]t is
sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to
the factual situation the officer confronts.’” Collins v. City of New York, 295 F. Supp. 3d 350,
369 (S.D.N.Y. 2018) (quoting Mullenix, 577 U.S. at 12).
“Moreover, if ‘officers of reasonable competence could disagree on the legality of the
action at issue in its particular factual context,’ the officer is entitled to qualified immunity.”
Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016) (quoting Walczyk v. Rio, 496 F.3d 139, 154
(2d Cir. 2007)). “But, if ‘it is obvious that no reasonably competent officer’ would have taken
such action, that officer will not be immune.” Id. (citing Malley v. Briggs, 475 U.S. 335, 341
(1986)). Ultimately, “qualified immunity protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Id. (quoting Mullenix, 577 U.S. at 12).
Defendants rely heavily on a case from the Southern District, which found that, as of
September 2020, “there [was] no clearly established law that the use of significant force against a
non-compliant but non-threatening arrestee amounts to constitutionally excessive force.” Harris
v. Leon, No. 20 CIV. 10864 (LGS), 2023 WL 2051171, at *7 (S.D.N.Y. Feb. 16, 2023); City
MSJ at 59; City Reply at 59.7 Additionally, “there is no clearly established precedent . . . that
prohibits the use of significant force by an officer against an individual who is resisting arrest
7 In the alternative, City Defendants argue that Plaintiffs “have consented to [their]
argument and/or abandoned their excessive force claim,” as Plaintiffs’ Response brief did not
respond to the rule statement from Harris. City Reply at 60. Though Plaintiffs’ Response would
not win any awards for legal writing, it identifies that the identifying the level of specificity is
crucial in a qualified immunity analysis, and argues that Defendants have identified the wrong
level of specificity. Resp. to City at 58. Therefore, Defendant’ argument that Plaintiffs have
consented to Defendants argument or have abandoned their claim is unavailing.
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and is reasonably believed to pose a threat to the officer's safety.” Matusak v. Daminski, 755 F.
Supp. 3d 325, 337 (W.D.N.Y. 2024), aff’d, 165 F.4th 702 (2d Cir. 2026) (collecting cases).
However, it is essential in qualified immunity cases that the legal rule at issue be stated
with sufficient specificity. See Collins, 295 F. Supp. at 369. “[T]aking an arrestee to the ground
who is not violent, resisting, or posing a threat to officers or the public violates clearly
established law.” Meli v. City of Burlington, Vermont, 585 F. Supp. 3d 615, 631–32 (D. Vt.
2022) (collecting cases). Plaintiffs have presented evidence that Mr. Lalonde was “not violent,
resisting, or posing a threat to officers or the public” when he was taken down by the defendant
officers. See id.; see also Pl. SMF ¶77 (Mr. Lalonde raised his hands before being tackled);
Ashely Decl. ¶23 (witness did not observe Mr. Lalonde being threatening). Therefore, making all
reasonable inferences in favor of the Plaintiffs, Reeves, 530 U.S. at 150, the alleged tackling of
Mr. Lalonde may have violated a clearly established right, and City Defendants have not
established that they are entitled to qualified immunity.
Additionally, it is clearly established that hitting a suspect in the head who is not
“actively resisting” constitutes excessive force. Bryant v. Hartford, No. 3:17-CV-01374 (VAB),
2021 WL 4477311, at *13 (D. Conn. Sept. 30, 2021) (“If [the defendant] . . . was no longer on
the run or fighting the officers when he was struck on the head and hit on the back of his thigh,
then the officers are not entitled to qualified immunity. . . . If [the defendant] was actively
resisting . . . however, then the . . . Defendants may be entitled to qualified immunity.”); see also
Wong v. Yoo, 649 F. Supp. 2d 34, 58 (E.D.N.Y. 2009) (finding that hitting a suspect in the head,
when the defendant officer “had no reason to fear that plaintiff posed a risk of death or serious
injury to him or to others,” violated clearly established law). As discussed above, it is disputed
whether Mr. Lalonde was resisting arrest when he was allegedly hit in the head by Defendant
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Pryce’s knee. see Dkt. 96-1; Theresa Lalonde Dep. at 21–22. Thus, a reasonable jury could find
that the knee strike, if it occurred, violated clearly established law. And “[b]ecause a jury could
reasonably conclude that the officer violated clearly established law at some point in the
encounter, the defendants’ motion for summary judgment on the qualified immunity defense is
denied.” Dasrath v. City of New York, No. 15CV766AMDRLM, 2018 WL 10501877, at *7
(E.D.N.Y. Sept. 25, 2018). This genuine dispute of mateiral fact precludes summary judgement.
8. 	Failure to Intervene
“Police officers have an affirmative duty to intervene to protect the constitutional rights
of citizens from infringement by other law enforcement officers in their presence.” Cornell v.
Vill. of Clayton, 691 F. Supp. 3d 608, 620 (N.D.N.Y. 2023) (quoting Martinez v. City of New
York, 564 F. Supp. 3d 88, 106 (E.D.N.Y. 2021) (internal quotations omitted). “To succeed on a
failure to intervene claim, a plaintiff must demonstrate that: (1) the defendant had a realistic
opportunity to intervene and prevent the harm; (2) a reasonable person in the defendant's position
would have known that the plaintiff's constitutional rights were being violated; and (3) the
defendant did not take reasonable steps to intervene.” Id. (quoting Wagner v. Hyra, 662 F. Supp.
3d 274, 285–86 (N.D.N.Y. 2023)). “Whether the officer had a ‘realistic opportunity’ to intervene
is normally a question for the jury, unless, considering all the evidence, a reasonable jury could
not possibly conclude otherwise.” Pajazetovic v. City of Utica, New York, No.
618CV1496TJMATB, 2021 WL 4440473, at *9 (N.D.N.Y. Sept. 27, 2021) (quoting Sloley v.
VanBramer, 945 F.3d 30, 47 (2d Cir. 2019)). “To determine whether the defendant had a realistic
chance to intervene, courts in this Circuit consider a number of factors, including ‘(1) the number
of police officers present; (2) the officers’ relative placement; (3) the environment in which the
officers acted; [and] (4) the nature of the assault.’” Bovee v. Auburn Police Dep't, No. 5:24-CV-
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1138 (DNH/MJK), 2024 WL 4600030, at *2 (N.D.N.Y. Oct. 29, 2024), report and
recommendation adopted, No. 5:24-CV-1138, 2024 WL 4834214 (N.D.N.Y. Nov. 20, 2024)
(quoting Johnson v. City of New York, No. 15-CV-6915 (ER), 2019 WL 294796, at *9 (S.D.N.Y.
Jan. 23, 2019)).
“Failure to intervene claims are ‘contingent upon the disposition of the primary claims
underlying the failure to intervene claim.’ Usavage v. Port Auth. of New York & New Jersey, 932
F. Supp. 2d 575, 599 (S.D.N.Y. 2013) (quoting Matthews v. City of New York, 889 F. Supp. 2d
418, 443–44 (E.D.N.Y. 2012)). “A plaintiff cannot succeed on a claim for failure to intervene
under § 1983 when there is no underlying constitutional violation.” Kayo v. Mertz, 531 F. Supp.
3d 774, 799 (S.D.N.Y. 2021).
As this Court is granting summary judgment to defendants on Plaintiffs’ false arrest,
fabrication of evidence, and deliberate indifference claims, the associated failure to intervene
claims also fail. See id. Thus, this Court proceeds in its analysis only with respect to the claim
that Defendants failed to intervene in the use of excessive force.
“[A]ll 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 may attach where an
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.’” Jones v. City of Mount Vernon, No. 22-CV-414 (NSR), 2023 WL
2118026, at *5 (S.D.N.Y. Feb. 17, 2023) (quoting Anderson, 17 F.3d at 557). “If [an] officer was
a direct participant in the excessive force violation, the failure to intervene theory will be
inapplicable.” Sanabria v. Detective Shawn Tezlof, No. 11-CV-6578 (NSR), 2016 WL 4371750,
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at *6 (S.D.N.Y. Aug. 12, 2016). However, a plaintiff may plead in the alternative, where a
reasonable factfinder could find that a particular defendant did not use excessive force, but failed
to prevent another defendant from doing so. See Buchy v. City of White Plains, No. 14 CV 1806
(VB), 2015 WL 8207492, at *3 (S.D.N.Y. Dec. 7, 2015); see also Cumberbatch v. Port Auth. of
New York & New Jersey, No. 03 CIV. 749 (BSJ), 2006 WL 3543670, at *11 (S.D.N.Y. Dec. 5,
2006).
As the officers are differently situated, the Court analyzes Defendant Pryce, Defendants
Shaver, Sirles, and Merria, and Defendant Wescott, separately.
a. 	Defendant Pryce
Plaintiffs claim that Defendant Pryce did not partake in the alleged initial tackle of Mr.
Lalonde. See Timothy Lalonde Second Dep. at 131. In Plaintiffs’ account, at the moment of the
tackle, she had just ordered Mr. Lalonde to show his hands, and was standing nearby. Id. at 130–
31. The Court acknowledges that there is conflicting evidence over whether a tackle took place,
and whether Defendant Pryce partook in the initial contact with Mr. Lalonde. See e.g., Dkt. No.
92-39 at 78–81 (“Sirles Deposition”). City Defendants argue that there is no evidence that
Defendant Pryce “had any realistic opportunity to intervene to stop [the use of force], as [she
was] actively attempting to gain Timothy’s compliance.” City MSJ at 58 n. 29. However, when
Mr. Lalonde fell to the ground, there is a genuine dispute of fact regarding City Defendant’s
description. A reasonable factfinder could conclude that Defendant Pryce could see any use of
excessive force and could have prevented it, but did not. Therefore, Defendant Pryce is not
entitled to summary judgment on the excessive force claim.
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b. 	Defendants Shaver, Sirles, and Merria
As Defendants Shaver, Sirles, and Merria partook in the alleged tackle, see Timothy
Lalonde Second Dep. at 131, they cannot be found liable for failing to intervene in that tackle.
See Sanabria, 2016 WL 4371750 at *6. While Mr. Lalonde was on the ground, Defendants Sirles
Shaver, and Merria were on top of him, attempting to handcuff him. See City SMF at 393–401,
529–34; Merria MSJ at 20. Plaintiffs have not alleged facts indicating that Defendants Shaver,
Sirles, and Merria would have been in a position to intervene prior to her allegedly kneeing Mr.
Lalonde in the head. See Pl. SMF 87–90. Rather, Plaintiffs make a conclusory argument that
Defendant Shaver “permitted Officers Pryce, Sirles, and Deputy Merria . . . to participate in
deploying a quantum of force incommensurate with Mr. Lalonde’s actions.” City MSJ at 29.
This is not enough for Plaintiffs to meet their burden at summary judgement of presenting
sufficient evidence for a reasonable jury to conclude that Defendant Shaver or other Defendants
had a “realistic opportunity” to prevent other officers’ excessive use of force, specifically
Defendant Pryce’s alleged knee to the head. See Pajazetovic, 2021 WL 4440473, at *9. As
Defendants Shaver, Sirles, and Merria are entitled to summary judgment, the failure to intervene
claims against Defendants Shaver, Sirles, and Merria, are therefore dismissed.
c. 	Defendant Wescott
Defendant Wescott was not on the scene when excessive force was allegedly used against
Mr. Lalonde. See Dkt. No. 96-11 at 77–78 (“Wescott Deposition”) Therefore, he could not
possibly have intervened. Plaintiffs’ failure to intervene claim against Defendant Wescott is thus
dismissed.
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D. Section 1985(3) Class-based Conspiracy
Plaintiffs claim that Defendant officers engaged in a conspiracy to deprive Plaintiff Mr.
Lalonde of his rights, based on his status as a disabled person. Compl. ¶¶138–46. City
Defendants and Defendant Merria move for summary judgment. Merria MSJ at 20–23; City MSJ
at 22–25.
[T]o state a civil rights conspiracy under § 1985(3), a plaintiff must allege: 1) a
conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal privileges and immunities
under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is
either injured in his person or property or deprived of any right or privilege of a citizen of
the United States
MDO at 29–30 (quoting Britt v. Garcia, 457 F.3d 264, 269 n.4 (2d Cir. 2006)). A
“Section 1985 conspiracy claim require[s] a showing of an underlying constitutional violation.”
Edwards v. Horn, No. 10 CIV. 6194 RJS JLC, 2012 WL 473481, at *19 (S.D.N.Y. Feb. 14,
2012), report and recommendation adopted, No. 10 CIV. 6194 RJS JLC, 2012 WL 760172
(S.D.N.Y. Mar. 8, 2012). “The conspiracy must also be ‘motivated by some racial or perhaps
otherwise class-based, invidious discriminatory animus.’” Dolan v. Connolly, 794 F.3d 290, 296
(2d Cir. 2015) (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007)).
Mere membership in a protected class is insufficient to show animus. Posr v. Ct. Officer Shield
No. 207, 180 F.3d 409, 419 (2d Cir. 1999).
To demonstrate that a conspiracy was formed, “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, 340 at 110 (quoting Romer v. Morgenthau, 119
F.Supp. 2d 346, 363 (S.D.N.Y. 2000)). “Conspiracy claims under § 1985(3) must contain
specific factual allegations, and a complaint consisting of nothing more than conclusory or vague
allegations of conspiracy is insufficient to survive a motion to dismiss.” Oquendo v. Dep't of
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Correction, No. 3:16-CV-1709 (MPS), 2018 WL 1069577, at *4 (D. Conn. Feb. 27, 2018)
(quoting Doe v. Mastoloni, No. 3:14-CV-00718 (CSH), 2016 WL 593439, at *16 (D. Conn. Feb.
12, 2016)). Defendants argue that Plaintiffs have not presented sufficient evidence that any
conspiracy was motivated by animus directed at Mr. Lalonde’s disability. Merria MSJ at 21; City
MSJ at 20. Plaintiffs argue, by contrast, that “the unprovoked, forcecful arrest of Mr. Lalonde
while adjacent to his residence, wearing darkened sunglasses and holding a blind cane in his
hand, allows for a reasonable inference that Mr. Lalonde’s disability was an animating cause for
the officers’ decision[s].” Resp. to City at 27. On this point, the Court agrees with Defendant.
The mere fact of Mr. Lalonde’s disability is insufficient to demonstrate that the Defendants’
actions were motivated by animus towards that disability. See Posr, 80 F.3d at 419.
Plaintiffs present additional evidence of animus, but from events after the alleged
constitutional violation. For instance, in the police station, an officer threatened to shoot Mr.
Lalonde if he (accidentally) touched one of them again. Pl. SMF ¶107. Throwing Mr. Lalonde
headfirst into the police car, after learning that he could not sit up properly in the police car, may
also be evidence of anti-disability animus. See Pl. SMF ¶98. Pulling the disabled Mr. Lalonde
out of the police car by his feet, such that he fell to the ground, and then pulling him off the
ground by his belt and pants such that they ripped, might also be evidence of anti-disability
animus. See Pl. SMF ¶¶104–05. However, these instances took place after the alleged underlying
constitutional violation at issue: the use of force against Mr. Lalonde. See generally, Pl. SMF.
None of these potential indications of animus are sufficient to establish that there was a
conspiracy motivated by said animus. Dolan, 794 F.3d at 296. Insofar as Defendants formed a
conspiracy to brutalize Mr. Lalonde, Plaintiffs present no evidence that they agreed to do so
because Mr. Lalonde is disabled. Therefore, Defendants are entitled to summary judgment on the
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Section 1985(3) conspiracy claim, which is hereby dismissed.
E. Section 1986 Neglect to Prevent a Conspiracy
“Section 1986 ‘provides a cause of action against anyone who having knowledge that any
of the wrongs conspired to be done and mentioned in section 1985 are about to be committed and
having power to prevent or aid, neglects to do so.’” Thomas v. Roach, 165 F.3d 137, 147 (2d Cir.
1999) (quoting Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1088 (2d Cir.
1993)); see also 42 U.S.C. § 1986. “A claim under section 1986 . . . lies only if there is a viable
conspiracy claim under section 1985.” Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir.
1994). As this Court has granted Defendants summary judgment on Plaintiffs’ Section 1985(3)
conspiracy claim, see supra section IV(D), it also dismisses Plaintiffs’ Section 1986 claims, see
Gagliardi, 18 F. 3d at 194.
V. CONCLUSION
Defendant Merria’s Motion has been granted in full. However, as he did not move on the
excessive force claim, the excessive force claim against Defendant Merria survives. County
Defendants’ Motion is granted in full, and all claims against County Defendants have been
dismissed. City Defendants Motion has been granted in part, and denied in part. The excessive
force claim against Defendants Pryce, Shaver, and Sirles, and the failure to intervene claim
against Defendant Pryce, survive. All other claims against City Defendants have been dismissed.
Accordingly, it is hereby:
ORDERED, that Defendant Merria’s Motion, Dkt. No. 90 is GRANTED; and it is
further
ORDERED, that County Defendants’ Motion, Dkt. No. 92 is GRANTED; and it is
further
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ORDERED, that City Defendants’ Motion, Dkt. No. 94 is GRANTED in part and
DENIED in part; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED: 	March 31, 2026
Albany, New York
LAWRENCE E. KAHN
United States District Judge
Case 8:22-cv-00164-LEK-DJS Document 125 Filed 03/31/26 Page 57 of 57