Perkins v. Solomon et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
DERRICK PERKINS,
Plaintiff,
- against -
DETECTIVE JOSEPH SOLOMON, et al.
Defendants.
-----------------------------------X
MEMORANDUM & ORDER
No. 17-cv-3683 (KAM)(MMH)
KIYO A. MATSUMOTO, United States District Judge:
On 	June 	15, 	2017, 	Plaintiff 	Derrick 	Perkins 	(“Plaintiff”)
commenced 	this 	action 	pro 	se 	against 	Defendants 	Joseph 	Solomon,
Emanuel 	Vizzotti, 	Salvatore 	Taorimina, 	Charles 	Lovett, 	Kevin
Phelan, 	Joseph 	Manzella, 	Kevin 	Hammerschlog 	(the 	“Officer
Defendants”), Michelle Kaszuba, Crystal Igneri, Denise Tirino (the
“Queens 	Defendants,” 	together 	with 	the 	Officer 	Defendants, 	the
“City 	Defendants”), 	Matthew 	Levy, 	and 	Paul 	Kearon 	(the 	“Levy
Defendants”). 	Liberally 	construed, 	the 	Complaint 	alleges 	six
causes 	of 	action 	under 	42 	U.S.C. 	§ 	1983 	for 	false 	arrest 	(Count
One), 	malicious 	prosecution 	(Count 	Two), 	excessive 	force 	(Count
Three), 	fabrication 	of 	evidence 	(Count 	Four),1 	conspiracy 	to
fabricate 	evidence 	(Count 	Five), 	deprivation 	of 	medical 	care
1 Although Plaintiff claims that Defendants tampered with, destroyed, and did
not 	voucher 	evidence 	of 	a 	cellphone 	linked 	to 	a 	911 	call, 	(Compl. 	at 	2),
Plaintiff does not explicitly claim that the Defendants fabricated evidence.
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(Count Six), and one state law claim for intentional infliction of
emotional 	distress 	(Count 	Seven). 	(ECF 	No. 	1, 	Complaint
(“Compl.”).)
Presently 	before 	the 	Court 	are 	two 	motions 	to 	dismiss 	the
Complaint on behalf of all Defendants pursuant to Federal Rule of
Civil Procedure 12(b)(6). 	(See ECF Nos. 114, 119.) 	Plaintiff did
not file responses to either of the motions to dismiss. (See June
25, 2025 Dkt. Order.)
BACKGROUND
Pursuant 	to 	Rule 	12(b)(6), 	the 	Court 	accepts 	the 	following
allegations in the Complaint as true for the purpose of resolving
the 	motions. 	See 	Herrera 	v. 	Comme 	des 	Garcons, 	Ltd., 	84 	F.4th
110, 	113 	(2d 	Cir. 	2023). 	In 	view 	of 	Plaintiff’s 	pro 	se 	status,
the 	Court 	will 	consider, 	along 	with 	the 	Complaint, 	the 	factual
allegations in Plaintiff’s letter opposing Defendants’ pre-motion
conference 	letter 	regarding 	their 	then-anticipated 	motions 	to
dismiss. 	See 	Walker 	v. 	Schult, 	717 	F.3d 	119, 	122 	n.1 	(2d 	Cir.
2013); (ECF No. 110, “Pl.’s Opp.”)
I. 	Factual Background
On July 7, 2016, the New York City Police Department (“NYPD”)
received 	a 	911 	call 	reporting 	the 	armed 	robbery 	of 	a 	cellphone.
(Compl. 	at 	2.) 	Plainclothes 	NYPD 	officers 	investigating 	the
report--the Levy Defendants--approached Plaintiff’s vehicle, which
was parked seven blocks away from the site of the alleged robbery,
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with 	their 	guns 	drawn. 	(Id. 	at 	2-3.) 	Plaintiff 	drove 	away 	in
fear 	as 	the 	Levy 	Defendants 	pursued 	him 	in 	an 	unmarked 	vehicle.
(Id.) 	Although a supervising officer was in the process of calling
off 	the 	pursuit, 	the 	Levy 	Defendants 	rammed 	Plaintiff’s 	vehicle,
causing 	it 	to 	flip. 	(Id. 	at 	2-3, 	5-6.) 	The 	resulting 	collision
killed 	a 	motorist 	in 	a 	neighboring 	vehicle 	and 	injured 	a
pedestrian. (Id. at 3, 6.)
When 	the 	Levy 	Defendants 	extracted 	Plaintiff 	from 	his
vehicle, 	Plaintiff 	was 	drifting 	“in 	and 	out 	of 	consciousness.”
(Id. 	at 	3.) 	The 	officers 	arrested 	Plaintiff, 	searched 	his 	car,
and 	took 	him 	to 	a 	“holding 	pen,” 	where 	he 	was 	held 	for 	more 	than
twenty-four hours without medical treatment. 	(Id.)
On 	July 	8, 	2016, 	the 	day 	after 	the 	collision, 	Plaintiff 	was
arraigned in Queens County Criminal Court on eleven felony charges,
including murder in the second degree, assault in the first degree,
and 	robbery 	in 	the 	first 	degree. 	(Id. 	at 	4; 	see 	Compl. 	Ex. 	A.)
On 	July 	12, 	2016, 	Plaintiff 	received 	notice 	of 	a 	grand 	jury
summons. 	(Id. 	at 	4.) 	As 	will 	be 	discussed 	further, 	the 	Court
takes judicial notice of Plaintiff’s eventual guilty plea for first
degree 	assault 	and 	second 	degree 	manslaughter 	in 	connection 	with
the collision.
Plaintiff 	also 	claims 	that 	members 	of 	the 	NYPD 	and 	Queens
District 	Attorney’s 	Office 	took 	pictures 	of 	a 	cellphone 	in
Plaintiff’s 	car. 	(Id. 	at 	4-5.) 	The 	Complaint 	is 	vague 	about
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whether this cellphone was Plaintiff’s or the one allegedly stolen
in the armed robbery. (See id. at 5.) 	Although vouchers for seized
evidence 	are 	typically 	given 	upon 	request, 	a 	voucher 	for 	that
cellphone was not made available for Plaintiff’s inspection. 	(Id.)
II. 	Procedural Background
Plaintiff commenced the instant action on June 15, 2017. 	On
August 	7, 	2017, 	the 	City 	Defendants 	moved 	to 	stay 	Plaintiff’s
action until his criminal proceedings in state court were resolved.
(ECF 	No. 	11 	at 	2-3.) 	Magistrate 	Judge 	Lois 	Bloom 	granted 	the
motion to stay on October 5, 2017. 	(ECF No. 29.)
On January 14, 2020, Defendants asked Magistrate Judge Bloom
to 	lift 	the 	stay 	in 	this 	case 	after 	Plaintiff 	was 	convicted 	of
offenses arising from the July 7, 2016. 	(ECF No. 74.) 	Magistrate
Judge 	Bloom 	extended 	the 	stay 	on 	February 	19, 	2020 	given
Plaintiff’s 	intention 	to 	move 	to 	vacate 	his 	plea. 	(ECF 	No. 	77.)
Plaintiff 	was 	granted 	numerous 	stays 	in 	this 	case 	as 	he 	appealed
his 	convictions 	in 	New 	York’s 	appellate 	courts. 	(See 	Feb. 	10,
2023, 	May 	24, 	2023, 	Nov. 	28, 	2023, 	Mar. 	11, 	2024, 	July 	1, 	2024
Dkt. 	Orders.) 	The 	stay 	was 	lifted 	on 	September 	25, 	2024 	due 	to
“substantial 	delay 	. 	. 	. 	and 	uncertainties 	in 	. 	. 	. 	Plaintiff’s
appeal process.” 	(Sept. 25, 2024 Dkt. Order.)
On 	December 	2, 	2024, 	the 	City 	Defendants 	moved 	for 	a 	pre-
motion 	conference 	regarding 	their 	anticipated 	motion 	to 	dismiss.
(ECF 	No. 	103.) 	Plaintiff 	responded 	in 	opposition 	to 	the 	City
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Defendants’ 	pre-motion 	conference 	letter 	on 	December 	15, 	2024,
which was filed on January 8, 2025. 	(See Pl.’s Opp.)
On 	April 	25, 	2025, 	the 	City 	Defendants 	moved 	to 	dismiss 	the
Complaint 	(ECF 	No. 	114; 	ECF 	No. 	116, 	“City 	Mem.”), 	and 	the 	Levy
Defendants 	joined 	the 	City 	Defendants’ 	motion, 	(ECF 	No. 	119).
Plaintiff 	did 	not 	file 	any 	responses, 	and 	the 	Court 	deemed 	the
Defendants’ 	motions 	unopposed. 	(June 	25, 	2025 	Dkt. 	Order.) 	The
City 	Defendants 	submitted 	supplemental 	briefing 	regarding
Plaintiff’s 	excessive 	force 	claim 	on 	October 	31, 	2025. 	(ECF 	No.
127, “City Supp.”)
III. Extrinsic Evidence
In 	resolving 	a 	motion 	under 	Rule 	12(b)(6), 	the 	Court 	must
limit 	its 	consideration 	to 	the 	facts 	as 	asserted 	within 	the 	four
corners of the Complaint, documents incorporated by reference into
the 	Complaint, 	documents 	integral 	to 	the 	Complaint, 	and 	matters
properly 	subject 	to 	judicial 	notice. 	Clark 	v. 	Hanley, 	89 	F.4th
78, 93 (2d Cir. 2023) (quoting Goel v. Bunge, Ltd., 820 F.3d 554,
559 	(2d 	Cir. 	2016)). 	As 	is 	relevant 	here, 	the 	Court 	may 	take
judicial notice of “public records, including arraignments, arrest
reports . . . and 	certificates 	of 	disposition,” 	in 	deciding 	a
motion 	to 	dismiss. 	Burris 	v. 	Nassau 	Cnty. 	Dist. 	Att'y, 	2017 	WL
9485714, 	at 	*3 	(E.D.N.Y. 	Jan. 	12, 	2017) 	(internal 	quotations
omitted). 	Importantly, 	documents 	subject 	to 	judicial 	notice
cannot 	be 	used 	at 	the 	motion 	to 	dismiss 	stage 	for 	the 	“truth 	of
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the matters asserted therein.” James v. Bradley, 808 Fed. App’x 1,
3 (2d Cir. 2020) (summary order); Glob. Network Commc’ns, Inc. v.
City of New York, 458 F.3d 150, 157 (2d Cir. 2006). 	Rather, those
documents may only be used to establish the fact that they, or the
proceedings they reflect, exist. 	See Glob. Network Commc’ns, Inc.,
458 	F.3d 	at 	157 	(district 	court 	erred 	in 	using 	contents 	from
defendant-company 	CEO’s 	testimony 	in 	criminal 	proceeding 	as 	a
basis for its reasoning).
Pursuant to those principles, the Court takes judicial notice
of Plaintiff’s guilty pleas and convictions in state court for his
actions relating to his claims in this case. 	Plaintiff’s criminal
proceedings also form the basis of his § 1983 claims, so they are
both 	incorporated 	by 	and 	integral 	to 	the 	Complaint. 	See 	Matos 	v.
Discovery 	Commc’ns, 	LLC, 	750 	F. 	Supp. 	3d 	307, 	312-13 	(S.D.N.Y.
2024). 	For instance, Plaintiff’s falsification of evidence claim
directly pertains to the validity of evidence used in his criminal
proceedings. 	(See Compl. at 6-7.) 	Plaintiff also makes numerous
references 	to 	his 	criminal 	proceedings 	in 	the 	Complaint,
particularly 	in 	relation 	to 	the 	Queens 	Defendants 	presenting
evidence to a grand jury. 	(Id. at 11-12.)
As 	to 	what 	transpired 	in 	those 	state 	criminal 	proceedings,
Plaintiff 	pleaded 	guilty 	to 	and 	was 	convicted 	in 	state 	court 	for
first degree assault and second degree manslaughter. 	(See ECF No.
111-1 	at 	1.) 	On 	December 	9, 	2019, 	Plaintiff 	was 	sentenced 	to
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incarceration 	and 	post-release 	parole 	for 	his 	convictions. 	(See
id.) 	The 	New 	York 	Supreme 	Court 	Appellate 	Division, 	Second
Department denied Plaintiff’s application for leave to appeal his
convictions on June 9, 2023, rendering them final. 	See People v.
Perkins, 2023 WL 3914881 (N.Y. App. Div. June 9, 2023).
In 	considering 	Defendants’ 	motions, 	the 	Court 	declines 	to
take 	judicial 	notice 	of 	or 	otherwise 	consider 	the 	surveillance
video 	of 	the 	collision 	referenced 	in 	the 	Levy 	Defendants’ 	pre-
motion 	conference 	letter 	filing. 	(See 	ECF 	No. 	107.) 	To 	start,
the 	Complaint 	does 	not 	“attach[] . . . 	or 	incorporate[] 	by
reference” 	the 	video. 	Thomas 	v. 	Westchester 	Cnty. 	Health 	Care
Corp., 232 F. Supp. 2d 273, 275 (S.D.N.Y. 2002). 	Nor is the video
“integral” 	to 	the 	Complaint 	because 	Plaintiff 	does 	not 	“rel[y]
heavily upon” the video’s “effect.” 	Chambers v. Time Warner, Inc.,
282 	F.3d 	147, 	153 	(2d 	Cir. 	2002); 	Nat’l 	Acad. 	of 	Television 	Arts
& 	Scis., 	Inc. 	v. 	Multimedia 	Sys. 	Design, 	Inc., 	551 	F. 	Supp. 	3d.
408, 418 n.2 (S.D.N.Y. 2021); Friedl v. City of New York, 210 F.3d
79, 	83-84 	(2d 	Cir. 	2000) 	(“[A] 	district 	court 	errs 	when 	it
considers 	affidavits 	and 	exhibits 	submitted 	by 	defendants, 	or
relies 	on 	factual 	allegations 	contained 	in 	legal 	briefs 	or
memoranda 	in 	ruling 	on 	a 	12(b)(6) 	motion 	to 	dismiss.” 	(citation
modified)). 	At this stage, the surveillance video of the collision
is 	not 	properly 	before 	the 	Court. 	The 	Court 	now 	considers 	the
applicable legal standard for Defendants’ motions to dismiss.
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LEGAL STANDARD
Defendants 	move 	to 	dismiss 	the 	Complaint 	under 	Federal 	Rule
of Civil Procedure 12(b)(6) for failure to state a claim. 	In this
posture, 	courts 	must 	accept 	all 	well-pleaded, 	nonconclusory
factual 	allegations 	in 	the 	complaint 	as 	true. 	Ashcroft 	v. 	Iqbal,
556 	U.S. 	662, 	679 	(2009). 	To 	survive 	a 	motion 	to 	dismiss, 	a
complaint must plead sufficient facts to “state a claim to relief
that 	is 	plausible 	on 	its 	face.” 	Bell 	Atl. 	Corp. 	v. 	Twombly, 	550
U.S. 	544, 	570 	(2007). 	“A 	claim 	has 	facial 	plausibility 	when 	the
plaintiff pleads factual content that allows the court to draw the
reasonable 	inference 	that 	the 	defendant 	is 	liable 	for 	the
misconduct alleged.” 	Iqbal, 556 U.S. at 678. 	Courts, however, do
not need accept conclusory assertions as true. 	Id. at 678-79; see
Watson Lab’ys Inc. v. Forest Lab’ys, Inc., 101 F.4th 223, 235 n.5
(2d Cir. 2024).
As 	is 	relevant 	here, 	courts 	are 	“obliged 	to 	construe 	[a 	pro
se plaintiff’s] pleadings liberally, particularly when they allege
civil 	rights 	violations.” 	McEachin 	v. 	McGuinnis, 	357 	F.3d 	197,
200 	(2d 	Cir. 	2004) 	(citing 	Weinstein 	v. 	Albright, 	261 	F.3d 	127,
132 	(2d 	Cir. 	2001)). 	This 	obligation 	remains 	after 	Twombly.
Harris 	v. 	Mills, 	572 	F.3d 	66, 	72 	(2d 	Cir. 	2009). 	Applying 	these
principles, the Court turns to Defendants’ arguments.
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DISCUSSION
I. 	Plaintiffs’ Claims Against Queens Defendants Are Barred By
Absolute Immunity
Because absolute prosecutorial immunity would be dispositive
of 	the 	claims 	against 	the 	Queens 	Defendants, 	the 	Court 	considers
its 	applicability 	as 	a 	threshold 	matter. 	Prosecutors 	enjoy
absolute 	immunity 	when 	they 	act 	as 	advocates, 	including 	when
“initiating a prosecution and . . . presenting the State’s case.”
Imbler 	v. 	Pachtman, 	424 	U.S. 	409, 	431 	(1976); 	Zahrey 	v. 	Coffey,
221 F.3d 342, 346-47 (2d Cir. 2000); Shmueli v. City of New York,
424 F.3d 231, 236-37 (2d Cir. 2005). 	This remains true even when
that evidence is alleged to have been fabricated by law enforcement
officers. 	Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503 (2d Cir.
2004).
Conversely, 	prosecutors 	enjoy 	only 	qualified 	immunity 	when
they 	act 	as 	investigators. 	Though 	“[t]he 	line 	between 	a
prosecutor’s 	advocacy 	and 	investigating 	roles 	might 	sometimes 	be
difficult to draw,” Zahrey, 221 F.3d at 347, the question turns on
whether 	the 	challenged 	prosecutorial 	action 	took 	place 	before 	or
after prosecutors had probable cause to effect an arrest, see Hill
v. City of New York, 45 F.3d 653, 662 (2d Cir. 1995). 	For example,
prosecutors were deemed to have acted in their investigatory roles
when 	they 	fabricated 	evidence 	well 	in 	advance 	of 	a 	defendant’s
indictment by a grand jury. 	Buckley v. Fitzsimmons, 509 U.S. 259,
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275 (1993).
Here, 	the 	Complaint 	alleges 	that 	the 	Queens 	Defendants
introduced allegedly fabricated evidence to a grand jury, not that
they 	participated 	in 	the 	creation 	of 	that 	evidence. 	(See 	Compl.
at 11-12 (Queens Defendants “knowingly” participated in or allowed
the 	“introduction” 	of 	illegal 	evidence 	to 	a 	seated 	grand 	jury).)
Because prosecutors enjoy absolute immunity “for any misconduct in
the 	presentation 	of 	evidence 	to 	[] 	grand 	juries,” 	Bernard, 	356
F.3d at 505, the Court grants the motion to dismiss federal claims
against 	the 	Queens 	Defendants 	with 	prejudice 	and 	also 	dismisses
the 	intentional 	infliction 	of 	emotional 	distress 	claim 	alleged
against them for the same reason, Collins v. City of New York, 923
F. Supp. 2d 462, 479 (E.D.N.Y. 2013) (“Prosecutors’ immunity under
state 	law 	is 	identical 	to 	their 	immunity 	under 	§ 	1983.”). 	The
Court 	next 	considers 	the 	viability 	of 	the 	claims 	alleged 	against
the Officer and Levy Defendants.
II. 	Plaintiff’s Federal Claims Against Officer and Levy
Defendants
A. 	Applicability of the Favorable Termination Rule
Plaintiff brings federal claims under 42 U.S.C. § 1983 against
the remaining Defendants for false arrest, malicious prosecution,
excessive 	force, 	fabrication 	of 	evidence 	and 	conspiracy 	thereto,
and deprivation of medical care. 	Because convictions were entered
against 	Plaintiff 	in 	state 	court 	in 	relation 	to 	some 	of 	the
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underlying 	events, 	the 	favorable 	termination 	rule 	requires
dismissal of any § 1983 claims that imply the invalidity of those
convictions. 	Heck 	v. 	Humphrey, 	512 	U.S. 	477, 	487 	(1994). 	The
“[a]pplication of these principles requires the [C]ourt to examine
the 	relationship 	between 	the 	criminal 	conviction[s] 	and 	each 	of
the plaintiff’s civil claims.” 	Jackson v. Suffolk Cnty. Homicide
Bureau, 135 F.3d 254, 256 (2d Cir. 1998).
1. 	Count One: False Arrest
Defendants 	correctly 	argue 	that 	Plaintiff’s 	false 	arrest
claim 	is 	barred 	by 	Heck. 	(City 	Mem. 	at 	6.) 	Under 	New 	York 	law,
Plaintiff 	must 	allege 	the 	absence 	of 	probable 	cause 	to 	state 	a
claim 	for 	false 	arrest. 	Singer 	v. 	Fulton 	Cnty. 	Sheriff, 	63 	F.3d
110, 114, 118-19 (2d Cir.1995), cert. denied, 517 U.S. 1189 (1996);
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). 	He is,
however, 	precluded 	from 	doing 	so 	because 	his 	convictions 	for
manslaughter 	and 	assault 	conclusively 	establish 	the 	existence 	of
probable 	cause. 	Cameron 	v. 	Fogarty, 	806 	F.2d 	380, 	388 	(2d
Cir.1986), 	cert. 	denied, 	481 	U.S. 	1016 	(1987). 	The 	existence 	of
probable cause to arrest on any one charge forecloses false arrest
claims 	on 	all 	charges. 	Jaegly 	v. 	Couch, 	439 	F.3d 	149, 	152 	(2d
Cir. 2006). 	Plaintiff’s false arrest claim would thus necessarily
imply 	the 	invalidity 	of 	his 	state 	criminal 	proceedings 	and 	is
dismissed with prejudice. 	Singer, 63 F.3d at 118-19; Jean-Laurent
v. Hennessy, 2008 WL 3049875, at *8-9 (E.D.N.Y. Aug. 1, 2008) (Heck
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bars false arrest claim); Boston Ret. Sys. v. Telefonaktiebolaget
LM Ericsson, 2024 WL 4023842, at *6 (2d Cir. 2024) (summary order)
(“[F]urther amendments would have been futile given the inability
to cure the legal defects.”); Stegemann v. United States, 132 F.4th
206, 210 (2d Cir. 2025) (same).
2. 	Count Two: Malicious Prosecution
Unlike false arrest, claims for malicious prosecution proceed
on a charge-by-charge basis. 	Chiaverini v. City of Napoleon, Ohio,
602 	U.S. 	556, 	562-63 	(2024). 	In 	other 	words, 	Plaintiff 	could
successfully 	assert 	malicious 	prosecution 	as 	to 	one 	charge 	while
failing 	with 	respect 	to 	another. 	Id.; 	see 	also 	Posr 	v. 	Doherty,
944 F.2d 91, 100 (2d Cir. 1991). 	The Court finds that Plaintiff’s
malicious 	prosecution 	claim 	with 	respect 	to 	his 	manslaughter 	and
assault 	charges 	are 	Heck-barred, 	but 	that 	his 	claim 	with 	respect
to robbery is not.
“Malicious 	prosecution 	suits 	require, 	as 	an 	element 	of 	the
offense, 	‘the 	termination 	of 	the 	proceeding 	in 	favor 	of 	the
accused.’” 	Poventud 	v. 	City 	of 	New 	York, 	750 	F.3d 	121, 	130 	(2d
Cir. 	2014) 	(quoting 	Smith-Hunter 	v. 	Harvey, 	734 	N.E.2d 	750, 	752
(N.Y. 	2002)). 	Here, 	Plaintiff 	pleaded 	guilty 	to 	first 	degree
assault and second degree manslaughter, (see ECF No. 111-1 at 1),
and 	the 	state 	appellate 	court 	denied 	Plaintiff’s 	application 	to
appeal 	his 	convictions, 	see 	People 	v. 	Perkins, 	2023 	WL 	3914881
(N.Y. 	App. 	Div. 	June 	9, 	2023). 	Success 	on 	his 	malicious
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prosecution claims with respect to manslaughter and assault would
require those charges to have terminated in his favor, which they
did 	not. 	Plaintiff’s 	malicious 	prosecution 	claims 	as 	to
manslaughter 	and 	assault 	are 	thus 	barred 	by 	Heck 	and 	dismissed.
See 	O’Neal 	v. 	Spota, 	2017 	WL 	118044, 	at 	*3 	(E.D.N.Y. 	Jan. 	12,
2017).
In contrast, success on a malicious prosecution claim for the
charge 	of 	robbery 	in 	the 	first 	degree 	does 	not 	necessarily 	imply
the 	invalidity 	of 	Plaintiff’s 	state 	court 	convictions 	for 	other
crimes. 	To 	be 	sure, 	the 	malicious 	prosecution 	as 	to 	the 	robbery
charge 	is 	inartfully 	pleaded. 	But 	the 	Complaint, 	liberally
construed, 	does 	allege 	that 	Plaintiff’s 	vehicle 	was 	impounded 	by
events 	set 	forth 	by 	“an 	emergency 	911 	call 	stating 	that 	an
individual 	had 	been 	robbed 	at 	gunpoint 	for 	a 	cellphone” 	and 	also
argues that the failure to voucher the cellphone means it “cannot
be 	deemed 	evidence 	for . . . probable 	cause.” 	(Compl. 	at 	1, 	5);
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[H]owever inartfully
pleaded,” a pro se claim should not be dismissed unless it “appears
beyond 	doubt 	that 	the 	plaintiff 	can 	prove 	no 	set 	of
facts . . . which 	would 	entitle 	him 	to 	relief” 	(citation
omitted)). 	Although the ultimate disposition of the robbery charge
is unclear from the pleadings, the “favorable termination” element
of 	malicious 	prosecution 	does 	not 	require 	the 	charge 	to 	have
resolved 	with 	an 	“affirmative 	indication 	of 	innocence,” 	and
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instead 	merely 	requires 	that 	it 	“end[] 	without 	a 	conviction.”
Thompson v. Clark, 596 U.S. 36, 49 (2022). 	Plaintiff’s malicious
prosecution 	claim 	as 	to 	the 	first 	degree 	robbery 	charge 	is 	thus
not barred by Heck.
3. 	Count Three: 	Excessive Force
Plaintiff’s excessive force claim is not categorically Heck-
barred, 	though 	Plaintiff 	is 	precluded 	from 	pursuing 	certain
theories 	related 	to 	this 	claim. 	The 	usual 	presumption 	that 	an
“excessive force claim does not [] bear the requisite relationship
to the underlying conviction under Heck to require its dismissal”
is 	not 	straightforwardly 	applicable 	where, 	as 	here, 	Plaintiff’s
manslaughter conviction stems from the vehicular collision forming
the 	basis 	of 	his 	excessive 	force 	claims. 	Prioleau 	v. 	Caserta,
2012 	WL 	5389992, 	at 	*6 	(E.D.N.Y. 	Sept. 	12, 	2012) 	(internal
quotations 	omitted). 	In 	particular, 	having 	pleaded 	guilty 	to
“recklessly 	caus[ing] 	the 	death 	of 	another 	person,” 	Plaintiff 	is
barred 	from 	arguing 	that 	the 	alleged 	ramming 	by 	police 	was 	the
sole 	cause 	of 	the 	bystander-motorist’s 	death. 	N.Y. 	Penal 	Law 	§
125.15(1); 	People 	v. 	Hussain, 	221 	N.Y.S.3d 	746, 	752 	(N.Y. 	App.
Div. 2024) (a person “causes” the death of another when his conduct
is 	a 	“sufficiently 	direct 	cause” 	of 	that 	death). 	However, 	his
excessive force claim is not categorically Heck-barred because his
conviction 	does 	not 	require 	that 	his 	own 	reckless 	conduct 	be 	the
only cause of someone’s death. 	See Hussain, 221 N.Y.S.3d at 752.;
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Hamlin v. McMahon, 2019 WL 6619342, at *5-7 (D. Conn. Dec. 5, 2019)
(“[A]lthough 	Heck 	bars 	many 	of 	the 	theories 	under 	which 	the
plaintiff 	asserts 	his 	excessive 	force 	claim, 	the 	Heck 	doctrine
does 	not 	foreclose 	a 	claim 	of 	excessive 	force 	in 	its 	entirety”
because “a finding that the defendant officers used excessive force
. 	. 	. 	[in] 	striking 	the 	plaintiff 	from 	behind . . . would 	not
invalidate 	his 	conviction” 	of 	“causing 	death 	by 	increasing 	the
speed 	of 	his 	motor 	vehicle 	to 	evade 	the 	police”). 	Plaintiff’s
plea allocution for manslaughter may contain statements about what
precisely 	caused 	the 	manslaughter 	and 	eventually 	reveal 	that 	his
excessive 	force 	claim 	is 	Heck-barred. 	But, 	at 	the 	motion 	to
dismiss stage, the Court may not yet consider the contents of the
plea 	allocution 	for 	“the 	truth 	of 	the 	matters 	asserted.” 	Glob.
Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d
Cir. 	2006). 	Accordingly, 	Plaintiff’s 	excessive 	force 	claim
survives Heck.
4. 	Counts Four, Five, Six: 	Fabrication of Evidence,
Conspiracy to Fabricate Evidence, Deprivation of
Medical Care
Plaintiff’s fabrication of evidence, conspiracy to fabricate
evidence, 	and 	deprivation 	of 	medical 	care 	claims 	clearly 	do 	not
impugn 	the 	validity 	of 	his 	underlying 	convictions. 	First,
Plaintiff’s 	fabrication 	of 	evidence 	claims 	relate 	to 	the
unvouchered cellphone, which could have constituted evidence with
respect to the armed robbery but would have been irrelevant to his
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manslaughter 	or 	assault 	conviction. 	The 	same 	is 	true 	for 	his
conspiracy to fabricate evidence claim. 	Accordingly, Plaintiff’s
fabrication 	of 	evidence 	claims 	are 	not 	Heck-barred, 	given 	that
there is no underlying state conviction for robbery.
Plaintiff’s 	deprivation 	of 	medical 	care 	claim 	is 	similarly
attenuated 	from 	his 	convictions. 	See 	Jackson 	v. 	Cuomo, 	2022 	WL
310154, at *9 (S.D.N.Y. Feb. 2, 2022) (Plaintiff’s procedural due
process 	claim 	under 	Fourteenth 	Amendment 	not 	barred 	by 	Heck);
Poventud 	v. 	City 	of 	New 	York, 	750 	F.3d 	121, 	132 	(2d 	Cir. 	2014)
(“[M]any 	violations 	of 	constitutional 	rights, 	even 	during 	the
criminal 	process, 	may 	be 	remedied 	without 	impugning 	the 	validity
of 	a 	conviction.”) 	Plaintiff’s 	claims 	for 	malicious 	prosecution
for robbery, excessive force, fabrication of evidence, conspiracy
to 	fabricate 	evidence, 	and 	deprivation 	of 	medical 	care 	are 	not
barred by the favorable termination rule of Heck v. Humphrey.
B. 	Plaintiff’s Remaining Federal Claims
Although 	Counts 	Two 	through 	Six 	are 	not 	subject 	to 	Heck’s
favorable 	termination 	rule, 	all 	claims, 	except 	for 	excessive
force, 	must 	be 	dismissed 	for 	failure 	to 	state 	a 	plausible 	basis
for relief.
1. 	Count Two: 	Malicious Prosecution
To 	state 	a 	claim 	under 	§ 	1983 	for 	malicious 	prosecution 	on
the 	robbery 	charge, 	Plaintiff 	must 	allege 	“(1) 	the 	initiation 	or
continuation 	of 	a 	criminal 	proceeding 	against 	plaintiff; 	(2)
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termination 	of 	the 	proceeding 	in 	plaintiff’s 	favor; 	(3) 	lack 	of
probable cause for commencing the proceeding; and (4) actual malice
as 	a 	motivation 	for 	the 	defendant’s 	actions.” 	Dettelis 	v.
Sharbaugh, 919 F.3d 161, 163-64 (2d Cir. 2019) (internal quotations
omitted). 	In 	the 	Second 	Circuit, 	“initiation” 	means 	that 	the
defendant 	“play[ed] 	an 	active 	role 	in 	the 	prosecution, 	such 	as
giving advice and encouragement or importuning the authorities to
act.” 	Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir.
2010) 	(citing 	Rohman 	v. 	N.Y.C. 	Transit 	Auth., 	215 	F.3d 	208, 	217
(2d Cir. 2000)). 	A defendant does so when he “file[s] the charges”
or 	“prepare[s] 	an 	alleged 	false 	confession 	and 	forward[s] 	it 	to
prosecutors.” 	Manganiello, 	612 	F.3d 	at 	163. 	The 	Complaint
adequately alleges that Defendant Joseph Solomon filed the felony
complaint, 	(Compl. 	at 	4), 	but 	fails 	to 	allege 	any 	facts
demonstrating 	that 	any 	of 	the 	other 	remaining 	Defendants
“initiated” the prosecution. See McDaniel v. City of New York, 585
F. 	Supp. 	3d 	503, 	517-18 	(S.D.N.Y. 	2022) 	(dismissing 	malicious
prosecution 	for 	failure 	to 	allege 	“initiation” 	of 	proceedings 	by
defendants), 	report 	and 	recommendation 	adopted, 	2022 	WL 	874769
(S.D.N.Y. Mar. 24, 2022).
The claim for malicious prosecution must be dismissed for an
additional 	reason. 	Plaintiff 	fails 	to 	plead 	facts 	showing 	that
Defendants, 	including 	Defendant 	Solomon, 	both 	“lack[ed] 	. 	. 	.
probable cause for commencing the proceeding,” Dettelis, 919 F.3d
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at 	164, 	and 	acted 	with 	“actual 	malice,” 	Manganiello, 	612 	F.3d 	at
163-64. 	The 	latter 	deficiency 	is 	downstream 	of 	the 	former. 	In
the Second Circuit, a “lack of probable cause generally creates an
inference of malice.” 	See id. at 163 (citing Boyd v. City of New
York, 	336 	F.3d 	72, 	78 	(2d 	Cir. 	2003). 	“Probable 	cause, 	in 	the
context 	of 	malicious 	prosecution” 	requires 	“facts 	and
circumstances as would lead a reasonably prudent person to believe
the 	plaintiff 	guilty.” 	Boyd, 	336 	F.3d 	at 	76 	(citation 	omitted).
Conversely, 	a 	lack 	of 	probable 	cause 	can 	be 	shown 	through
allegations that defendants “became aware” of exculpatory evidence
or any “intervening facts” tending to contradict the probable cause
determination. 	Jackson v. Nassau Cnty., 552 F. Supp. 3d 350, 372-
73 	(E.D.N.Y. 	2021) 	(internal 	quotations 	omitted); 	Shabazz 	v.
Kailer, 201 F. Supp. 3d 386, 394 (S.D.N.Y. 2016).
The 	linchpin 	of 	Plaintiff’s 	malicious 	prosecution 	claim 	is
the 	alleged 	failure 	to 	voucher 	a 	cellphone. 	Notably, 	Plaintiff
does not allege that the cellphone was planted by any defendant to
manufacture 	probable 	cause 	for 	the 	robbery 	charge, 	or 	even 	that
the 	cellphone 	was 	his 	and, 	thus, 	not 	the 	stolen 	property 	giving
rise to the robbery investigation in the first instance. 	Instead,
the 	Complaint 	becomes 	exceedingly 	vague 	and 	unintelligible 	when
describing 	the 	unvouchered 	cellphone, 	or 	what 	exactly 	the
Defendants 	did 	or 	failed 	to 	do 	that 	states 	a 	constitutional
violation. 	Although the Court must give credit to the Plaintiff’s
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well-pleaded 	factual 	allegations, 	there 	are 	no 	set 	of 	facts 	the
Court 	can 	cobble 	together 	to 	“nudge[]” 	the 	malicious 	prosecution
claim 	“across 	the 	line 	from 	conceivable 	to 	plausible.” 	Bell 	Atl.
Corp. 	v. 	Twombly, 	550 	U.S. 	544, 	570 	(2007). 	Accordingly, 	the
malicious prosecution claim is dismissed without prejudice.
2. 	Count Three: 	Excessive Force
As 	an 	initial 	matter, 	Plaintiff 	only 	alleges 	that 	the 	Levy
Defendants 	rammed 	into 	his 	vehicle, 	so 	he 	fails 	to 	plead 	an
excessive 	force 	claim 	with 	respect 	to 	the 	Officer 	Defendants.
Demosthene 	v. 	City 	of 	New 	York, 	831 	Fed. 	App’x 	530, 	535 	(2d 	Cir.
2020) 	(summary 	order) 	(requiring 	allegations 	of 	personal
involvement 	to 	state 	a 	claim 	for 	excessive 	force); 	May 	v. 	Levy,
659 	F. 	Supp. 	3d 	323, 	337 	(E.D.N.Y. 	2023); 	(see 	Compl. 	at 	3, 	14;
Pl.’s 	Opp. 	at 	1.) 	Those 	claims 	are 	thus 	dismissed 	without
prejudice.
As is well-established, “[t]he Fourth Amendment prohibits the
use 	of 	unreasonable 	and 	therefore 	excessive 	force 	by 	a 	police
officer 	in 	the 	course 	of 	effecting 	an 	arrest.” 	Tracy 	v.
Freshwater, 	623 	F.3d 	90, 	96 	(2d 	Cir. 	2010) 	(citation 	omitted).
The 	officers’ 	conduct 	must 	be 	“objective[ly] 	reasonable,” 	the
assessment of which requires a “balancing [between] the nature and
quality 	of 	the 	intrusion 	on 	the 	plaintiff’s 	Fourth 	Amendment
interests 	against 	the 	countervailing 	governmental 	interests 	at
stake.” 	Id. (citing Amnesty Am. v. Town of W. Hartford, 361 F.3d
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113, 	123 	(2d 	Cir. 	2004)). 	That 	balancing 	is 	guided 	by 	“at 	least
three factors: (1) the nature and severity of the crime leading to
the 	arrest, 	(2) 	whether 	the 	suspect 	poses 	an 	immediate 	threat 	to
the 	safety 	of 	the 	officer 	or 	others, 	and 	(3) 	whether 	the 	suspect
was 	actively 	resisting 	arrest 	or 	attempting 	to 	evade 	arrest 	by
flight.” 	Id. (citing Graham v. Connor, 490 U.S. 386, 395 (1989);
Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006)). 	This inquiry
is 	“intensely 	factual” 	and 	“generally 	best 	left 	for 	a 	jury 	to
decide.” 	Oakley v. Dolan, 980 F.3d 279, 284 (2d Cir. 2020); Ayers
v. Suffolk Cnty. Dist. Att'y Off., 2022 WL 4539580, at *4 (E.D.N.Y.
Sept. 28, 2022) (“Given the fact-specific nature of the inquiry on
an 	excessive 	force 	claim, 	such 	claims 	are 	often 	not 	amenable 	to
early resolution.” (internal quotations omitted)).
Defendants 	argue 	that 	the 	excessive 	force 	claims 	should 	be
dismissed because “Plaintiff’s own allegations establish that the
collision[] 	of 	the 	vehicles 	was 	objectively 	reasonable 	and
necessary in light of his admitted reckless driving.” 	(City Supp.
at 	1.) 	But 	the 	Court 	finds 	no 	indication 	on 	the 	face 	of 	the
Complaint that Plaintiff was driving so recklessly that the alleged
ramming can only be found to be “objectively reasonable.” 	Graham,
490 	U.S. 	at 	399. 	Instead, 	the 	Complaint 	merely 	states 	that 	two
men in plainclothes approached him with their guns drawn, that he
subsequently 	drove 	away 	in 	fear, 	that 	the 	armed 	men 	continued 	to
follow him in an unmarked vehicle and then rammed into Plaintiff’s
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car. (Compl. at 3.)
Defendants 	urge 	the 	Court 	to 	consider 	the 	“sworn 	criminal
complaint, 	attached 	to 	the 	pleadings” 	which 	“reveals 	that 	police
pursued Plaintiff with their lights and sirens activated” and that
Plaintiff 	was 	driving 	over 	“twenty-five 	miles 	per 	hour 	over 	the
posted 	speed 	limit.” 	(City 	Supp. 	at 	4-5.) 	But 	documents, 	even
those 	attached 	to 	the 	Complaint, 	may 	only 	be 	used 	“to 	determine
what [they] state” and “not to prove the truth of their contents.”
Roth 	v. 	Jennings, 	489 	F.3d 	499, 	509 	(2d 	Cir. 	2007) 	(emphasis
omitted). 	“A 	plaintiff 	does 	not 	necessarily 	‘adopt 	as 	true 	the
full 	contents 	of 	any 	document 	attached 	to 	a 	complaint 	or 	adopted
by reference.’” 	Pearson v. Gesner, 125 F.4th 400, 406-08 (2d Cir.
2025) 	(emphasis 	in 	original) 	(citing 	Gant 	v. 	Wallingford 	Bd. 	of
Edu., 	69 	F.3d 	669, 	674 	(2d 	Cir. 	1995). 	This 	is 	especially 	true
when 	such 	a 	document 	was 	“prepared 	by 	or 	for 	the 	defendant,”
because 	they 	may 	reflect 	“defendant’s 	version 	of 	contested
events . . . that 	are 	unlikely 	to 	have 	been 	adopted 	by 	the
plaintiff.” 	Id. 	(internal 	quotations 	omitted). 	The 	Court 	may
consider 	the 	contents 	of 	the 	criminal 	complaint 	only 	when 	the
Plaintiff 	makes 	allegations 	about 	“what” 	the 	criminal 	complaint
does 	or 	does 	not 	say. 	Roth, 	489 	F.3d 	at 	510 	(documents 	may 	only
be 	considered 	when 	plaintiffs 	“allege[] 	that 	the 	document
contains, 	or 	does 	not 	contain, 	certain 	statements”). 	Plaintiff
has 	not 	done 	so 	here, 	so 	the 	Court 	declines 	to 	consider 	the
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contents 	of 	the 	criminal 	complaint 	for 	the 	“truth 	of 	the 	matters
asserted.” Id. at 509. 2
The 	Court 	also 	declines 	to 	deem 	Plaintiff’s 	guilty 	plea 	for
second 	degree 	manslaughter--meaning 	“recklessly 	caus[ing] 	the
death of another person”--as dispositive to dismiss the excessive
force 	claim. 	N.Y. 	Penal 	Law 	§ 	125.15(1). 	The 	existence 	of
reckless conduct does not afford officers carte blanche to employ
any amount of force, and the Fourth Amendment still requires facts
showing 	that 	the 	force 	be 	“objectively 	reasonable.” 	See 	Graham,
490 U.S. at 399.
The Levy Defendants secondarily argue that they are entitled
to 	qualified 	immunity, 	which 	“shields 	officers 	from 	civil
liability 	so 	long 	as 	their 	conduct 	does 	not 	violate 	clearly
established 	statutory 	or 	constitutional 	rights 	of 	which 	a
reasonable person would have known.” 	City of Tahlequah, Okla. v.
Bond, 	595 	U.S. 	9, 	12 	(2021) 	(internal 	quotations 	omitted); 	(see
City Supp. at 708). 	In support, the Levy Defendants cite Scott v.
Harris, a Supreme Court case they argue is “nearly[] identical” to
the 	ramming 	here, 	given 	that 	police 	had 	“activated 	their 	lights
and sirens” while pursuing a suspect who “dr[ove] over twenty-five
miles 	over 	the 	speed 	limit.” 	(City 	Supp. 	at 	8.) 	Defendants 	are
2 	The 	Court 	similarly 	declines 	to 	consider 	the 	descriptions 	of 	Plaintiff’s
driving in Exhibit E of the Complaint. 	Staehr v. Hartford Fin. Servs. Grp.,
Inc., 547 F.3d 406, 425 (2d Cir. 2008) (courts may consider “fact that press
coverage . . . contained certain information, without regard to the truth of
their contents”(emphasis in original)).
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correct that the pursuit at the center of Scott v. Harris featured
“blue 	lights 	flashing 	and 	sirens 	blaring” 	and 	a 	suspect 	who
“intentionally 	placed 	himself 	and 	the 	public 	in 	danger 	by
unlawfully engaging in the reckless, high-speed flight,” but such
facts have not yet been established in the instant case. 	550 U.S.
372, 	384 	(2007) 	(considering 	the 	issue 	of 	qualified 	immunity 	on
summary 	judgment). 	The 	allegations 	on 	the 	face 	of 	the 	Complaint
are sufficient to state a claim for excessive force and dismissal
prior to further factual discovery would be premature. 	See Shamir
v. City of New York, 804 F.3d 553, 556-57 (2d Cir. 2015) (arrestee
adequately stated claim for use of excessive force where he alleged
that 	officer 	“intentionally 	tightened 	[zip-tie 	handcuffs]
excessively, 	causing 	injury 	to 	[arrestee’s] 	lower 	arms”); 	Ayers,
2022 	WL 	4539580, 	at 	*4. 	Accordingly, 	the 	Court 	denies 	the 	Levy
Defendants’ motion to dismiss the excessive force claim.
3. 	Counts Four, Five: 	Fabrication of Evidence and
Conspiracy to Fabricate Evidence
A plaintiff “may sue for denial of the right to a fair trial
based on a police officer's fabrication of information . . . when
the information fabricated is the officer’s own account of his or
her 	observations 	of 	alleged 	criminal 	activity, 	which 	he 	or 	she
then conveys to a prosecutor.” Garnett v. Undercover Officer C0039,
838 	F.3d 	265, 	274 	(2d 	Cir. 	2016). 	As 	is 	relevant 	here, 	a 	claim
for 	fabrication 	of 	evidence 	with 	respect 	to 	one 	charge 	could 	be
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sustained 	even 	if 	Plaintiff 	was 	“charged, 	detained, 	tried, 	and
convicted for a separate offense.” 	Barnes v. City of New York, 68
F.4th 123, 129-30 (2d Cir. 2023). 	When pleading a fabrication of
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[ed] 	a
deprivation 	of 	life, 	liberty, 	or 	property 	as 	a 	result.’”
Carruthers 	v. 	Colton, 	153 	F.4th 	169, 	189 	(2d 	Cir. 	2025) 	(quoting
Garnett, 838 F.3d at 279). “The fabrication element requires only
that the defendant knowingly make a false statement or omission.”
Id. 	(quoting 	Ashley 	v. 	City 	of 	N.Y., 	992 	F.3d 	128, 	143 	(2d 	Cir.
2021)).
The 	Complaint 	falls 	short 	of 	the 	pleading 	requirements 	for
fabrication 	of 	evidence. 	Fatally, 	the 	complaint 	does 	not 	allege
that the Officer and Levy defendants fabricated evidence likely to
influence 	a 	jury’s 	verdict, 	or 	even 	that 	they 	manufactured 	the
evidence at all. 	Instead, Plaintiff alleges only that Defendants
failed 	to 	voucher 	the 	allegedly 	robbed 	cell 	phone, 	and 	that 	they
tampered 	with 	or 	destroyed 	unspecified 	physical 	evidence
concerning 	that 	phone. 	(See 	e.g., 	Compl. 	at 	5-8 	(alleging
Defendant Phelan conspired to “tamper[] with and destroy” evidence
“concerning 	an 	[unvouchered] 	cell 	phone 	which 	had 	been 	described
as 	being 	found 	in 	[vouchered] 	vehicle”).) 	Accordingly,
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Plaintiff’s 	fabricated 	evidence 	claim 	is 	dismissed 	without
prejudice. 	The conspiracy to fabricate evidence claim is likewise
dismissed without prejudice for lack of a predicate constitutional
violation. 	Singer 	v. 	Fulton 	Cnty. 	Sheriff, 	63 	F.3d 	110, 	119 	(2d
Cir. 1995).
4. 	Count Six: 	Deprivation of Medical Care
The 	Due 	Process 	Clause 	of 	the 	Fourteenth 	Amendment
“require[s] 	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. 	Mass. 	Gen.
Hosp., 463 U.S. 239, 244 (1983). 3 	To state a claim for “deprivation
of 	adequate 	medical 	care,” 	Plaintiff 	must 	allege 	that 	the
deprivation 	was 	“sufficiently 	serious” 	and 	that 	the 	defendant
acted 	with 	a 	“sufficiently 	culpable 	state 	of 	mind.” 	Davis 	v.
McCready, 284 F. Supp. 3d. 108, 116 (S.D.N.Y. 2017).
Plaintiff 	alleges 	that 	he 	was 	“in 	and 	out 	of 	consciousness”
at 	the 	time 	of 	his 	arrest 	and 	that, 	post-arrest, 	he 	was 	held
“without 	medical 	treatment” 	for 	more 	than 	twenty-four 	hours.
(Compl. 	at 	3-4.) 	Although 	the 	allegations 	clearly 	show 	that 	the
collision 	was 	catastrophic, 	Plaintiff 	fails 	to 	allege 	facts
3 “A pretrial detainee’s claim for deliberate indifference is evaluated under
the 	Due 	Process 	Clause 	of 	the 	Fourteenth 	Amendment 	rather 	than 	the 	Eighth
Amendment, as ‘pretrial detainees have not been convicted of a crime and thus
may not be punished in any manner—neither cruelly and unusually nor otherwise.’”
Davis v. McCready, 283 F. Supp. 3d 108, 116 (S.D.N.Y. 2017) (citing Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)).
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showing 	that 	the 	deprivation 	of 	medical 	care 	was 	“sufficiently
serious” and that he was inflicted by “a condition of urgency that
may result in degeneration or extreme pain.” Chance v. Armstrong,
143 	F.3d 	698, 	702 	(2d 	Cir. 	1998) 	(citation 	omitted) 	(describing
standard for Eighth Amendment deprivation of medical care claim);
Caiozzo 	v. 	Koreman, 	581 	F.3d 	63, 	69 	(2d 	Cir. 	2009) 	(claims 	for
deprivation 	of 	medical 	care 	arising 	under 	Eighth 	and 	Fourteenth
Amendments 	are 	evaluated 	using 	the 	same 	standard). 	Nor 	does
Plaintiff 	allege 	that 	the 	Officer 	or 	Levy 	Defendants 	“recklessly
failed 	to 	act 	with 	reasonable 	care . . . even 	though 	the
defendant . . . knew, 	or 	should 	have 	known, 	that 	the 	condition
posed 	an 	excessive 	risk 	to 	health 	or 	safety.” 	Maldonado 	v. 	Town
of 	Greenburgh, 	460 	F. 	Supp. 	3d 	382, 	396 	(S.D.N.Y. 	2020) 	(citing
Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)). 	Plaintiff’s
deprivation of medical care claim is dismissed without prejudice.
III. Plaintiff’s State Law Claim Against Officer and Levy
Defendants
The Court next turns to Plaintiff’s intentional infliction of
emotional distress claim. 	“Where state law claims are joined with
another 	claim 	over 	which 	federal 	courts 	have 	subject 	matter
jurisdiction and the state law claims arise out of a common nucleus
of operative fact, the district court has jurisdiction to hear the
state 	law 	claims.” 	Khan 	v. 	Costco 	Wholesale, 	Inc., 	2001 	WL
1602168, 	at 	*9 	(E.D.N.Y. 	Dec. 	13, 	2001) 	(citing 	Robison 	v. 	Via,
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821 	F.2d 	913, 	925 	(2d 	Cir. 	1987)). 	Notably, 	the 	Court’s 	ability
to 	exercise 	its 	supplemental 	jurisdiction 	over 	all 	defendants
remains 	even 	though 	only 	the 	excessive 	force 	claim 	against 	the
Levy 	Defendants 	survives. 	Ciambriello 	v. 	Cnty. 	of 	Nassau, 	292
F.3d 	307, 	325 	(2d 	Cir. 	2002); 	Briarpatch 	Ltd., 	L.P. 	v. 	Phoenix
Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004). 	In the instant
case, 	the 	facts 	underlying 	both 	Plaintiff’s 	federal 	claims 	and
intentional infliction of emotional distress claim are one and the
same. 	As 	such, 	the 	Court 	will 	exercise 	its 	supplemental
jurisdiction to consider Plaintiff’s state law claim. 	See Stapon
v. 	Riverhead 	Cent. 	Sch. 	Dist., 	2021 	WL 	12319295, 	at 	*8 	(E.D.N.Y.
Apr. 5, 2021).
1. 	Failure to File a Notice of Claim
As 	an 	initial 	matter, 	the 	Court 	notes 	that 	Plaintiff 	has
failed to plead that he served a timely Notice of Claim, which is
generally 	required 	when 	asserting 	claims 	against 	a 	municipal
entity or its employees. 	N.Y. Gen. Mun. Law § 50-e, 50-I; King v.
City 	of 	New 	York, 	2019 	WL 	5653856, 	at 	*4-5 	(E.D.N.Y. 	Mar. 	28,
2019); 	see 	Hardy 	v. 	NYC 	Health 	& 	Hosp. 	Corp., 	164 	F.3d 	789, 	793
(2d 	Cir. 	1999) 	(“[I]n 	a 	federal 	court, 	state 	notice-of-claim
statutes 	apply 	to 	state-law 	claims.” 	(emphasis 	omitted)).
Plaintiff’s 	failure 	to 	plead 	his 	adherence 	with 	§ 	50-e 	and 	50-i
bars 	claims 	against 	the 	Defendants 	in 	their 	official 	capacities
outright, as well as in their individual capacities if the City is
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required to indemnify them for their losses. 	Johnson v. Cnty. of
Nassau, 	2014 	WL 	4700025, 	at 	*24 	(E.D.N.Y. 	Sept. 	22, 	2014)
(requirements of § 50-e and 50-I are “not conditions precedent to
the commencement of an action against a [city employee] unless the
[city] is required to indemnify such person” (citations omitted)).
General 	Municipal 	Law 	§ 	50-k(3) 	mandates 	the 	City’s
indemnification 	when 	its 	employee’s 	liability 	(1) 	“arose 	from
conduct within the scope of his employment and in the discharge of
his duties,” as long as (2) “the employee was not in violation of
any rule or regulation of his agency” and (3) “the injury did not
result from intentional wrongdoing or recklessness on the part of
the 	employee.” 	Kavazanjian 	v. 	Rice, 	2008 	WL 	5340988, 	at 	*6
(E.D.N.Y. Dec. 22, 2008) (citation omitted).
As to the first requirement, the Court finds that the Officer
and Levy Defendants were plainly acting within the scope of their
employment. 	In considering this question, the Court weighs factors
including 	“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.” 	Pizzuto 	v. 	City 	of 	Nassau,
239 	F. 	Supp. 	2d 	301, 	313 	(E.D.N.Y. 	2003) 	(internal 	quotations
omitted). 	Plaintiff 	alleges 	that 	Defendants’ 	misconduct 	arose
from 	their 	performance 	of 	official 	duties, 	including 	making
arrests 	and 	gathering 	evidence. 	See 	Dorsey 	v. 	City 	of 	Albany
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Police 	Dep’t, 	2016 	WL 	11605138, 	at 	*2-3 	(N.D.N.Y. 	Apr. 	13, 	2016)
(defendant 	would 	be 	indemnified 	for 	conduct 	alleged 	to 	have
constituted 	excessive 	force 	because 	he 	was 	“on 	duty, 	making 	an
arrest with other police officers, and driving a police vehicle”).
However, the Court finds it premature to decide at this stage
whether 	the 	Defendants 	“w[ere] 	not 	in 	violation 	of 	any 	rule 	or
regulation 	of 	[their] 	agency” 	or 	that 	“the 	injury 	or 	damage” 	did
not 	result 	“from 	intentional 	wrongdoing 	or 	recklessness.” 	Gen.
Municipal 	Law 	§ 	50-k(3); 	Kavazanjian 	, 	2008 	WL 	5340988, 	at 	*6.
Indeed, 	Plaintiff 	has 	alleged 	that 	a 	supervising 	officer 	at 	the
NYPD 	was 	in 	the 	process 	of 	calling 	off 	the 	pursuit 	and 	that 	the
ramming of his vehicle may have violated internal NYPD guidelines.
(Compl. 	at 	5-6; 	see 	also 	Pl.’s 	Opp.). 	Furthermore, 	the 	tort, 	if
proven, 	“would, 	by 	definition,” 	reflect 	conduct 	“constitut[ing]
intentional 	wrongdoing.” 	Kavazanjian, 	2008 	WL 	5340988, 	at 	*6
(citation omitted) (declining to dismiss intentional tort claims,
including 	intentional 	infliction 	of 	emotional 	distress, 	as
procedurally 	barred 	by 	plaintiff’s 	failure 	to 	file 	a 	Notice 	of
Claim); Jean-Laurent v. Hennessy, 2008 WL 3049875, at *19 (E.D.N.Y.
Aug. 1, 2008) (collecting cases). 	But see Perez v. Cnty of Nassau,
294 	F. 	Supp. 	2d 	386, 	391 	(E.D.N.Y. 	2003) 	(dismissing 	state 	law
claims 	for 	false 	arrest, 	malicious 	prosecution, 	assault, 	and
battery 	for 	failure 	to 	plead 	the 	filing 	of 	the 	notice 	of 	claim).
Accordingly, 	the 	Court 	finds 	that 	Plaintiff’s 	failure 	to 	file 	a
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notice 	of 	claim 	does 	not 	procedurally 	bar 	his 	intentional
infliction of emotional distress claim.
2. 	Intentional Infliction of Emotional Distress
Defendants 	incorrectly 	argue 	that 	Plaintiff’s 	claim 	for
intentional 	infliction 	of 	emotional 	distress 	is 	duplicative 	of
other 	causes 	of 	action 	in 	his 	complaint 	and 	should 	be 	dismissed.
(City 	Mem. 	at 	19.) 	Plaintiff 	brings 	no 	other 	state 	law 	tort
claims, so his claim cannot be duplicative of them. 	Moore v. City
of 	New 	York, 	219 	F. 	Supp. 	2d 	335, 	339 	(E.D.N.Y. 	2002) 	(“The 	New
York 	Court 	of 	Appeals 	has 	strongly 	cautioned 	against 	allowing
emotional distress claims to be brought where other tort remedies
are 	available.” 	(emphasis 	added) 	(citing 	Fischer 	v. 	Maloney, 	373
N.E.2d 1215 (1978))).
“Under 	New 	York 	law, 	a 	claim 	for 	intentional 	infliction 	of
emotional distress requires a showing of (1) extreme and outrageous
conduct; 	(2) 	intent 	to 	cause, 	or 	reckless 	disregard 	of 	a
substantial probability of causing, severe emotional distress, (3)
a 	causal 	connection 	between 	the 	conduct 	and 	the 	injury; 	and 	(4)
severe emotional distress.” 	Stuto v. Fleishman, 164 F.3d 820, 827
(2d Cir. 1999). 	Plaintiff has failed to allege sufficient facts
regarding 	each 	of 	these 	elements, 	including 	that 	the 	misconduct
was 	“so 	outrageous . . . as 	to 	go 	beyond 	all 	possible 	bounds 	of
decency . . . and 	utterly 	intolerable 	in 	a 	civilized 	society” 	or
that 	Defendants 	intended 	to 	cause 	him 	severe 	emotional 	distress.
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Id. 	Accordingly, Plaintiff’s intentional infliction of emotional
distress claim is dismissed without prejudice.
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss are
GRANTED IN PART and DENIED IN PART as follows.
(1) 	Counts One through Seven are DISMISSED WITH PREJUDICE as
to 	Defendants 	Michelle 	Kaszuba, 	Crystal 	Igneri, 	Denise
Tirino;
(2) 	Count One (False Arrest) is DISMISSED WITH PREJUDICE as
to 	Defendants 	Joseph 	Solomon, 	Emanuel 	Vizzotti, 	Salvatore
Taorimina, 	Charles 	Lovett, 	Kevin 	Phelan, 	Joseph 	Manzella,
Kevin Hammerschlog, Matthew Levy, and Paul Kearon;
(3) 	Counts Two (Malicious Prosecution), Four (Fabrication of
Evidence), 	Five 	(Conspiracy 	to 	Fabricate 	Evidence), 	Six
(Deprivation 	of 	Medical 	Care), 	and 	Seven 	(Intentional
Infliction 	of 	Emotional 	Distress) 	are 	DISMISSED 	WITHOUT
PREJUDICE as to Defendants Joseph Solomon, Emanuel Vizzotti,
Salvatore 	Taorimina, 	Charles 	Lovett, 	Kevin 	Phelan, 	Joseph
Manzella, Kevin Hammerschlog, Matthew Levy, and Paul Kearon;
(4) 	Count 	Three 	(Excessive 	Force) 	is 	DISMISSED 	WITHOUT
PREJUDICE as to Defendants Joseph Solomon, Emanuel Vizzotti,
Salvatore 	Taorimina, 	Charles 	Lovett, 	Kevin 	Phelan, 	Joseph
Manzella, Kevin Hammerschlog;
(5) 	Count Three (Excessive Force) proceeds as to Defendants
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Matthew Levy and Paul Kearon.
Defendants are ordered to serve Plaintiff and note service on
the docket by close of business on February 26, 2026. 	On or before
March 27, 2026, Plaintiff may file an amended complaint addressing
the 	deficiencies 	identified 	herein 	with 	respect 	to 	any 	claims
dismissed 	without 	prejudice, 	consistent 	with 	this 	Opinion.
Failure 	to 	file 	an 	amended 	complaint 	by 	that 	date 	will 	result 	in
dismissal of those claims with prejudice and without further leave
to amend.
So ordered.
Dated: 	February 25, 2026
Brooklyn, New York
_______________________________
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
____	__	__	__	__	__	__	__	__	__	___________________
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