Harrison v. Detective Sanchez, et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
TONY HARRISON,
Plaintiff,
REPORT & RECOMMENDATION
-against-
96-CV-1465 (PKC) (SDE)
DETECTIVE SANCHEZ, DETECTIVE SGT.
KENNEDY, 	DETECTIVE 	MULHALL,
CORRECTIONAL 	OFFICER, 	HODGE,
CORRECTIONAL 	OFFICER, 	STEWARD,
ET. AL. [sic],
Defendants.
---------------------------------------------------------- X
SETH D. EICHENHOLTZ, United States Magistrate Judge:
Pro se Plaintiff Tony Harrison brings claims of deliberate indifference and excessive force
against New York City Police Department Detectives Sanchez, Kennedy, and Mulhall; and claims
of excessive force against Department of Correction Officers Hodge and Steward in connection
with Plaintiff’s arrest and prosecution in 1995 and 1996. 	Presently before the undersigned, on
referral from the Honorable Pamela K. Chen, United States District Judge, is Defendants Sanchez,
Kennedy, and Mulhall’s motion to dismiss the Second Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). For the reasons explained below, the undersigned respectfully
recommends Defendants’ motion be granted, except as to Plaintiff’s claim that Defendant Sanchez
used excessive force to obtain a court-authorized blood sample.
BACKGROUND
I. 	Factual Background
The undersigned assumes Plaintiff’s allegations are true for purposes of this motion. See
infra p. 7. Plaintiff is currently an inmate at Sing Sing Correctional Facility serving a minimum
250-year sentence for rape and related crimes. 	(See Second Amended Complaint, (“2d Am.
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Compl.”), Dkt. No. 46, p. 5.) 	The Second Amended Complaint describes Plaintiff’s arrest by
Defendants New York City Police Department (“NYPD”) Detectives Sanchez, Mulhall, and
Kennedy on the morning of September 16, 1995. (See 2d Am. Compl. p. 2.) Plaintiff was arrested
after these Defendants accused him of following a woman near Prospect Park, Brooklyn, where a
series of sexual assaults had been committed between November 1994 and June 1995. (See id.)1
After Defendants transported Plaintiff to the 71st Precinct and placed him in a holding cell,
he alleges that he could not take medication to treat a “mild seizure disorder” and, as a result, he
became sick and lost consciousness. (Id. p. 2.) Plaintiff says that when he regained consciousness,
Defendants Sanchez, Mulhall, and Kennedy rejected EMS workers’ recommendation to take him
to the hospital because they did not want to delay conducting line-ups. (Id. p. 3.) After conducting
line-ups, officials with the NYPD announced Plaintiff’s arrest as a suspect in their investigation of
the assaults. (See id.) Plaintiff alleges that denying him the ability to take his medication or take
him to the hospital prior to the lineups was done with deliberate indifference to his serious medical
needs. (See Plaintiff’s Opposition to Defendant’s Motion to Dismiss (“Pl. Opp.”), Dkt. No. 110,
pp. 8–9.)
Plaintiff was arraigned in Kings County Supreme Court and indicted in connection with
two assaults. 	(See id. p. 4.) 	In prior pleadings, Plaintiff explained that the Assistant District
Attorney sought and acquired a court order to obtain a blood sample for DNA testing to determine
whether Plaintiff was responsible for any of the other assaults. (See First Amended Complaint,
(“1st Am. Compl.”), Dkt. No. 8, p. 2.)
Plaintiff recounts how he was taken to Kings County Hospital sometime in February 1996
1 See also Suspect Is Arrested In Brooklyn Rapes. N.Y. TIMES , Sept. 17, 1995, Sec. 1
p. 44, https://www.nytimes.com/1995/09/17/nyregion/suspect-is-arrested-in-brooklyn-rapes.html.
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to provide a blood sample which, he alleges, was directed “by orders of” Defendants Sanchez and
Mulhall. (2d Am. Compl. p. 4.) He alleges Defendants New York City Department of Correction
(“DOC”) Officers Hodge and Steward, who have yet to appear in this matter, “shackled and
handcuffed” him in preparation for the blood draw. (Id. p. 4.) He alleges that Defendant Sanchez
struck him with a needle in his right arm nine times, and the needle ultimately broke off inside his
arm. (Id.) Plaintiff also provides an x-ray report dated March 18, 1996 from Montefiore Medical
Center, which appears to confirm a phlebotomy needle was found in the soft tissues of Plaintiff’s
right arm. (Id. Appx. 2.)
In prior pleadings, Plaintiff alleged that he “refused to comply” with the blood draw and
described how “a man in plain clothes” had the needle and stuck him in the arm “at least nine
times” when he “could not catch a vein.” 	(Complaint, (“Compl.”), Dkt. No. 2, p. 6; see also
1st Am. Compl p. 3.) In his opposition to Defendants’ motion, Plaintiff says he refused to have
his blood drawn without his lawyer present and that Defendant Sanchez could not catch a vein.
(See Pl. Opp. p. 7.) Plaintiff alleges that the force used to retrain him and take the blood sample
was excessive. (See Pl. Opp. pp. 10–12.)
In 1997, a Kings County jury found Plaintiff guilty of two counts of first-degree rape, two
counts of first-degree sodomy, and first-degree harassment. (See 2d Am. Compl. p. 5.) He was
sentenced to 250 years to life imprisonment. (See id.)
II. 	Procedural Background
Plaintiff’s original Complaint, filed on March 9, 1996, named 22 Defendants, including
various New York City entities and law enforcement officers, two state court judges, attorneys,
and witnesses, among others. 	(Compl. p. 1.) 	Plaintiff filed his First Amended Complaint on
September 5, 1996. 	(1st Am. Compl. p. 1) 	On April 21, 1997, the Court dismissed Plaintiff’s
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claims against the state court judges for lack of subject matter jurisdiction and in light of their
absolute immunity for acts in connection with their offices. (See Order Granting Mot. to Dismiss,
Dkt. No. 17.) On November 4, 1998, the Court also dismissed Plaintiff’s claims against New York
State and the New York State Unified Court System under the Eleventh Amendment. (See Mem.
& Order, Dkt. No. 31, pp. 2–4.)
On January 21, 1999, Plaintiff moved for default judgment against the DOC; the NYPD;
Correction Officers Steward, Nelson, and Hodge; the District Attorney and Assistant District
Attorney; the City of New York; and Correction Officers Kennedy and Mulhall, all of whom had
been served with summonses but had not responded. (See Request for Default Judgment,
Dkt. No. 33.) 	On February 1, 1999, with that motion pending, the Clerk of Court issued final
judgment dismissing the case. (Judgment, Dkt. No. 34.) Plaintiff filed a timely Notice of Appeal.
(See Notice of Appeal, Dkt. No. 35.) The Court of Appeals for the Second Circuit issued a mandate
on May 13, 1999, noting that the District Court’s orders had disposed of the claims against only
four of the Defendants and directing the District Court to dispose of the claims against the
remaining Defendants. (Mandate of USCA, Dkt. No. 37, p. 1.) After a substantial period of time
with no activity in the case, on February 14, 2024, Plaintiff filed a motion for reconsideration of
the Court’s April 21, 1997 Order under Federal Rule of Civil Procedure 60(b). (Motion to Vacate,
Dkt. No. 39.)
On March 29, 2024, the Court denied Plaintiff’s motion. (Mem. & Order, Dkt. No. 43.)
The Court found most of Plaintiff’s claims barred by Heck v. Humphrey, 512 U.S. 477 (1994) and
dismissed them pursuant to the Prison Litigation Reform Act, 28 U.S.C. §§ 1915A(b) and
(e)(2)(B)(ii). 	(See id. p. 24.) 	However, the Court granted Plaintiff leave to amend his claims
alleging inadequate medical treatment, excessive force, and religious freedom within 30 days,
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naming only the specific defendants involved. (Id.)
On June 27, 2024, Plaintiff filed his Second Amended Complaint, naming only Defendants
Sanchez, Kennedy, Mulhall, Hodge, and Steward as defendants. 	(See 2d Am. Compl. p. 1)
Plaintiff persisted in his allegations that, among other things, challenged his conviction and arrest,
and also described his allegations regarding his alleged deprivation of medication and the blood
draw order. (See id. pp. 2–6.) After reviewing that Complaint, the Court allowed Plaintiff's claims
for inadequate medical treatment against Defendants Sanchez, Kennedy, and Mulhall; and for
excessive force against Defendants Sanchez, Hodge, and Steward to proceed. (Order dated Jul. 9,
2024).
On September 25, 2024, the Court issued an order pursuant to Valentin v. Dinkins, 121 F.3d
72 (2d Cir. 1997), requiring Corporation Counsel of the City of New York to provide current
service addresses for all named law enforcement officer Defendants. (Order, Dkt. No. 54, p. 2.)
Corporation Counsel was initially able to ascertain last known addresses for all named Defendants
other than Hodge and Steward. (See Second Mot, for Extension of Time, Dkt. No. 57, p. 2.)
On December 17, 2024, Plaintiff moved for default judgment against Defendants Sanchez,
Mulhall, Kennedy, Hodge, and Steward, which was denied because Plaintiff did not demonstrate
proper service. 	(See Motion for Judgment by Default, Dkt. No. 66; Order, Dkt. No. 70, p. 1.)
United States Magistrate Judge Lois Bloom, who was then assigned to this matter, found
Defendants Kennedy, Mulhall, and Sanchez were properly served and ordered them to respond to
Plaintiff’s Complaint. (Id.) But Magistrate Judge Bloom ordered Corporation Counsel to continue
efforts to respond to the Court’s Valentin Order on behalf of Defendants Hodge and Steward. (Id.)
To date, Defendant Hodge has not appeared, and Corporation Counsel has been unable to identify
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Defendant Steward.2 (See Order, Dkt. No. 105.)
Thereafter, on February 7, 2025, Defendants Kennedy and Sanchez requested leave to file
a motion to dismiss the Second Amended Complaint. 	(See Motion for Pre-Motion Conference,
Dkt. No. 75; Order Referring Motion dated Feb. 11, 2025.) 	That request, and the subsequent
motion, were referred by Judge Chen to Magistrate Judge Bloom. (See Orders dated Feb. 11, 2025
& Sept. 22, 2025.) After the Court granted leave to file that motion, Defendant Mulhall appeared
and joined in the motion. 	(See Orders, Dkt. Nos. 81, 93.) 	Defendants Sanchez, Kennedy, and
Mulhall served Plaintiff with their motion on June 6, 2025. (See Letter, Dkt. No. 99.) On July 21,
2025, this case was reassigned to the undersigned. (Dkt. Entry dated Jul. 21, 2025.) Defendants
Kennedy, Mulhall and Sanchez’s motion to dismiss was fully briefed on September 22, 2025.
(See Dkt. Nos. 108–111).
2 Given the age of this case, efforts to identify and serve Defendants Hodge and Steward
have been difficult. When service at Defendant Hodge’s last known address was unsuccessful,
Defendants sought authorization to serve a subpoena on the New York City Employees’
Retirement System (“NYCERS”) to obtain a valid address. (Letter, Dkt. No. 89, p. 2.)
Magistrate Judge Bloom endorsed that subpoena on April 1, 2025, and NYCERS responded by
providing an out-of-state address for Defendant Hodge. (Order, Dkt. No. 90; Status Rep, Dkt.
No. 94, pp. 1–2.) Corporation Counsel confirmed that Defendant Hodge responded to requests
for information from NYCERS at that address, and that public records confirm he is the current
owner of the property at that address (Dkt. No. 94, pp. 1–2.) But someone at that address
refused Defendants’ correspondence. (Id.) Magistrate Judge Bloom ordered the Court to issue
amended summons to Defendant Hodge at that address on May 19, 2025. (Order, Dkt. No. 97;
Summons, Dkt. No. 98.) That summons was not responded to, and Defendant Hodge has not
appeared in this case.
With respect to Defendant Steward, Corporation Counsel was initially unable to identify
any correctional officers that met Plaintiff’s description. (Status Rep., Dkt. No. 72, p.1.) Among
other measures, the Law Department conducted a review of DOC records, held calls with
Plaintiff to gather more information, and identified all correctional officers employed in 1996
with names similar to “Steward” and characteristics similar to those Plaintiff described. (See
Status Reps., Dkt. Nos. 91, 94, 100.) Ultimately, Corporation Counsel was not confident any of
those officers were the Defendant Steward. (Status Rep., Dkt. No. 104, p. ii.) Recognizing
Corporation Counsel’s significant efforts to identify Defendant Steward, the Court has
determined it more appropriate to address Defendants’ motion to dismiss before requiring
Corporation Counsel to take any more identification efforts.
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LEGAL STANDARDS
I. 	Rule 12(b)(6) Motion to Dismiss
When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which
relief can be granted, the court must accept the factual allegations of the complaint as true and
draw all reasonable inferences in favor of the plaintiff. See, e.g., Bernheim v. Litt, 79 F.3d 318,
321 (2d Cir. 1996). 	“Consideration is limited to facts stated on the face of the complaint, in
documents appended to the complaint or incorporated in the complaint by reference, and to matters
of which judicial notice may be taken.” 	Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44
(2d Cir. 1991). 	When a plaintiff is proceeding pro se, the Court will also deem the factual
allegations contained in their briefs to supplement the factual allegations in the complaint.
See, e.g., Johnson v. Wright, 234 F. Supp. 2d 352, 356 (S.D.N.Y. 2002).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S.
at 678. Under this pleading standard, “‘labels and conclusions,’” or “‘a formulaic recitation of the
elements of a cause of action will not do.’” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 555). Instead, a plaintiff must provide enough factual support that, if true, would “raise a right
to relief above the speculative level.” Twombly, 550 U.S. at 555.
Where the plaintiff appears pro se, the complaint “[is] held ‘to less stringent standards than
formal pleadings drafted by lawyers.’” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972). Courts construe a pro se plaintiff’s complaint “liberally and
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interpret it ‘to raise the strongest arguments that it suggests.’” Chavis v. Chappius, 618 F.3d 162,
170 (2d Cir. 2010) (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.2010)). A court
is “obligated to draw the most favorable inferences” the complaint supports but “cannot invent
factual allegations that [plaintiff] has not pled.” Chavis, 618 F.3d at 170. “This is particularly so
when the pro se plaintiff alleges that [his] civil rights have been violated.” 	Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). When challenged by a 12(b)(6) motion to
dismiss for failure to state a claim, a pro se complaint “should not be dismissed unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.” Hughes, 449 U.S. at 10.
II. 	Prior Inconsistent Pleadings
The question of whether a court should also consider allegations from earlier pleadings
when resolving a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) in a case with a pro se
plaintiff is a complicated one. “There is authority supporting the notion that a court may disregard
amended pleadings when they directly contradict facts that have been alleged in prior pleadings.”
Kilkenny v. L. Off. of Cushner & Garvey, L.L.P., 08-CV-588, 2012 WL 1638326, at *5 (S.D.N.Y.
May 8, 2012); see also Colliton v. Cravath, Swaine & Moore LLP, 08-CV-400, 2008 WL 4386764,
at *6 (S.D.N.Y. Sept. 24, 2008) (“Where ‘a plaintiff blatantly changes his statement of the facts in
order to respond to the defendant['s] motion to dismiss . . . [and] directly contradicts the facts set
forth in his original complaint,’ a court is authorized ‘to accept the facts described in the original
complaint as true.’”) aff’d, 356 F. App’x 535 (2d Cir. 2009); (quoting Wallace v. New York City
Dep’t of Corr., 95-CV-4044, 1996 WL 586797, at *2 (E.D.N.Y. Oct. 9, 1996).
Importantly, “many courts in this Circuit have held otherwise, and note that ‘[p]rior
inconsistent pleadings, though admissible . . . are controvertible, not conclusive, admissions.’”
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Bernadotte v. New York Hosp. Med. Ctr. of Queens, 13-CV-965, 2014 WL 808013, at *5
(E.D.N.Y. Feb. 28, 2014) (quoting The Limited, Inc. v. McCrory Corp., 683 F. Supp. 387, 395 n.5
(S.D.N.Y. 1988) and collecting cases). These cases have recognized that “in a typical case, a prior
inconsistent pleading should not trump the Court’s obligation under Rule 12(b)(6) to accept a
complaint’s allegations as true.” 	Palm Beach Strategic Income, LP v. Salzman, 10-CV-61,
2011 WL 1655575, at *6 (E.D.N.Y. May 2, 2011); see also Streit v. Bushnell, 424 F. Supp. 2d
633, 640 n.4 (S.D.N.Y. 2006) (“It would be a harsh rule of law indeed if a litigant were to change
a statement in an amended pleading to repair a weakness cited by an adversary or by the Court,
only to have the case dismissed because the conforming change in some way may conflict with an
allegation in the earlier pleadings.”).
DISCUSSION
As described in the Court’s prior order regarding the Second Amended Complaint, Plaintiff
alleges that his constitutional rights were violated during two separate incidents involving different
groups of Defendants: 	(i) an alleged denial of medical treatment by Defendants Sanchez,
Kennedy, and Mulhall after Plaintiff’s arrest and confinement at the 71st Precinct; and
(ii) excessive force by Defendants Sanchez, Hodge, and Steward in connection with the blood
draw. (See Mem. & Order, Dkt. No. 43; Order dated Jul. 9, 2025.)
These claims of deliberate indifference to his serious medical needs and of excessive force
are brought pursuant to Section 1983 of the Civil Rights Act of 1871, codified at 42 U.S.C. § 1983,
which allows individuals to sue and obtain monetary damages from state and local government
officials for violations of federal constitutional rights. See 42 U.S.C. § 1983. Section 1983 “‘is
not itself a source of substantive rights,’” but “merely provides ‘a method for vindicating federal
rights elsewhere conferred’” by federal law. 	Patterson v. Cnty. of Oneida, New York, 375 F.3d
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206, 225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). 	A § 1983
claim has two essential elements: (i) the defendant acted under color of state law; and (ii) as a
result of the defendant's actions, the plaintiff suffered a denial of their federal statutory or
constitutional rights. See, e.g., Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998).
Here, there is no dispute that Defendants acted under color of state law when engaged in
the conduct alleged. 	Defendants do dispute, however, whether each individual Defendants’
conduct, as alleged, deprived Plaintiff of his constitutional rights. Defendants further argue that
they are entitled to qualified immunity. (See Mot., Dkt. No. 109.) For the reasons discussed below,
Defendants’ motion to dismiss is granted except as to Plaintiff’s allegation of excessive force by
Detective 	Sanchez 	in 	attempting 	to 	draw 	Plaintiff’s 	blood.
I. 	Plaintiff’s Claim of Deliberate Indifference to Serious Medical Needs
The undersigned first considers Plaintiff’s claim that he was unable to take his seizure
medication, and that Defendants allegedly prevented him from going to the hospital. As detailed
below, the question of whether these allegations would violate Plaintiff’s constitutional rights
ultimately turns on whether each Defendant denied plaintiff care in a way that exhibited deliberate
indifference to Plaintiff’s serious medical needs.
A. 	Personal Involvement of Each Defendant
Plaintiff alleges that Defendants Sanchez, Mulhall, and Kennedy collectively denied EMS
workers’ recommendation that he be taken to the hospital after he lost consciousness when he was
unable to take his seizure medication. 	(See 2d Am. Comp. p. 3.) 	He describes how “Sanchez,
Mulhall, and Kennedy were standing over [him] hassling him with questions” when he awoke and
says that all three of these Defendants told EMS workers they did not want to delay line ups to
take Plaintiff to the hospital. 	(Id.) 	Defendants contend that these allegations are insufficient in
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that they fail to “differentiat[e] the specific conduct” of Defendants Sanchez, Mulhall, and
Kennedy. (Mot. pp. 10–11, 15–16.)
The undersigned must consider the personal involvement of each defendant, as alleged by
the Plaintiff. To plausibly bring a claim against an individual defendant under § 1983, a plaintiff
must plead facts showing that defendant’s personal involvement in the allegedly unconstitutional
conduct through their own individual acts. Green v. Bauvi, 46 F.3d 189 (2d Cir. 1995); see also
Iqbal, 556 U.S. at 676. Vicarious liability is not enough to establish liability under § 1983. Blyden
v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999). 	Rather, “because § 1983 imposes liability only
upon those who actually cause a deprivation of rights, ‘personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’”
Barratt v. Joie, 2002 WL 335014, *6 (S.D.N.Y. Mar. 4, 2002) (quoting Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994)).
To establish personal involvement, a plaintiff must show that:
“(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
. . . , failed to remedy the wrong, (3) the defendant created a policy
or custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, (4) the
defendant was grossly negligent in supervising subordinates who
committed 	the 	wrongful 	acts, 	or 	(5) the 	defendant 	exhibited
deliberate indifference . . . by failing to act on information indicating
that unconstitutional acts were occurring.”
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). “Direct participation” has been
defined as ‘personal participation by one who has knowledge of the facts that rendered the conduct
illegal,’ or indirect participation, such as ‘ordering or helping others to do the unlawful acts.’”
Nardoni v. City of New York, 331 F. Supp. 3d 116, 122–23 (S.D.N.Y. 2018) (quoting Provost v.
City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)).
Here, Defendants maintain that Plaintiff’s Second Amended Complaint “relie[d] entirely
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on impermissible group pleading and fail[ed] to specify which defendant or defendants were
involved.” (Id. p. 11, 16) (quoting Johnson v. City of New York, 15-CV-8195, 2017 WL 2312924,
at *10 (S.D.N.Y. May 26, 2017).) But the Second Amended Complaint does not rely entirely on
group pleading. It sometimes groups the Defendants together when it refers to them as “detectives”
or NYPD personnel but does not do so throughout. Moreover, Plaintiff specifies which Defendants
were involved in the conduct and how. (See 2d Am. Compl. p. 3.) Plaintiff alleges that all three
told EMS workers they did not want to delay a lineup by taking Plaintiff to the hospital. (Id.) The
undersigned finds those allegations are enough to plead these three Defendants’ personal
involvement at this stage. 	See Maldonado v. Town of Greenburgh, 460 F. Supp. 3d 382, 399
(S.D.N.Y. 2020) (denying motion to dismiss detective for lack of personal participation in
indifference to medical needs because, inter alia, complaint plausibly alleged defendant was
present at the scene after plaintiff became limp and unresponsive); cf. Green v. Garcia, 18-CV-
174, 2020 WL 1467359, at *5 (S.D.N.Y. Mar. 25, 2020) (“if Plaintiff were to state . . . the names
of each person ‘who was present . . . , and that these defendants either directly participated . . . or
failed to intervene,’ such allegations would be sufficient to allege personal involvement”) (quoting
Snoussi v. Bivona, 05-CV-3133, 2010 WL 3924255, at *3 (E.D.N.Y. Feb. 17, 2010)), report and
recommendation adopted by 2010 WL 3924683 (E.D.N.Y. Sept. 29, 2010).
B. 	Whether 	Each 	Defendants’ 	Actions, 	As 	Alleged, 	Constitute 	Deliberate
Indifference to Plaintiff’s Serious Medical Needs
Next, the undersigned must consider whether the allegations against each individual
defendant constituted deliberate indifference to Plaintiff’s serious medical needs. For the reasons
detailed below, the undersigned concludes that they do not.
Claims of deliberate indifference to medical needs are protected by either the guarantee
against cruel and unusual punishment in the Eighth Amendment or the Due Process Clause of the
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Fourteenth Amendment, depending on whether the plaintiff is a pre-trial detainee or serving a
criminal sentence. See, e.g., Benjamin v. Fraser, 343 F.3d 35, 49–50 (2d Cir. 2003), (citing Bell
v. Wolfish, 441 U.S. 520, 536 (1979), overruled on other grounds by Caiozzo v. Koreman, 581
F.3d 63 (2d Cir. 2009)). Because the conduct at issue here occurred when Plaintiff was detained
pending arraignment and trial, his claims fall within the Due Process Clause of the Fourteenth
Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (“A pretrial detainee’s claims
are evaluated under the Due Process Clause because, ‘[p]retrial detainees have not been convicted
of a crime and thus may not be punished in any manner—neither cruelly and unusually nor
otherwise.’”) (quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007)). Although the source of
a pretrial detainee’s constitutional protection may be different, “[a] detainee's rights are ‘at least
as great as the Eighth Amendment protections available to a convicted prisoner.’” Darnell, 849
F.3d at 29 (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, (1983)).
To sufficiently state a claim of deliberate indifference to medical needs under the
Fourteenth Amendment, a plaintiff must prove two overall elements: (i) an objective element that
the plaintiff had a serious medical need; and (ii) a subjective element that the defendants acted
with deliberate indifference to that need. 	See, e.g., Charles v. Orange County, 925 F.3d 73, 86
(2d Cir. 2019). 	To prove the objective element, a plaintiff must establish that (1) they were
deprived of medical care and (2) that their medical need was sufficiently serious. See id.
1. 	Objective Component
a. 	Denial of Care
Plaintiff’s Second Amended Complaint asserts that because Plaintiff was not able to take
medication after he was arrested and placed in a holding cell, he suffered a seizure. 	(2d Am.
Compl. p. 2.) 	He further asserts that when he regained consciousness, Defendants Sanchez,
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Mulhall, and Kennedy refused EMS workers’ recommendation to take him to a hospital because
they did not want to delay line-ups for possible identification by victims of the assaults. 	(Id.)
These allegations plainly establish the first aspect of the objective element: a denial of care.
Defendants counter that they provided reasonable care by summoning EMS workers to
evaluate Plaintiff when he regained consciousness and by allowing Plaintiff to call his mother to
request his medication. (See Mot. pp. 6–7.) However, none of these allegations are present in the
Second Amended Complaint, which only describes how EMS workers were standing over Plaintiff
when he awoke. (2d Am. Compl. p. 2.) Defendants assert that the Court should consider additional
allegations that, they contend, Plaintiff included in his prior filings but not his Second Amended
Complaint. 	(See Mot. p. 7.) 	Defendants also note some of these are referenced in the Court’s
Order denying Plaintiff’s First Amended Complaint. (See Mem. & Order, Dkt. No. 43, p. 2. (citing
1st Am. Compl. pp. 3–4).)
The Court can rely on allegations contained in prior complaints in limited circumstances.
See supra pp.8–9. However, even if the undersigned were to consider Plaintiff’s prior allegations
in assessing the present complaint, nowhere in Plaintiff’s original or First Amended Complaint
does he say that any of Defendants summoned EMS personnel to aid Plaintiff. 	The original
Complaint does not include any allegations about the events that occurred at the 71st Precinct after
Plaintiff’s initial arrest. Like the Second Amended Complaint, the First Amended Complaint only
describes how “EMS personnel and several officers were standing over [Plaintiff]” when he
awoke. 	(1st Am. Compl. p. 1.) 	Because no allegations in any of Plaintiff’s pleadings support
Defendants’ argument that they summoned medical care, that argument cannot prevail at the
motion to dismiss stage. See, e.g., N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp.,
709 F.3d 109, 121 n.5 (2d Cir. 2013) (“[E]ven crediting the Defendants-Appellants’ explanations,
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the [plaintiff's] inference of liability remains reasonable.”).
The First Amended Complaint does recount how Plaintiff asked and was allowed by an
officer to call his mother to request his medication. 	(1st Am. Compl. p. 1.) 	That allegation is
absent from the Second Amended Complaint. Again, even if it were appropriately considered, at
this stage the undersigned must construe those facts in Plaintiff’s favor. See supra p. 8 (quoting
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). Doing so still compels a finding of a denial
of medical care. Even if the undersigned assumed that Plaintiff was allowed to call his mother to
request his medication, there are no facts to establish he was able to obtain that medication. (Mem.
& Order, Dkt. No. 43, pp. 2–3.) 	And even if Plaintiff was permitted to obtain and take his
medication, there is still a question of whether a subsequent medical need arose when Plaintiff lost
consciousness and was allegedly denied the ability to go to the hospital. 	On that final fact, the
Second Amended Complaint clearly alleges that each defendant prevented him from doing so.
Thus, the undersigned finds that Plaintiff’s allegations, if true, sufficiently establish that all three
Defendants deprived Plaintiff of medical care.
b. 	Sufficiently Serious Medical Need
The undersigned next considers the question of whether Plaintiff was experiencing a
sufficiently serious need for care when Defendants allegedly denied him that care. 	A serious
medical need arises when there is “a condition of urgency such as one that may produce death,
degeneration, or extreme pain.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996); see also
Acevedo v. City of New York, 24-CV-558, 2025 WL 2802764 (S.D.N.Y. Oct. 1, 2025) (decision to
discharge plaintiff with excruciatingly painful gunshot wound to foot after giving him cane,
orthopedic shoe, and instructions to take over-the-counter medication constituted sufficiently
serious deprivation of medical care). 	Courts in this Circuit consider factors such as whether a
reasonable doctor or patient would find the injury important and worthy of treatment, whether the
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medical condition significantly affects an individual's daily activities, and whether the illness or
injury inflicts chronic and substantial pain. See, e.g., Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir. 1998).
In the Second Amended Complaint, Plaintiff alleges that as a result of missing his
medication to treat his “mild seizure disorder,” he “passed out, . . . woke up traumatized, dizzy;
and . . . spitting saliva all over the place.” (2d Am. Compl. p. 2; see also Pl. Opp. p. 5.) 	Other
than the loss of consciousness, confusion, dizziness, and spitting Plaintiff describes, the Second
Amended Complaint includes no allegations about any risk of permanent or on-going future harm
to Plaintiff that could result from missing his medication. 	Even assuming Plaintiff could have
experienced additional seizures or other consequences as a result of missing his medication,
Plaintiff himself describes his seizure disorder as “mild[,]” suggesting a more limited risk.
(2d Am. Compl. p. 2.) 	These allegations are insufficient to establish a sufficiently serious
deprivation of medical care. See, e.g., Smith v. Carpenter, 316 F.3d 178, 188–89 (2d Cir. 2003)
(finding no constitutional violation when plaintiff missed two doses of HIV medication but failed
to present evidence or risk of permanent, on-going harm or future harm); Youngblood v. Artus, 10-
CV-752, 2011 WL 6337774, at *7 (N.D.N.Y. Dec. 19, 2011) (granting motion to dismiss
deliberate indifference claim for defendant’s alleged failure to give plaintiff single dose of seizure
medication and plaintiff did not specify resulting harm caused). 	Accordingly, the undersigned
finds that Plaintiff’s allegations cannot establish the objective component of a claim for his claim
based in the alleged denial of care.
3. 	Subjective Component
Finally, the undersigned must consider the subjective component of the claim—whether
Plaintiff alleged that the Defendants acted with deliberate indifference to his serious medical need
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when they denied him care. This subjective element requires that “the charged official act or fail
to act while actually aware of a substantial risk that serious inmate harm will result.” Salahuddin
v. Goord, 467 F.3d 263, 280 (2d Cir. 2006); see also Charles v. Orange Cnty.., 925 F.3d 73, 87
(2d Cir. 2019) (“A plaintiff can prove deliberate indifference by showing that the defendant official
‘recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the
pretrial detainee even though the defendant-official knew, or should have known, that the condition
posed an excessive risk to [the plaintiff’s] health or safety.’”) (quoting Darnell v. Pineiro, 849
F.3d 17, 35 (2d Cir. 2017)). 	“If a defendant consciously chose to disregard a nurse or doctor’s
directions in the face of medical risks, then he may well have exhibited the necessary deliberate
indifference.” Johnson v. Wright, 234 F. Supp. 2d 352, 361 (S.D.N.Y. 2002) (quoting Zentmyer
v. Kendall Cnty., Ill., 220 F.3d 805, 812 (7th Cir. 2000)). But this subjective standard still requires
that the state official be subjectively aware of a serious, substantial or excessive risk. Id.
Here, even though Plaintiff alleges that Defendants Sanchez, Mulhall, and Kennedy denied
him 	care, 	he 	does 	not 	plausibly 	allege 	that 	the 	Defendants 	acted 	with 	the 	requisite
unreasonableness because any medical risk to Plaintiff was low. As described above, there was
no excessive risk to Plaintiff for allegedly missing one dose of medication to treat a mild seizure
disorder.
In sum, as the allegations in Plaintiff’s Second Amended Complaint do not establish either
prong of a constitutional violation related to a denial of care, the undersigned recommends that
this claim be dismissed against Defendants Sanchez, Mulhall and Kennedy.
II. 	Excessive Force During the Court-Ordered Blood Draw
The undersigned now evaluates Plaintiff’s claim of excessive force against Defendants
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Sanchez, Hodge, and Steward in relation to the court-ordered blood draw.3 Before addressing the
substance of these allegations, the undersigned notes they include claims against Defendants
Hodge and Steward, who have not appeared in this action and have not sought dismissal. 	See
supra p. 6 n.2. Despite this, “‘where, as here, a motion to dismiss has been made by some but not
all defendants, the Court can (and arguably should, so as to prevent piecemeal adjudication)
consider the viability of the plaintiff’s remaining claims as well, including those asserted against
unserved named defendants.’” 	Cruz v. Hastings, 20-CV-4392, 2022 WL 1050795, at *7 n.10
(S.D.N.Y. Jan. 31, 2022)); see also Williams v. Novoa, 19-CV-11545, 2022 WL 161479, at *10–
13 (S.D.N.Y. Jan. 18, 2022) (considering viability of claims against unserved defendants on a
motion 	to 	dismiss 	made by 	served 	defendants 	“[i]n 	the interest 	of 	judicial 	economy”).
Accordingly, the undersigned finds it appropriate to evaluate Plaintiff’s allegations regarding
excessive force as to moving Defendant Sanchez and non-appearing Defendants Hodge and
Steward.
For the reasons set forth below, the undersigned recommends that Defendant Sanchez’s
motion be denied as to this claim and that Plaintiff’s excessive force claim also proceed against
Defendants Sanchez, as well as Defendants Hodge and Steward, should they appear in this action.
A. 	Personal Involvement of the Individual Defendants
The undersigned first addresses whether Plaintiff adequately alleges personal participation
by Defendants Sanchez, Hodge, and Steward. See supra pp. 10–12. Focusing on the allegations
3 Defendants argue that Plaintiff’s excessive force claims against Kennedy and Mulhall
should be dismissed because they did not participate in, direct, or supervise the blood draw
procedure. (See Mot. pp. 15–16.) Even if the Second Amended Complaint could be construed to
allege excessive force claims against these Defendants, the Court only allowed Plaintiff’s
excessive force claim to proceed against Defendants Sanchez, Hodge, and Steward. (Order dated
Jul. 9, 2024.) Thus, the undersigned finds it need not address potential allegations of excessive
force against any other Defendants.
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in the Second Amended Complaint, the undersigned finds Plaintiff sufficiently alleged Defendant
Sanchez’s direct participation by naming him as the one who stuck him with the needle nine times.
The allegations in the Second Amended Complaint regarding non-appearing Defendants Hodge
and Stewart’s participation, if true, are also sufficient to proceed on a claim of excessive force
against them. Plaintiff alleges they were both present at the scene of the blood draw and directly
participated in the alleged use of excessive force by restraining him. (2d Am. Compl. p. 4.) That
is enough. Cf. Messina v. Mazzeo, 854 F. Supp. 116, 125–28 (E.D.N.Y. 1994) (denying dismissal
and finding facts sufficient to establish personal participation when plaintiff named all law
enforcement officers who restrained him during group arrest).
Defendant Sanchez argues that Plaintiff’s current allegations stating he was involved in the
blood draw contradict facts in Plaintiff’s prior pleadings, which described how “a man in plain
clothes” was the individual who stuck him in the arm at least nine times because he “could not
catch a vein.” 	(Id. (quoting 1st Am. Compl. pp. 2–3).) 	At this stage, however, the Court must
focus on the facts as alleged in the Second Amended Complaint. 	See supra pp. 8–9. 	Any
inconsistencies between the Second Amended Complaint and Plaintiff’s prior pleadings are not so
“blatantly contradictory” to warrant disregard of the most recently pled version of events at the
motion to dismiss stage. See supra p. 8 (quoting Colliton v. Cravath, Swaine & Moore LLP, 08-
CV-400, 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24, 2008)). Plaintiff did not proactively amend
any of his allegations in response to arguments in Defendants’ motion to dismiss; the Second
Amended Complaint was filed more than a year before. Moreover, if inconsistencies do exist, the
proper remedy in the undersigned’s view is not wholesale dismissal. Defendants may employ any
contradictions to their advantage as prior inconsistent statements on summary judgment or at trial.
See Barris v. Hamilton, 96–CV–9541, 1999 WL 311813, at *2 (S.D.N.Y. May 17, 1999) (“While
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there may be a rare occasion to disregard the contradictory and manipulated allegations of an
amended pleading . . . the more usual and benevolent option is to accept the superseded pleadings
but allow the factfinder to consider the earlier pleadings as admissions in due course.”). As such,
the undersigned finds that Plaintiff adequately establishes personal involvement by Defendants
Sanchez, Hodge, and Steward.
B. 	Whether the Conduct, As Alleged, Constitutes Excessive Force
Next, the undersigned considers whether the conduct as alleged in the Second Amended
Complaint could constitute excessive force.
Here, because the blood draw occurred after Plaintiff’s arraignment but before his
conviction, the right to be free from excessive force claim is derived from the Fourteenth
Amendment.4 	See Lemmo v. McKoy, 08-CV-4264, 2011 WL 843974, at *4 (E.D.N.Y. Mar. 8,
2011). 	(“If excessive force was allegedly used before arraignment, the Fourth Amendment
standards govern. If the alleged violation occurs after arraignment but before conviction, then the
Fourteenth Amendment applies. 	Allegations of excessive force occurring after conviction are
subject to an Eighth Amendment analysis.”)
The substantive due process component of the Fourteenth Amendment protects pretrial
detainees from unconstitutional conditions of confinement, including use of excessive force.
Darnell, 849 F.3d at 29. Determining whether the force used was objectively reasonable “turns
on the facts and circumstances of each particular case.” Kingsley v. Hendrickson, 576 U.S. 389,
396–97 (2015). 	To establish excessive force, a plaintiff must show that (i) “the use of force is
deliberate—i.e., purposeful or knowing”—or reckless; and (ii) that the amount of force used is
4 Defendants assert that drawing Plaintiff’s blood was reasonable under the Fourth Amendment
because it was drawn according to a court order supported by probable cause. (See Mot. pp. 11–
13.) But the undersigned finds it unnecessary to address any Fourth Amendment arguments
because Plaintiff’s blood draw occurred after arraignment.
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objectively unreasonable under the circumstances. Id. Factors a court may consider include:
“the relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff’s injury; any effort
made by the officer to temper or to limit the amount of force; the
severity of the security problem at issue; the threat reasonably
perceived by the officer; and whether the plaintiff was actively
resisting.”
Id.
Construing the allegations in the Second Amended Complaint in Plaintiff’s favor, stabbing
Plaintiff with a needle nine times would be excessive on its face if there was no justification to do
so. 	Cf. Sawyer v. New York State Dep’t. of Corr. Servs., 11-CV-152, 2015 WL 6644112
(W.D.N.Y. June 30, 2015) (finding allegation that prison guard deliberately pricked plaintiff twice
with needle sufficient to support Eighth Amendment excessive force claim), report and
recommendation adopted in part, rejected in part sub nom., 2015 WL 6641471 (W.D.N.Y.
Oct. 28, 2015). Defendant Sanchez argues that he cannot be liable for excessive force because it
is “implausible” that he “would personally conduct a medical procedure reserved for licensed
professionals.” (Mot. p. 15.) Defendant Sanchez also argues that the amount of force used was
not objectively unreasonable under the circumstances because Plaintiff actively resisted and
refused to comply during the blood draw. 	(See Mot. p. 14.) 	However, the undersigned cannot
consider these defenses at the motion to dismiss stage, where it must give deference to Plaintiff’s
allegations as set forth in the Second Amended Complaint and construe them in Plaintiff’s favor.
To that end, the presence of a professional does not make it implausible that Defendant Sanchez
might engage in excessive force and the resistance to the blood draw is not supported by the
allegations in the Second Amended Complaint. As such, Plaintiff sufficiently alleges excessive
force to allow the claim to proceed to discovery and Defendant Sanchez can renew these arguments
on summary judgment or at trial.
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The undersigned also finds Plaintiff’s allegations against Defendants Hodge and Steward
are sufficient to proceed. 	If true, Plaintiff’s allegations that they restrained him with chains,
handcuffs, and shackles could constitute excessive force if it was unreasonable to do so, and
discovery is needed to test those allegations. 	See, e.g., Jumpp v. Simonow, 20-CV-138, 2020
WL 4059850 (D. Conn. July 20, 2020) (allowing excessive force claim to proceed against officer
who allegedly used unreasonable amount of force without legitimate justification).
For these reasons, the undersigned recommends that Defendants Sanchez’s motion to
dismiss be denied in part as to his claim for excessive force. As such, the undersigned recommends
that this one claim against Defendants Sanchez, Hodge, and Steward move forward to discovery
on the very narrow inquiry of whether they used excessive force in connection with the blood
draw.
III. 	Defendants’ Qualified Immunity Defense
The undersigned also considers whether the moving Defendants are entitled to qualified
immunity at this stage. For the reasons below, the undersigned concludes that they are, except as
to the claim for excessive force against Defendant Sanchez.5
“Qualified immunity protects public officials from liability for civil damages when one of
two conditions is satisfied: (a) the defendant's action did not violate clearly established law, or
(b) it was objectively reasonable for the defendant to believe that his action did not violate such
law.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (citing Russo v. City of Bridgeport, 479 F.3d
196, 211 (2d Cir. 2007)); see also Hunter v. Bryant, 502 U.S. 224, 229 (1991) (“The qualified
5 As Defendants Hodge and Steward have not appeared and, thus, have not moved on the basis
of qualified immunity, the undersigned does not consider whether they are entitled to qualified
immunity. See Bell v. City of New York, 13-CV-5317, 2013 WL 6268083, at *3 (E.D.N.Y.
Dec. 4, 2013) (declining to address qualified immunity defense against unidentified, non-
appearing, nonmoving officers at motion to dismiss stage despite district court’s inherent
powers).
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immunity standard gives ample room for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.”). 	The defendant bears the burden of
showing the objective reasonableness of the acts in question. See Tellier v. Fields, 280 F.3d 69,
84 (2d Cir. 2000).
“Usually, the defense of qualified immunity cannot support the grant of a [Rule] 12(b)(6)
motion for failure to state a claim upon which relief can be granted.” Green v. Maraio, 722 F.2d
1013, 1018 (2d Cir. 1983); see also McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (“‘Rule
12(b)(6) is a mismatch for immunity and almost always a bad ground of dismissal’”) (quoting
Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir. 2000)). A defendant presenting a qualified
immunity defense on a Rule 12(b)(6) motion “faces a formidable hurdle . . . and is usually not
successful.” 	Field Day, LLC v. County of Suffolk, 463 F.3d 167, 191–92 (2d Cir. 2006). 	“The
defense will succeed only where entitlement to qualified immunity can be established ‘based
[solely] on facts appearing on the face of the complaint.’” Barnett v. Mount Vernon Police Dep’t,
523 F. App’x 811, 813 (2d Cir. 2013) (quoting McKenna, 386 F.3d at 436).
As an initial matter, the undersigned finds Defendants Sanchez, Mulhall, and Kennedy
would be entitled to qualified immunity as to Plaintiff’s claim of deliberate indifference to medical
needs because, as explained above, they did not violate Plaintiff's constitutional rights. See supra
pp. 20–22, see also Saucier v. Katz, 533 U.S. 194, 201 (2001) (holding whether officers conduct
violated a constitutional right is a “threshold question” in determining entitlement to qualified
immunity).
Moving Defendant Sanchez argues he is entitled to qualified immunity as to Plaintiff’s
excessive force claims because a reasonable law enforcement officer at the time would have
believed using restraints to effectuate a court-ordered blood draw against a noncompliant detainee
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was lawful. (See Mot. p. 19.) He also reasserts that the blood draw was performed by medical
personnel. (See id.)
But the Second Amended Complaint does not claim solely that the use of restraints
constituted excessive force. It also alleges that sticking Plaintiff with a needle nine times such that
it broke in his arm. (See 2d Am. Compl. p. 4.) That could constitute excessive force if it was not
necessary to do so. 	See supra pp. 20–21. 	Even if Defendant Sanchez was facilitated a court-
ordered blood draw, that does not authorize him to use more force than necessary. Moreover, as
previously discussed, crediting Defendant Sanchez’s assertion that he did not perform the blood
draw is not an appropriate defense at this stage where the undersigned must accept Plaintiff’s
allegations as true—that defense may be considered at a later stage of litigation. See supra p. 19.
Accordingly, the undersigned cannot find, at least at this stage, that Defendant Sanchez is entitled
to qualified immunity for conduct related to the blood draw.
CONCLUSION
For the reasons set forth above, the undersigned respectfully recommends Defendants’
motion to dismiss be granted in part and denied in part. The undersigned respectfully recommends
that the Court dismiss the Second Amended Complaint against Defendants Mulhall, and Kennedy,
and against Defendant Sanchez as it relates to a claim of deliberate indifference to Plaintiff’s
serious medical needs. The undersigned respectfully recommends that the Court deny Defendant
Sanchez’s motion to dismiss as it relates to excessive force during the court-authorized blood draw.
OBJECTIONS
Any objections to this Report and Recommendation must be filed within 14 days after
service. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) & (d)
(addressing computation of days). 	Counsel for the Defendants are directed to serve this Report
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and Recommendation on Plaintiff and file proof of service on the docket sheet. Any requests for
an extension of time for filing objections must be directed to Judge Chen.
Failure to file objections within this period designating the particular issues to be reviewed
waives the right to appeal the district court’s order. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2);
see also Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile,
P.C., 596 F.3d 84, 92 (2d Cir. 2010) ((“[A] party [forfeits] appellate review of a decision in a
magistrate judge's Report and Recommendation if the party fails to file timely objections
designating the particular issue.”); Thomas v. Arn, 474 U.S. 140, 148–49 (1985) (finding Federal
Magistrates Act does not forbid court of appeals from adopting rule conditioning appeal from
district court’s judgment that adopts magistrate judge’s recommendation upon filing of objections
to magistrate judge’s report identifying those issues on which further review is desired).
SO ORDERED.
Dated: Brooklyn, New York
February 12, 2026
/S/ SETH D. EICHENHOLTZ
SETH D. EICHENHOLTZ
United States Magistrate Judge
Eastern District of New York
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