Jarvis v. Knapp et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Holly Jarvis,
Plaintiff,
v. 5:25-CV-1167
(MAD/MJK)
Officer Knapp et. al.,
Defendant.
_____________________________________________________________________
Holly Jarvis, Plaintiff pro se
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Mae A. D’Agostino, U.S. District Judge:
ORDER & REPORT- RECOMMENDATION
On August 26, 2025, Jarvis began this action by filing a Complaint
and moving for leave to proceed in forma pauperis (“IFP”) (Dkts. 1, 2).
The Clerk sent Jarvis’s Complaint and IFP application to this Court for
review. (Dkts. 1, 2). This Court recommended the District Court dismiss
Jarvis’s Complaint without prejudice and with leave to amend. (Dkt. 8).
Jarvis then filed an Amended Complaint. (Dkt 9). The District Court
adopted this Court’s recommendation in its entirety and referred
Jarvis’s Amended Complaint to this Court for review. (Dkt. 10).
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 1 of 97

2
I. BACKGROUND
A. The Original Complaint
On July 3, 2025, Officer Knapp approached Jarvis and asked her
about an open beer can on the curb. (Complaint, Dkt. 1, pg. 1, ¶1).
Jarvis denied ownership of the can. (Id.). Jarvis alleged that Knapp
then demanded her name “without reasonable suspicion or probable
cause.” (Id. at ¶4). Knapp then declared Jarvis was detained. (Id. at ¶5).
Around this time, Jarvis tried to leave but Knapp “pushed, shoved, and
knocked” her “into a wall while” she was trying “to walk away.” (Id. at
¶8). Finally, Knapp handcuffed Jarvis, and placed her in a patrol car.
(Id. at ¶5).
Next, Knapp searched Jarvis’s bag, took out her “legal papers
relating to another civil rights case” and examined them. (Id.). Shortly
after this, another officer, John Doe, arrived and joined in demanding
Jarvis’s name. (Id. at ¶6). Jarvis protested the detention. (Id.). The
officers then issued Jarvis two Desk Appearance Tickets: the first for
underage possession of alcohol and the second for “loitering, littering,”
and an “open container.” (Id. at ¶7).
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 2 of 97

3
Jarvis claims that this incident occurred because “Syracuse Police
Department failed to properly train, supervise, or discipline its officer.”
(Id. at ¶10) (cleaned up).
B. The Amended Complaint
Now, Jarvis alleges that she “was standing outdoors in Syracuse,
New York, when Defendant Officer Knapp approached” her “and
accused her of possessing an open container of alcohol.” But Jarvis
claims she “was not drinking and had no open container in her
possession.” (Amended Complaint, Dkt. 9, pg. 3, at ¶1). Officer Knapp
then demanded identification from Jarvis, pushed her against a wall,
and applied “handcuffs so tightly they caused pain and bruising.” (Id. at
¶2).
Officer Matthewson assisted Officer Knapp’s detention of Jarvis
and search of Jarvis’s belongings “without a warrant or consent.” (Id. at
¶3). While searching Jarvis’s belongings, Officers Matthewson and
Knapp removed sealed court documents from Jarvis’s backpack, opened
the envelopes, and examined the contents. (Id. at ¶9).
Although Jarvis was not drinking and there was no open
container of alcohol, Jarvis “was issued a summons for an alcohol-
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 3 of 97

4
related violation[.]” (Amended Complaint, Dkt. 9, pg. 4, at ¶5). That
summons was later dismissed. (Id.).
II. IFP APPLICATION
Jarvis declares in her IFP applications that she is unable to pay
the filing fee. (Dkt. 2). And after reviewing her application, this Court
finds that Jarvis is financially eligible for IFP status.
III. STANDARD OF REVIEW
On their own, courts can dismiss a case—at any time—if they
determine that an action is (1) frivolous or malicious; (2) fails to state a
claim on which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. See 28 U.S.C. §
1915 (e)(2)(B)(i)-(iii).
When determining whether an action is frivolous, courts must
consider whether the complaint lacks an arguable basis in law or fact.
See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (cleaned up); 28
U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent
abuses of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802,
804 (8th Cir. 1974).
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 4 of 97

5
Courts must show liberality toward pro se litigants and use
extreme caution when sua sponte dismissing pro se complaints. See
Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d
Cir. 2000). Still, courts have a responsibility to determine that a claim
is not frivolous before permitting a plaintiff to proceed. See id.
IV. DISCUSSION
A. The District Court should allow Jarvis’s illegal seizure
claim to proceed because the Complaint plausibly alleges
that Officer Knapp seized Jarvis for no reason.
The Court recommends allowing Jarvis’s illegal search claim to
proceed. To plausibly allege an illegal search claim, plaintiffs must
show, among other things, that the seizure was unreasonable. Here,
Jarvis alleges that Officer Knapp seized her—without cause and
reasonable suspicion.
The Fourth Amendment prohibits illegal seizures. U.S. Const.
Amend. IV. “In order to determine whether an individual's Fourth
Amendment rights have been violated, the Court must engage in a two-
part analysis: (1) considering all of the circumstances of the case, was
there a ‘seizure’ within the meaning of the Fourth Amendment; and
(2) if there was a seizure, was such seizure reasonable.” Jie Yin v.
NFTA, 188 F. Supp. 3d 259, 270 (W.D.N.Y. 2016). As to the first prong:
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 5 of 97

6
“an individual is seized for purposes of the Fourth Amendment when
the officer, by means of physical force or show of authority, terminates
or restrains [the individual’s] freedom of movement.” Jackson v. City of
New York, 939 F. Supp. 2d 235, 246 (E.D.N.Y. 2013) (cleaned up). As to
the second prong: a seizure is reasonable “if the officer has a reasonable
suspicion supported by articulable facts that criminal activity may be
afoot, even if the officer lacks probable cause.” Id.
Jarvis plausibly alleges that she was seized. “Temporary detention
of individuals . . . by the police, even if only for a brief period and for a
limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning
of” the Fourth Amendment.” Dempsey v. City of Rochester, 761 F. Supp.
3d 607, 628 (W.D.N.Y. 2025). Here, Jarvis alleges that Officer Knapp
“pushed her against a wall while applying handcuffs.” (Amended
Complaint, Dkt. 9, pg. 3, at ¶2) (cleaned up). Doubtless, a handcuffed
citizen—who is pressed against a wall—does not feel free to leave. As a
result, Jarvis plausibly alleges that she was seized. See United States v.
Mendenhall, 446 U.S. 544, 554 (1980). (“A person has been seized
within the meaning of the Fourth Amendment only if, in view of all of
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 6 of 97

7
the circumstances surrounding the incident, a reasonable person would
have believed that [they were] not free to leave.”).
Jarvis also plausibly alleges that the seizure was unreasonable.
Construing the Amended Complaint liberally, Jarvis argues that Officer
Knapp handcuffed her without reasonable suspicion or probable cause.
(Amended Complaint, Dkt. 9, pg. 3, at ¶2). The Fourth Amendment
prohibits such conduct. See Torres v. Madrid, 592 U.S. 306, 325 (2021)
(“The Fourth Amendment does not forbid all or even most seizures—
only unreasonable ones.”). That said, Jarvis has plausibly alleged that
the seizure was unreasonable.
To recap, Jarvis has plausibly alleged prong one—that she was
seized—and prong two—that the seizure was unreasonable. The
District Court should therefore allow Jarvis’s illegal seizure claim to
proceed.
B. The District Court should allow Jarvis’s illegal search
claim to proceed.
The District Court should allow Jarvis’s illegal search claim to
proceed. The Fourth Amendment prohibits illegal searches. U.S. Const.
Amend. IV. A Fourth Amendment search “occurs when the police
intrude upon a person’s reasonable expectation of privacy or if the police
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 7 of 97

8
otherwise trespass upon one’s person, house, papers, or effects for the
purpose of acquiring information.” Jennings v. Decker, 359 F. Supp. 3d
196, 207–08 (N.D.N.Y. 2019). Here, Jarvis’s Amended Complaint
plausibly alleges that Knapp and Matthewson searched her without
cause. But it neither alleges that legal documents were taken and used
as evidence in her criminal case nor that the officers harmed her by
opening and examining her papers. See (Amended Complaint, Dkt. 9,
pgs. 3-6); see also Dayter v. Caputo, No. 19-CV-0477 (TJM/TWD), 2019
WL 3037504, at *5 (N.D.N.Y. 2019) (cleaned up) (“Heck, however, does
not require dismissal of any claim whose adjudication in favor of the
plaintiff would not necessarily invalidate his conviction or sentence.”).
In fact, Jarvis’s cases have already been dismissed. (Amended
Complaint, Dkt. 9, pg. 4, at ¶5). As a result, this Court recommends
allowing Jarvis’s illegal search claim to proceed.
C. The District Court should dismiss Jarvis’s excessive force
claim because her allegations cannot support a
handcuffing-based-excessive-force claim.
The Court recommends dismissing Jarvis’s excessive force claim
without prejudice and with leave to amend. To plausibly allege a Fourth
Amendment excessive force claim, plaintiffs must plausibly allege that
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 8 of 97

9
the defendant officer’s use of force was objectively unreasonable under
the circumstances. Here, Jarvis only states that she was handcuffed too
tightly. Without more, Jarvis’s Amended Complaint does not plausibly
allege an excessive force claim. In consequence, the District Court
should dismiss Jarvis’s excessive force claim.
“The Fourth Amendment prohibits the use of excessive force in
making an arrest.” Brown v. City of New York, 798 F.3d 94, 100 (2d Cir.
2015). To plausibly allege a Fourth Amendment handcuffing-based-
excessive-force claim, plaintiffs must allege three non-dispositive
factors. See Cugini v. City of New York, 941 F.3d 604, 613 (2d Cir.
2019). These factors include: (1) whether “the arrestee’s handcuffs were
unreasonably tight,” (2) “the degree of injury to the arrestee’s wrist,”
(3) “whether an officer reasonably should have known during
handcuffing that [their] use of force was excessive.” Noel v. Laibach, No.
24-CV-6603, 2025 WL 3003717, at *4 (W.D.N.Y. Oct. 27, 2025). No one
factor is dispositive. See Horace v. Gibbs, 802 F. App’x 11, 16 (2d Cir.
2020) (summary order) (reversing the District Court’s grant of summary
judgment because “the District Court, having adopted completely the
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 9 of 97

10
magistrate[] [judge’s] recommendation, erred by treating one factor—
the absence of serious injury—as dispositive”).
Jarvis has not plausibly alleged an excessive force claim. On her
second telling of the story, Jarvis claims that Officer Knapp approached
her, accused her of possessing an open container, demanded
identification, “pushed her against a wall while applying handcuffs.”
(Amended Complaint, Dkt. 9, pg. 3, at ¶2). The handcuffing caused
Jarvis to suffer “pain and bruising.” (Id.). Construing the Complaint
liberally, Jarvis paints a picture of Officer Knapp using force against
her for no reason. See (id.). Jarvis’s argument must be that Knapp’s
conduct was unreasonable. See Cugini, 931 F.3d at 613. (“A plaintiff
satisfies this requirement if either the unreasonableness of the force
used was apparent under the circumstances, or the plaintiff signaled
her distress, verbally or otherwise, such that a reasonable officer would
have been aware of her pain, or both.”). But the Complaint does not
bear that out.
The only factor Jarvis alleges is degree of injury, and that
allegation is insufficient. “A claim of excessive force is not established
by allegations that overly tight handcuffs caused minor, temporary
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 10 of 97

11
injuries.” Gonzalez v. Bronx Cnty. Hall of Just. Ct. Officer Mark
Hirschman Shield 7421, 15-CV-810, 2016 WL 354913, at *4 (S.D.N.Y.
2016). In fact, Jarvis’s allegations of bruising and pain “to her wrists as
a result of the tight handcuffs are precisely the type of minor injuries
routinely held by courts in this circuit to be insufficient to state a claim
of excessive force.” Id.; see also Christian v. Kelly, No. 14-CV-07416,
2016 WL 3162056, at *3 (E.D.N.Y. 2016) (collecting cases).
The Court cannot find that the Complaint plausibly alleges the
remaining factors. “Treating one factor—the absence of injury—as
dispositive, without considering other factors such as the reasonlessness
of tight handcuffs under the circumstances, and whether the defendants
ignored the plaintiff’s complaints” is error. Horace, 802 F. App’x at 15-
16. And while the Court tries to examine the two remaining factors,
Jarvis “ fails to provide any details . . . such as the specific
circumstances in which the handcuffs were used, whether [s]he
informed the officers engaged with [her] that the handcuffs were too
tight, or whether the officers otherwise should have known the
handcuffs were too tight.” Noel v. Clouston, No. 21-CV-6559, 2022 WL
22945380, at *4 (W.D.N.Y. 2022) (dismissing the plaintiff’s excessive
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 11 of 97

12
force claim). Altogether, the Court cannot find that Jarvis is unable to
plausibly alleged a Fourth Amendment excessive-force. So this Court
recommends the District Court dismiss Jarvis’s excessive force claim
without prejudice and with leave to amend.
Even if the District Court considers Jarvis’s statement—that
Knapp walked up to her, “demanded identification[,] and pushed her
against a wall while applying handcuffs so tightly it caused pain and
bruising”— to be context, the Court should still find Jarvis’s excessive
force claim insufficiently pleaded. (Amended Complaint, Dkt. 9, pg. 1, at
¶2); see also Horace, supra. Jarvis does not plausibly allege that Officer
Knapp knew the handcuffs were too tight and the injury factor weighs
against Jarvis. See Cugini, 931 F.3d at 613; see also Christian, 2016 WL
3162056, at *3.
D. The District Court should dismiss Jarvis’s First
Amendment retaliation claim because the Complaint does
not allege that her speech was protected, that Defendants
were motivated by Jarvis’s speech, or that Defendants’
actions chilled Jarvis’s speech.
The Court recommends dismissing Jarvis’s First Amendment
retaliation claim without prejudice and with leave to amend. To
plausibly allege a First Amendment retaliation claim, plaintiffs must at
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 12 of 97

13
least show that their speech was protected, and the speech caused the
government actor to retaliate. Here, Jarvis has failed to allege either.
So the District Court should dismiss Jarvis’s First Amendment
retaliation claim.
“The government may not retaliate against an individual for
engaging in protected speech under the First Amendment.” Thomas v.
Town of Lloyd, 711 F. Supp. 3d 122, 136 (N.D.N.Y. 2024) (Hurd J.). To
plausibly allege a First Amendment retaliation claim, plaintiffs must
allege that they: (1) have “an interested protected by the First
Amendment; (2) the defendants actions were motivated or substantially
caused by” the plaintiff’s “exercise of that right; and (3) the defendants
actions effectively chilled the exercise of the plaintiff’s First
Amendment rights.” Galarza v. Monti, 327 F. Supp. 3d 594, 603
(S.D.N.Y. 2018). “The existence of probable cause defeats a First
Amendment claim premised on the allegation that defendants arrested
a plaintiff based on a retaliatory motive.” Caravalho v. City of New
York, 732 F. App’x. 18, 23 (2d Cir. 2018) (summary order).
Jarvis has not plausibly alleged a First Amendment protected
interest. First, Jarvis argues that she has a protected interest in not
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 13 of 97

14
giving police officers her name. No such interest exists. Cf. Caravalho,
732 F. App’x. at 22 (citing New York’s disorderly conduct statute
approvingly where one element of the statute requires prosecutors to
prove that the accused refused to comply with a lawful order). Jarvis
also argues that Knapp and Matthewson interfered with her right to
access the Courts. (Amended Complaint, Dkt. 9 at pg. 5). This argument
fails for two reasons. First “prisoners have a constitutional right of
access to the courts that gives rise to a number of derivative rights,
including the right to access legal materials to prepare a case, and the
right of indigent inmates to be provided with paper and pens to draft
legal documents and stamps to mail them.” Issiah Travis v. Department
Of Corrections (NYC) et. al., No. 25-CV-5094, 2025 WL 3482877, at *3
(S.D.N.Y. Dec. 3, 2025) (emphasis added) (cleaned up). Jarvis is not an
incarcerated person. So this right does not apply. Leading to the second
reason Jarvis’s argument is wrong: there is no free-floating First
Amendment access-to-courts right for the non-incarcerated. That said,
Jarvis’s Complaint does not plausibly allege a First Amendment
protected interest.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 14 of 97

15
Even if the District Court were to disagree with that assessment,
Jarvis also fails to plausibly allege the second and third elements of a
First Amendment Retaliation claim. Jarvis “does not allege any causal
connection between any of” her “protected First Amendment speech and
the adverse actions taken by the Officers.” Thomas, 711 F. Supp. 3d at
136 (denying plaintiff’s First Amendment retaliation claim). Likewise,
nothing in Jarvis’s Amended Complaint alleges that her speech was
chilled. See (Amended Complaint, Dkt. 9). In sum, Jarvis has not
plausibly alleged a First Amendment retaliation claim. So, the District
Court should dismiss Jarvis’s First Amendment retaliation claim
without prejudice and with leave to amend.
E. The District Court should dismiss Jarvis’s municipal
liability claim because she does not offer any policy or
practice that caused the constitutional violations she
purportedly suffered.
The Court recommends dismissing Jarvis’s municipal liability
claim without prejudice and with leave to amend. To plausibly allege
municipal liability claims, plaintiffs must plead that the municipality
had a policy or practice that caused the plaintiff’s constitutional
deprivation. Here, Jarvis does not plead anything of the sort. As a
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 15 of 97

16
result, the District Court should dismiss Jarvis’s Complaint as to this
issue.
Under § 1983, a municipality is responsible only for its “own
illegal acts” and cannot be held vicariously liable for the constitutional
violations of its employees. Connick v. Thompson, 563 U.S. 51, 60
(2011). A municipality may be held liable only where an “official
municipal policy” causes the constitutional deprivation. Id. (quoting
Monell v. Department of Social Services, 436 U.S. 658, 690 (1978)).
“Official municipal policy” includes laws passed by legislators, acts of
policymaking officials, and “practices so persistent and widespread as to
practically have the force of law.” Id. at 61.
Plaintiffs may satisfy the policy or custom requirement in one of
four ways: (1) “a formal policy officially endorsed by the municipality;”
(2) “actions taken by government officials responsible for establishing
the municipal policies that caused the particular deprivation in
question;” (3) “a practice so consistent and widespread that, although
not expressly authorized, constitutes a custom or usage of which a
supervising [policymaker] must have been aware;” or (4) “a failure by
policymakers to provide adequate training or supervision to
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 16 of 97

17
subordinates to such an extent that it amounts to deliberate
indifference to the rights of those who come into contact with the
municipal employees.” Brandon v. City of New York, 705 F. Supp. 2d
261, 276-77 (S.D.N.Y. 2010).
The District Court should dismiss Jarvis’s Monell claim. Jarvis
presumes that “The City of Syracuse maintained policies or customs, or
failed to properly train, supervise, or discipline its officers—including
Knapp and Matthewson— that resulted in Plaintiff’s constitutional
violations.” (Amended Complaint, Dkt. 9, at pg. 6). (cleaned up). Yet
there are no factual allegations to support this claim. See generally
(Amended Complaint, Dkt. 9). Jarvis’s conclusory statement is
insufficient to plausibly allege a Monell claim. See Gottlieb v. County of
Orange, 84 F.3d 511, 518 (2d Cir. 1996) (“In order to establish the
liability of a municipality in an action under § 1983 for unconstitutional
acts by a municipal employee below the policymaking level, a plaintiff
must show that the violation of [their] constitutional rights resulted
from a municipal custom or policy.”). That said, the Court recommends
dismissing Jarvis’s Monell claim without prejudice and with leave to
amend.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 17 of 97

18
F. The District Court should allow Jarvis to amend her
complaint.
Generally, before courts dismiss a pro se complaint or any part of the
complaint on its own, they should afford the plaintiff the opportunity to
amend at least once; but leave to re-plead may be denied where any
amendment would be futile. See Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993). Futility is present when the problem with a
plaintiff’s causes of action is substantive such that better pleading will
not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(citation omitted). Here, there is no futility because Jarvis can amend
her Complaint to include facts that make out each claim. Thus, the
Court recommends finding no futility. If the District Court accepts this
recommendation and Jarvis elects to do amend, she will be filing a
Second Amended Complaint. The Court reminds Jarvis that
notwithstanding her pro se status, she will not be afforded endless
opportunities to amend her pleading.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 18 of 97

19
V. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the District Court allow Jarvis’s illegal
seizure claim to PROCEED; and it is further
RECOMMENDED, that the District Court allow Jarvis’s illegal
search claim to PROCEED; and it is further
RECOMMENDED, that Jarvis’s Fourth Amendment excessive
force claim should be DISMISSED WITHOUT PREJUDICE and
WITH LEAVE TO AMEND; and it is further
RECOMMENDED, that Jarvis’s First Amendment retaliation
claim should be DISMISSED WITHOUT PREJUDICE and WITH
LEAVE TO AMEND; and it is further
RECOMMENDED, that Jarvis’s Monell claim should be
DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO
AMEND.
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 19 of 97

20
WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636 (b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: December 23, 2025.
__________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 20 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Holmes v. Trapasso, S.D.N.Y., May 20, 2025
705 F.Supp.2d 261
United States District Court, S.D. New York.
Frank BRANDON, Plaintiff,
v.
The CITY OF NEW YORK, P.O. Said Salim, Shield No. 09517, Individually and in his Official Capacity,
P.O. Andro Stambuk, Shield No. 28510, Individually and in his Official Capacity, P.O. Marc Klausner, Shield
No. 01983, Individually and in his Official Capacity, P.O.S “John Doe” # 1–10, Individually and in their
Official Capacities, (the name John Doe being fictitious, as the true names are presently unknown), Defendants.
No. 07 Civ. 8789(LAP)
|
March 30, 2010.
Synopsis
Background: Detainee brought action against city and police officers, alleging civil rights violations. Defendants moved for
summary judgment.
Holdings: The District Court, Loretta A. Preska, Chief Judge, held that:
[1] fact issues existed whether officer had probable cause to arrest detainee;
[2] non-initiating officers were entitled to qualified immunity as to false arrest claim;
[3] fact issues existed whether grand jury indictment was secured through bad faith or perjury;
[4] defendants did not maliciously engage in legal process;
[5] fact issues existed whether detainee was denied right to fair trial; and
[6] detainee failed to establish municipal policy, practice or custom that led to alleged constitutional violations.
Motion granted in part and denied in part.
Procedural Posture(s): Motion for Summary Judgment.
West Headnotes (28)
[1] False Imprisonment Nature and Elements of False Imprisonment
Under New York law, elements of false imprisonment or false arrest claim are: (1) defendant's intentional confinement
of plaintiff; (2) plaintiff's consciousness of confinement; (3) absence of consent to confinement; and (4) absence of
confinement being otherwise privileged.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 21 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
16 Cases that cite this headnote
[2] Civil Rights Arrest and detention
There can be no federal civil rights claim for false arrest where arresting officer had probable cause. U.S.C.A.
Const.Amend. 4; 42 U.S.C.A. § 1983.
5 Cases that cite this headnote
[3] Search, Seizure, and Arrest What constitutes probable cause in general
Probable cause is established when arresting officer has knowledge or reasonably trustworthy information sufficient
to warrant person of reasonable caution in belief that offense has been committed by person to be arrested. U.S.C.A.
Const.Amend. 4.
[4] Civil Rights Criminal law enforcement; prisons
False Imprisonment Questions for jury
Summary Judgment Law enforcement activities
Summary Judgment False arrest or imprisonment
Genuine issues of material fact, regarding whether police officer had probable cause to arrest detainee, precluded
summary judgment on detainee's claim against city and police officers, alleging false arrest under New York law and
federal civil rights statute. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.
7 Cases that cite this headnote
[5] Civil Rights Sheriffs, police, and other peace officers
Police officers are immune from liability for money damages in suits brought against them in their individual capacities
if their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would
have known.
2 Cases that cite this headnote
[6] Civil Rights Sheriffs, police, and other peace officers
Police officer's actions are objectively unreasonable, and therefore are not entitled to qualified immunity, when no
officer of reasonable competence could have made same choice in similar circumstances.
2 Cases that cite this headnote
[7] Civil Rights Sheriffs, police, and other peace officers
Police officers who did not initiate stop of detainee were entitled to qualified immunity as to detainee's claim against
city and officers, alleging false arrest under New York law and federal civil rights statute; officers believed that
initiating officer pulled car over because he suspected detainee possessed gun, detainee had his hand placed on his
waistband and did not remove it when ordered to by officer, and initiating officer yelled code word for arrest. U.S.C.A.
Const.Amend. 4; 42 U.S.C.A. § 1983.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 22 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
[8] Civil Rights Sheriffs, police, and other peace officers
Plausible instructions from superior or fellow officer support qualified immunity where, viewed objectively in light
of surrounding circumstances, they could lead reasonable officer to conclude that necessary legal justification for his
actions exists.
2 Cases that cite this headnote
[9] Civil Rights Sheriffs, police, and other peace officers
Police officer who initiated stop of detainee was not entitled to qualified immunity as to detainee's claim against city
and officers, alleging false arrest under New York law and federal civil rights statute, since disputed facts existed as
to whether detainee tossed bag of drugs after being approached by officer. U.S.C.A. Const.Amend. 4; 42 U.S.C.A.
§ 1983.
[10] Malicious Prosecution Nature and elements of malicious prosecution in general
To state claim for malicious prosecution under New York law, plaintiff must show that: (1) defendant initiated criminal
proceeding; (2) proceeding terminated in plaintiff's favor; (3) there was no probable cause for criminal charge; and
(4) defendant acted maliciously.
24 Cases that cite this headnote
[11] Malicious Prosecution Finding of grand jury
Under New York law, grand jury indictment creates presumption of probable cause, for purposes of malicious
prosecution action.
30 Cases that cite this headnote
[12] Malicious Prosecution Finding of grand jury
Under New York law, malicious prosecution plaintiff may overcome presumption of probable cause arising from
indictment only by evidence establishing that police witnesses have not made complete and full statement of facts
either to grand jury or to district attorney, that they have misrepresented or falsified evidence, or that they have withheld
evidence or otherwise acted in bad faith.
18 Cases that cite this headnote
[13] Malicious Prosecution Finding of grand jury
Under New York law, for plaintiff to succeed in malicious prosecution claim after having been indicted, he must
establish that indictment was produced by fraud, perjury, suppression of evidence or other police conduct undertaken
in bad faith.
22 Cases that cite this headnote
[14] Malicious Prosecution Finding of grand jury
Under New York law, in order to rebut presumption of probable cause arising from indictment, malicious prosecution
plaintiff must establish what occurred in grand jury and to further establish that those circumstances warrant finding
of misconduct sufficient to erode premise that grand jury acts judicially.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 23 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
23 Cases that cite this headnote
[15] Malicious Prosecution Finding of grand jury
Under New York law, where malicious prosecution plaintiff's only evidence to rebut presumption of indictment is his
version of events, courts will find such evidence to be nothing more than mere conjecture and surmise that indictment
was procured as result of conduct undertaken by defendants in bad faith, which is insufficient to rebut presumption
of probable cause.
31 Cases that cite this headnote
[16] Civil Rights Criminal law enforcement; prisons
Malicious Prosecution Questions for Jury
Summary Judgment Law enforcement activities
Summary Judgment Malicious prosecution
Genuine issues of material fact, regarding whether grand jury indictment was secured through bad faith or perjury,
precluded summary judgment on detainee's claim against city and police officers, alleging malicious prosecution
under New York law and federal civil rights statute. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.
14 Cases that cite this headnote
[17] Civil Rights Persons Liable in General
Personal involvement of defendants in alleged constitutional deprivations is prerequisite to award of damages under
§ 1983. 42 U.S.C.A. § 1983.
8 Cases that cite this headnote
[18] Civil Rights Good faith and reasonableness; knowledge and clarity of law; motive and intent, in general
Although lack of personal involvement may be grounds for dismissing civil rights claim on merits, such lack is also
relevant to defense of qualified immunity, since it goes to question of whether defendant's actions violated clearly
established right. 42 U.S.C.A. § 1983.
10 Cases that cite this headnote
[19] Process Nature and elements in general
Under New York law, malicious abuse of process claim lies against defendant who: (1) employs regularly issued legal
process to compel performance or forbearance of some act; (2) with intent to do harm without excuse or justification;
and (3) in order to obtain collateral objective that is outside legitimate ends of process.
36 Cases that cite this headnote
[20] Process Malice or intent
Under New York law, malicious motive alone does not give rise to cause of action for abuse of process.
10 Cases that cite this headnote
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 24 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
[21] Process Malice or intent
Under New York law, if one uses process of court for its proper purpose, though there is malice in his heart, there
is no abuse of process.
7 Cases that cite this headnote
[22] Civil Rights Criminal prosecutions
Process Particular cases
Detainee who sued city and police officers failed to establish that defendants engaged in legal process to compel
performance or forbearance of some act, as required to maintain claim for malicious abuse of process under New
York law and federal civil rights statute; there was no explicit charge of extortion, blackmail, retribution, or similar
extraneous harmful goal, nor any reasonable inference of such motive on part of defendants. 42 U.S.C.A. § 1983.
34 Cases that cite this headnote
[23] Civil Rights Police, Investigative, or Law Enforcement Activities
Criminal Law Official Action, Inaction, Representation, Misconduct, or Bad Faith
Claim under § 1983 for violation of Sixth Amendment right to fair trial lies where police officer creates false
information likely to influence jury's decision and forwards that information to prosecutors. U.S.C.A. Const.Amend.
6; 42 U.S.C.A. § 1983.
20 Cases that cite this headnote
[24] Civil Rights Criminal law enforcement; prisons
Summary Judgment Law enforcement activities
Genuine issues of material fact, regarding whether detainee was denied right to fair trial due to arresting officer's lack
of probable cause, precluded summary judgment on detainee's claim against city and police officers, alleging Sixth
Amendment violation pursuant to federal civil rights statute. U.S.C.A. Const.Amends. 4, 6; 42 U.S.C.A. § 1983.
6 Cases that cite this headnote
[25] Civil Rights Governmental Ordinance, Policy, Practice, or Custom
Civil Rights Lack of Control, Training, or Supervision; Knowledge and Inaction
To satisfy “policy, custom or practice” requirement for municipal liability under § 1983, plaintiff may allege existence
of: (1) formal policy officially endorsed by municipality; (2) actions taken by government officials responsible for
establishing municipal policies that caused deprivation in question; (3) practice so consistent and widespread that,
although not expressly authorized, constitutes custom or usage of which supervising policy-maker must have been
aware; or (4) failure by policy-makers to provide adequate training or supervision to subordinates to such extent that
it amounts to deliberate indifference to rights of those who come into contact with municipal employees. 42 U.S.C.A.
§ 1983.
484 Cases that cite this headnote
[26] Civil Rights Governmental Ordinance, Policy, Practice, or Custom
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 25 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 6
To establish municipal liability under § 1983, plaintiff must prove causal link between policy, custom or practice and
alleged injury. 42 U.S.C.A. § 1983.
282 Cases that cite this headnote
[27] Civil Rights Governmental Ordinance, Policy, Practice, or Custom
Single incident alleged in complaint, especially if it involved only actors below policy-making level, does not suffice
to show “municipal policy,” for purposes of municipal liability under § 1983. 42 U.S.C.A. § 1983.
57 Cases that cite this headnote
[28] Civil Rights Criminal law enforcement; prisons
Civil Rights Issues, proof, and variance
Detainee who sued city and police officers failed to establish municipal policy, practice or custom that led to alleged
constitutional violations, as required to maintain claim for municipal liability under federal civil rights statute;
detainee's sole proffered evidence pertained to “racial profiling” accusation that was not alleged in complaint. 42
U.S.C.A. § 1983.
103 Cases that cite this headnote
Attorneys and Law Firms
*264 Jon Louis Norinsberg, Law Offices of Jon L. Norinsberg, New York, NY, for Plaintiff.
Steve Stavridis, New York City Law Department, New York, NY, for Defendants.
MEMORANDUM & ORDER
LORETTA A. PRESKA, Chief Judge:
Plaintiff Frank Brandon (“Brandon” or “Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 1983 and 1988 alleging that
Defendants the City of New York, New York Police Officer Said Salim (“Salim”), New York Police Officer Andro Stambuk
(“Stambuk”), New York Police Officer Marc Klausner (“Klausner”), and other unidentified police officers (collectively,
“Defendants”) violated Brandon's civil rights during his arrest and subsequent prosecution for possession of crack cocaine.
Specifically, Brandon alleges that he was: (1) deprived of his federal civil rights under the First, Fourth, Fifth, Eighth, and
Fourteenth Amendments; (2) falsely arrested; (3) unlawfully strip searched; (4) maliciously prosecuted; (5) subjected to the
malicious abuse of process; (6) deprived of his constitutional right to a fair trial; and (7) subjected to the aforementioned due
to the unconstitutional policies and procedures of the City of New York. Defendants now move pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure for judgment on the pleadings as to Brandon's claims that he was unlawfully strip searched
and deprived of his federal civil rights and move pursuant to Rule 56 for summary judgment as to the remaining claims. For
the reasons set forth herein, Defendants' motion is granted in part and denied in part.
*265 I. BACKGROUND 1
The parties give differing accounts of the events leading up to Brandon's arrest and subsequent prosecution. Because of these
differences, each side's version is set forth below.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 26 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 7
A. Brandon's Version
On September 3, 2006 at approximately 2:40 a.m., Brandon left his apartment and walked to the corner store located at 132nd
Street and 7th Avenue to purchase diapers and cigarettes. (Stavridis Decl., Ex. D (“Brandon Dep.”) at 43:9–12, 46:22–47:2.)
On his way to the store, he saw three acquaintances of his on the corner of 131st Street and stopped to talk to them. (Id. at 51:5–
17.) After greeting them and briefly speaking with them, the three of them “walked off” northbound on 7th Avenue toward
the bodega, and Brandon walked behind them toward the bodega on the corner of 132nd Street and 7th Avenue. (Id. at 54:20–
55:20.) At this point, an unmarked car drove up alongside Brandon and the other three individuals. The officers exited the car
and one of them said “hey, how you guys doing?” (Id. at 55:22.) Brandon walked by the three individuals and continued on
to the bodega. One of the officers said “hey,” and when Brandon turned around he was “football-tackled,” searched while on
the ground and cuffed. (Id. at 56:1–9.) Brandon was brought to his feet, and at this point, Salim approached him with a bag of
narcotics (which were later identified to be crack cocaine) and said that the narcotics were Brandon's. (Id. at 71:5–7.)
B. Salim's Version
On September 3, 2006, Defendant Salim, along with Defendants Stambuk and Klausner, were finishing their shift when they
encountered Brandon and three other individuals. (Stavridis Decl., Ex. E (“Hearing Tr.”) at 19:6, 20:8–14.) According to Salim,
while driving southbound on Seventh Avenue, he observed a female walking about forty feet in front of the four males, all of
whom were walking northbound on Seventh Avenue. (Id. at 20:21–22.) Salim heard screaming and noticed one of the males
grabbing the front of his waistband and the female repeatedly looking back at the group and “picking up her pace.” (Id. at
20:15–21:1.) Based on his experience, Salim thought that the individual who was grabbing at his waistband had a firearm. (Id.
at 24:14–19.) Salim drove past the group, parked the car, and the three officers exited the vehicle. (Id. at 21:20–23.) Salim
was walking behind the group headed northbound on Seventh Avenue while Stambuk and Klausner were in front of the group
walking southbound. (Id. at 21:23–22:9.) As he approached the group, Salim observed Brandon take three steps back and throw
an object to the ground against the wall on his left side. (Id. at 22:10–14.) Salim, who never lost sight of the object, picked it
up, recognized that it was crack cocaine, and motioned to his partner that Brandon was a “Charlie,” a code word which meant
that Brandon should be arrested. (Id. at 23:6–12.) Salim continued to walk toward the group, and at that time, Stambuk tackled
Brandon. (Norinsberg Decl., Ex. B (“Salim Dep.”) at 45:21–25.)
*266 C. Stambuk's and Klausner's Versions
Defendant Klausner's version of Brandon's arrest differed from that of Salim's version. According to Klausner, Salim stopped
the car and told Klausner and Stambuk “that guy right there, that guy.” (Hearing Tr. at 190:7–17.) Klausner walked toward
the group and noticed Brandon who stepped back from the other three, and after the three other individuals stopped walking,
he saw Brandon walk with a quicker pace northbound on Seventh Avenue. (Id. at 191:17–192:4.) Klausner testified that after
Brandon had separated himself from the group, Klausner observed that Brandon had his hand in his waistband and did not show
the officers his hands even after Stambuk ordered him to show them his hands. (Id. at 193:7–14.) Klausner never observed the
defendant drop anything on the ground nor did he frisk any of the four individuals. (Id. at 193:18–23.)
According to Officer Stambuk, after the officers exited the vehicle, he noticed Brandon walking behind the group and saw that
his hand was in his waistband. (Id. at 212:7–22.) Stambuk testified that he started watching Brandon as soon as he separated
from the group and that he never saw Brandon drop, throw, or toss anything. (Id. at 222:8–24.) Stambuk repeatedly asked to see
Brandon's hands, and when Brandon did not show Stambuk his hands, he tackled him. (Id. at 212:24–213:4.) Stambuk testified
that Salim never identified which of the four individuals prompted him to stop the car. (Id. at 214:2–8.) In addition, none of
the officers searched the other three individuals after Brandon's arrest. (Id. at 214:1–22.) Finally, Stambuk testified that he did
not observe any of the other individuals grabbing his waistband, nor did he remember seeing a female walking forty feet ahead
of the four men. (Id. at 221:3–16.)
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 27 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 8
D. Criminal Proceedings
Brandon was arrested and processed on September 3, 2006. The arrest paperwork and criminal court complaint were completed
by Salim. (Def. 56.1 ¶ 12) Brandon was indicted on October 27, 2006 on one count of Criminal Possession of a Controlled
Substance in the Fifth Degree. (Stavridis Decl., Ex. C at 18.) Both Plaintiff and Salim testified at the Grand Jury proceedings.
(Def. 56.1 ¶ 20; Norinsberg Decl., Ex. I.) On December 16, 2006, Brandon moved for an order to inspect the grand jury minutes
and, upon inspection, for an order dismissing the indictment on the basis that there was insufficient evidence to support the
indictment. (Def. 56.1 ¶ 21.) By order dated January 17, 2007, Justice Gregory Carro granted the motion to inspect the grand
jury minutes and upon such inspection found that the evidence presented to the grand jury was legally sufficient to support the
indictment and also granted Brandon's request for an evidentiary hearing. (Id. ¶ 22.)
On February 28, 2007 an evidentiary hearing was held before Justice Roger Hayes. (Stavridis Decl., Ex. C at 18.) At the hearing,
the People presented three witnesses: Salim, Klausner, and Stambuk; and Brandon presented two witnesses: Tameka Elmore
(Brandon's girlfriend) and Frank Brandon, Sr. (Id.) Upon the conclusion of testimony, Assistant District Attorney Adrian Rosales
requested that the court grant Brandon's motion to suppress the crack cocaine recovered at the scene of the arrest because the
“People [did] not believe that [they had] met their burden of going forward in this case.” (Hearing Tr. at 237:4–6.) Justice
Hayes agrees with ADA Rosales and stated that “It is clear you are not saying that you disbelieve any one or more of your
witnesses but that you have a certain burden and that in your evaluation, you said, the three witnesses *267 that were called,
[you have] made the critical legal judgment ... that you [could not] meet your burden ....” (Id. at 238:7–17.) On April 24, 2007,
the District Attorney's Office formally recommended dismissal noting that “Salim's version of events leading to the arrest of
the defendant was later contradicted by the testimony of his fellow officers, clearly making officer Salim's version of events
implausible.” (Norinsberg Decl., Ex. G.)
II. DISCUSSION
A. Legal Standards
i. Rule 12(c) Standard
Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “The standard for addressing a Rule 12(c) motion
for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Cleveland
v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006).
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A pleading that
offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
Id. at 557, 127 S.Ct. 1955.
In Iqbal, the Supreme Court set forth a “two-pronged” approach for analyzing a motion to dismiss. Iqbal, 129 S.Ct. at 1950. First,
a court must accept a plaintiff's factual allegations as true and draw all reasonable inferences from those allegations in plaintiff's
favor. Id. at 1949–50. The court may then proceed to identify “pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth.” Id. at 1950. Once the court has stripped away the conclusory allegations, it must
determine whether the complaint's “well-pleaded factual allegations ... plausibly give rise to an entitlement to relief.” Id. “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.” Id. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 28 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 9
has acted unlawfully.” Id. Evaluating the plausibility of a plaintiff's claim is a “context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id. (citation omitted).
ii. Summary Judgment Standard
Defendants are entitled to summary judgment only “ ‘if the pleadings, depositions, answers to interrogatories, and the admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [defendants are]
entitled to judgment as a matter of law.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)
(quoting Fed.R.Civ.P. 56(c)). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also Overton v. N.Y. State Div. of Military and
Naval Affairs, 373 F.3d 83, 89 (2d Cir.2004).
*268 In assessing whether summary judgment is proper, the Court construes the evidence in the light most favorable to the non-
moving party. Lucente v. IBM Corp., 310 F.3d 243, 253 (2d Cir.2002). The moving party bears the initial burden of providing
the basis for the motion and of identifying the evidentiary materials, if any, supporting the moving party's position. See Grady
v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir.1997). The non-moving party must then “ ‘come forward with specific facts
showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). Mere speculation and conjecture will not suffice. See Niagara
Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir.2003).
B. Analysis
i. Deprivation of Federal Civil Rights and Unlawful Search Claims
Defendants move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure as to Brandon's
claims that he was deprived of his federal civil rights and that he was unlawfully strip searched. In his brief, Brandon did not
raise any arguments opposing Defendants' motion regarding these two claims. Accordingly, the Court deems Brandon's first
and third claims abandoned. See, e.g., Bonilla v. Smithfield Assoc. LLC, 09 Civ. 1549, 2009 WL 4457304, at *4 (S.D.N.Y. Dec.
4, 2009) (dismissing plaintiff's claims as abandoned by failing to address them in his opposition motion to defendant's motion to
dismiss all claims); Thomas v. Atl. Express Corp., 07 Civ.1978, 2009 WL 856993, at *2 (S.D.N.Y. Mar. 31, 2009) (“[Defendant]
has moved to dismiss [plaintiff's] due process and breach of contract claims. In his opposition, [plaintiff] failed to respond
to [defendant]'s argument that his due process claim should be dismissed, and therefore that claim is deemed abandoned.”);
Burchette v. Abercrombie & Fitch Stores, Inc., 08 Civ. 8786, 2009 WL 856682, at *9 (S.D.N.Y. Mar. 30, 2009) (dismissing
plaintiff's constructive discharge claim because plaintiff abandoned it by failing to address it in her opposition motion to
defendant's motion to dismiss all claims); Bellegar de Dussuau v. Blockbuster, Inc., No. 03 Civ. 6614, 2006 WL 465374, at
*7 (S.D.N.Y. Feb. 28, 2006) (finding claim abandoned by virtue of plaintiff's failure to address it in opposition to defendant's
summary judgment motion on the claim); Hanig v. Yorktown Cent. Sch. Dist., 384 F.Supp.2d 710, 723 (S.D.N.Y.2005)
(“[B]ecause plaintiff did not address defendant's motion to dismiss with regard to this claim, it is deemed abandoned and is
hereby dismissed.”); Anti–Monopoly, Inc. v. Hasbro, Inc., 958 F.Supp. 895, 907 n. 11 (S.D.N.Y.) (“[T]he failure to provide
argument on a point at issue constitutes abandonment of the issue .... which provides an independent basis for dismissal.”), aff'd,
130 F.3d 1101 (2d Cir.1997), cert. denied, 525 U.S. 813, 119 S.Ct. 48, 142 L.Ed.2d 37 (1998).
Even if the claims were not deemed abandoned, however, the Complaint is wholly devoid of factual allegations and does not set
forth a plausible cause of action. Brandon's claim that he was deprived of his federal civil rights is indistinguishable from his
other, more specific claims of malicious prosecution, false arrest, and malicious abuse of process. This catchall claim alleges
generally that Defendants deprived Brandon of “the rights, privileges and immunities guaranteed to citizens of the United States
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 29 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 10
by the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution” in violation of 42 U.S.C. § 1983. (Compl.
¶ 30.) Such general allegations, without supporting facts other than a clause incorporating an entire complaint by reference, are
insufficient *269 to withstand even a motion to dismiss because they do not give “ ‘fair notice of what the claim is and the
grounds upon which it rests.’ ” Sforza v. City of New York, No. 07 CV 6122, 2009 WL 857496, at *12 (S.D.N.Y. March 31,
2009) (quoting Leibowitz v. Cornell University, 445 F.3d 586, 591 (2d Cir.2006)). Moreover, Brandon's conclusory allegation
that he was “subjected to an illegal and improper strip-search” appears at the end of the Complaint and is not supported by any
of the factual allegations in the Complaint. (Compl. ¶ 39.) In fact, Brandon alleges that after he was tackled he was unlawfully
searched for narcotics and other contraband, but he makes no factual allegations concerning a strip search. Such a conclusory
allegation fails to put the Defendants on notice and does not contain sufficient “factual content that allows the court to draw the
reasonable inference that the [Defendants are] liable for the misconduct alleged.” Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct.
1937, 1950, 173 L.Ed.2d 868 (2009).
ii. False Arrest
[1] Brandon may bring an action for false arrest under state tort law or pursuant to 42 U.S.C. § 1983 based on unreasonable
seizure in violation of the Fourth Amendment. The elements of the state and federal claims are substantially the same. See
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996); Savino v. City of New York, 331 F.3d 63, 75 (2d Cir.2003). Under New York
law, the elements of a false imprisonment or false arrest claim are: (1) defendant's intentional confinement of the plaintiff; (2)
plaintiff's consciousness of the confinement; (3) an absence of consent to the confinement; and (4) an absence of the confinement
being “otherwise privileged.” See Singer v. Fulton Co. Sheriff, 63 F.3d 110, 118 (2d Cir.1995); Broughton v. State, 37 N.Y.2d
451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975); see also Wallace v. Kato, 549 U.S. 384, 388–89, 127 S.Ct. 1091, 166
L.Ed.2d 973 (2007).
[2] [3] [4] The issue in this case for Brandon's false arrest claim and his malicious prosecution claim (see infra Part II.B.iii)
is “the presence, or absence, of probable cause for both the arrest and subsequent prosecution of” Brandon. Boyd v. City of New
York, 336 F.3d 72, 75 (2d Cir.2003). “There can be no federal civil rights claim for false arrest where the arresting officer had
probable cause.” Singer, 63 F.3d at 118; see Feinberg v. Saks & Co., 56 N.Y.2d 206, 210, 451 N.Y.S.2d 677, 436 N.E.2d 1279
(1982) (Probable cause is “a complete defense to a cause of action for false arrest ....”). Probable cause is established “when the
arresting officer has ‘knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in
the belief that an offense has been committed by the person to be arrested.’ ” O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d
Cir.1993) (quoting Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir.1989)). “The defendant has the burden of raising
and proving the affirmative defense of probable cause.” Rodriguez v. City of New York, 149 Misc.2d 295, 563 N.Y.S.2d 1004,
1005 (N.Y.Sup.Ct.1990) (citing Broughton, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310.) Here, both the arrest and
subsequent prosecution of Brandon were based on the facts and documents provided by Salim. (Def. 56.1 ¶¶ 12–13.) Therefore,
the issue for the Court to determine is whether Salim's account of Brandon's arrest constituted sufficient information to warrant
a reasonable belief that Brandon possessed cocaine. Based on the record before the Court, an issue of material fact exists as to
whether Salim had probable cause to arrest Brandon.
The key issue in this case is whether Brandon possessed the cocaine and tossed *270 the bag containing the drugs in plain
view of Salim. On the one hand, Brandon testified that he did not throw anything on the ground and that he believed Salim
“pulled [the drugs] out of [Salim's] pocket.” (Brandon Dep. at 74:20–22, 95:20–25.) Salim, on the other hand, testified at the
evidentiary hearing as well as in his deposition in this case that, as he approached the group of individuals from the south side
of the street, he saw Brandon take “three steps back from the other individuals” and throw “an object to the ground to the left
side.” (Hearing Tr. at 22:10–23; see Salim Dep. at 32:14–21.) In fact, during his deposition Salim said that he was “100 percent
sure [he] saw [Brandon] throw an object.” (Salim Dep. at 34:10–11.) Salim's version of events, however, was contradicted by
Stambuk's testimony. Stambuk testified that as he approached the group he saw Brandon step back from the group, and at this
point, Stambuk focused his attention on Brandon. (Hearing Tr. at 222:18–21.) Stambuk further testified that he did not observe
Brandon drop, throw, or toss anything. (Id. at 222:8–16.) Therefore, considering Brandon's contention that he never tossed
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 30 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 11
the bag, together with Salim's claim that he observed Brandon toss the bag as he stepped back from the group and Stambuk's
observation that he did not see Brandon toss the bag as he stepped back from the group, the Court is left with an issue of fact
that must be decided by the jury.
In Curry v. City of Syracuse, the Court of Appeals was faced with a similar set of facts. 316 F.3d 324 (2d Cir.2003). There, the
plaintiff, Curry, was chased down and apprehended by a police officer, Lynch. As Lynch tried to restrain Curry, he stated that he
observed Curry reach into his sock and throw something away. Id. at 327. Curry testified that he never reached for his sock. Id.
After Curry was arrested, Lynch testified that he returned to the scene and recovered a plastic bag containing crack cocaine. Id.
at 328. In finding that a genuine issue of material fact existed, the Court of Appeals found that the competing stories of Curry
and Lynch were sufficient to raise a question of fact. Id. at 335–36. In addition, Lynch's partner, Officer Yarema, testified about
the struggle between Lynch and Curry but did not testify about Curry's “reaching for his sock or throwing anything away.” Id.
at 336 n. 8. Here, the Court is faced with the competing stories of Brandon and Salim. Moreover, as was the case in Curry
with Officer Yarema's testimony, Officer Stambuk's story does not corroborate Salim's version, and if anything, it buttresses
Brandon's story. Accordingly, because a question of fact exists as to whether the officers had probable cause to arrest Brandon,
Defendants' motion for summary judgment dismissing Brandon's claim of false arrest is denied.
1. Qualified Immunity
[5] [6] Defendants contend that even if probable cause were arguably to exist, they would still be entitled to summary
judgment on the basis of qualified immunity. Police officers are immune from liability for money damages in suits brought
against them in their individual capacities if “their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982). The Court of Appeals has explained that “[e]ven where the plaintiff's federal rights and the scope of the official's
permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was ‘objectively
reasonable’ for him to believe that his actions were lawful at the time of the challenged act.” Lennon v. Miller, 66 F.3d 416,
420 (2d Cir.1995) (quoting *271 Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)); see also
Weyant v. Okst, 101 F.3d 845, 857 (2d Cir.1996) (“[P]ublic officials are entitled to qualified immunity if (1) their conduct does
not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not
violate those rights.”). “A police officer's actions are objectively unreasonable, and therefore are not entitled to immunity, when
‘no officer of reasonable competence could have made the same choice in similar circumstances.’ ” Anthony v. City of New
York, 339 F.3d 129, 138 (2d Cir.2003) (quoting Lennon, 66 F.3d at 420–21).
[7] [8] Based on the record before the Court, Defendants Stambuk and Klausner are entitled to qualified immunity, but Salim
is not. According to Klausner's and Stambuk's version of events, Salim stopped the car after telling the officers “that guy right
there, that guy.” (Hearing Tr. at 190:7–17.) Both Klausner and Stambuk were under the impression that Salim stopped the
car because he believed one of the individuals on the street was carrying a firearm. (Id. at 208:2–4.) As they approached the
group, both officers noticed Brandon had his hand on his waistband, an indicator that a person is carrying a gun. (Id. at 193:7–
14.) In addition, both officers testified that Stambuk asked repeatedly that Brandon show him his hands, and when he did not,
Stambuk tackled him. (Id. at 193:7–14, 212:24–213:4.) Finally, as Stambuk approached the group, he heard Salim yell “Charlie”
which was the officers' code word for arrest. (Id. at 213:5–9.) “ ‘Plausible instructions from a superior or fellow officer support
qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer
to conclude that the necessary legal justification for his actions exists (e.g. a warrant, probable cause, exigent circumstances).’
” Anthony, 339 F.3d at 138 (quoting Bilida v. McCleod, 211 F.3d 166, 174–75 (1st Cir.2000)). Given that (1) Klausner and
Stambuk believed Salim pulled the car over because he suspected one of the individuals on the street possessed a gun, (2)
Brandon had his hand placed on his waistband and did not remove it when ordered to by Stambuk, and (3) Salim yelled the code
word for arrest, it is clear that a reasonable officer would conclude that the necessary legal justification existed for an arrest.
Accordingly, Defendants Stambuk and Klausner are entitled to qualified immunity for the arrest of Brandon.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 31 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 12
[9] In contrast, Defendant Salim is not entitled to qualified immunity because disputed facts exist as to whether Brandon tossed
the bag of drugs. See Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987) (An “arresting officer is entitled to qualified immunity as
a matter of law if the undisputed facts and all permissible inferences favorable to the plaintiff show ... that officers of reasonable
competence could disagree on whether the probable cause test was met.”) (emphasis added). To find that Salim is entitled
to qualified immunity would require the Court to make a credibility determination and, as discussed above, “[r]esolutions of
credibility conflicts and choices between conflicting versions of the facts are matters for the jury, not for the court on summary
judgment.” United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994). Accordingly, Defendant Salim is not entitled to summary
judgment dismissing Brandon's false arrest claim on the basis of qualified immunity.
iii. Malicious Prosecution
[10] The Court of Appeals has held that “[f]reedom from malicious prosecution is a constitutional right that has long been
clearly established.” (Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir.2003)). “Claims for ... malicious prosecution, brought under
§ 1983 to vindicate the Fourth and Fourteenth Amendment right to be free *272 from unreasonable seizures, are ‘substantially
the same’ as claims for ... malicious prosecution under [New York] state law.” Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.2003)
(quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)); see also Savino v. City of New York, 331 F.3d 63, 72 (2d Cir.2003).
To state a claim for malicious prosecution under New York law, the plaintiff must show: (1) “the defendant initiated a criminal
proceeding”; (2) the proceeding terminated in plaintiff's favor; (3) “there was no probable cause for the criminal charge”; and (4)
the defendant acted maliciously. Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir.2004); see also Boyd v. City of New York, 336
F.3d 72, 76 (2d Cir.2003); Savino, 331 F.3d at 72; Kinzer v. Jackson, 316 F.3d at 143; Jocks, 316 F.3d at 136; Colon v. City of New
York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983). In addition, the Court of Appeals requires that in order “to
sustain a § 1983 malicious prosecution claim, there must be a seizure or other perversion of proper legal procedures implicating
the claimant's personal liberty and privacy interests under the Fourth Amendment.” Washington v. County of Rockland, 373
F.3d 310, 316 (2d Cir.2004) (internal quotation marks omitted); see also Rohman v. New York City Transit Auth., 215 F.3d 208,
215 (2d Cir.2000) (“In order to allege a cause of action for malicious prosecution under § 1983, [the plaintiff] must assert, in
addition to the elements of malicious prosecution under state law, that there was ... a sufficient post-arraignment liberty restraint
to implicate the plaintiff's Fourth Amendment rights.” (emphasis omitted)).
[11] [12] [13] [14] Here, it is undisputed that a criminal proceeding was initiated, that it terminated in Brandon's favor, and
that Brandon suffered a liberty restraint (he was incarcerated for over three months). Therefore, the primary issues before the
Court are whether Defendants had probable cause supporting the criminal charge and whether Defendants acted maliciously.
“Once a suspect has been indicted ... the law holds that the Grand Jury action creates a presumption of probable cause.” Colon, 60
N.Y.2d at 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248; see Boyd, 336 F.3d at 76 (same). A plaintiff may overcome the presumption
“only by evidence establishing that the police witnesses have not made a complete and full statement of the facts either to the
Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or
otherwise acted in bad faith.” Id. at 82–83, 468 N.Y.S.2d 453, 455 N.E.2d 1248. “Thus, in order for a plaintiff to succeed in a
malicious prosecution claim after having been indicted, ‘he must establish that the indictment was produced by fraud, perjury,
the suppression of evidence or other police conduct undertaken in bad faith.’ ” Rothstein, 373 F.3d at 283 (quoting Colon,
60 N.Y.2d at 83, 468 N.Y.S.2d 453, 455 N.E.2d 1248). In order to rebut the presumption of probable cause, a plaintiff must
“establish what occurred in the grand jury and to further establish that those circumstances warrant a finding of misconduct
sufficient to erode the ‘premise that the Grand Jury acts judicially.’ ” Id. at 284 (quoting Colon, 60 N.Y.2d at 82, 468 N.Y.S.2d
453, 455 N.E.2d 1248.) 2
*273 [15] [16] As an initial matter, where a plaintiff's only evidence to rebut the presumption of the indictment is his version
of events, courts will find such evidence to be nothing more than “ ‘mere conjecture and surmise that [the plaintiff's] indictment
was procured as a result of conduct undertaken by the defendants in bad faith,’ ” which is insufficient to rebut the presumption
of probable cause. Reid v. City of New York, 00 Civ. 5164, 2004 WL 626228, at *7 (S.D.N.Y. Mar. 29, 2004) (quoting Savino,
331 F.3d at 73); see also Simmons v. New York City Police Dep't, 97 Fed.Appx. 341, 343 (2d Cir.2004) (“Although [plaintiff]
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 32 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 13
testified that the arresting officer ... told him that the officers would falsify evidence and manipulate line-ups in order to implicate
him, this allegation is not, without more, sufficient to raise an inference that the indictment was procured by fraud or bad faith
conduct.”); Scully v. City of Watertown, No. 03 CV 846, 2005 WL 1244838, at *11 (N.D.N.Y. May 25, 2005) (“The simple
assertion that [plaintiff] was acquitted and therefore the officers must have lied is insufficient to overcome the presumption
created by the grand jury's indictment ....”); Montes v. King, 00 Civ. 4707, 2002 WL 1808209, at *3 n. 5 (S.D.N.Y. Aug. 6, 2002)
(finding that “unsubstantiated speculation” that officer acted in bad faith was not enough to survive summary judgment); Jenkins
v. City of New York, 98 Civ. 7170, 98 Civ. 7338, 1999 WL 782509, at *9, 11 (S.D.N.Y. Sept. 30, 1999) (despite later-discovered
perjury by a civilian witness at the grand jury, plaintiff “failed to produce any evidence of intentional police misconduct and
his allegations are contradicted by the affidavits and contemporaneous documentary record in support of the motion. [Plaintiff]
has thus failed to rebut the presumption that probable cause to commence the proceeding existed.”), aff'd, 216 F.3d 1072 (2d
Cir.2000). However, where, as here, the Court is presented with more than just the plaintiff's version of events, a question of
fact may exist as to the propriety of the grand jury indictment.
In Boyd v. City of New York, the Court of Appeals set forth a “competing testimony plus” standard to assess whether a
plaintiff sufficiently has rebutted the presumption of probable cause. 336 F.3d 72 (2d Cir.2003). In Boyd, plaintiff was arrested
on suspicion that he was in possession of a stolen vehicle. Id. at 74. The central issue in Boyd was whether plaintiff made
incriminating statements before or after he was placed under arrest. Plaintiff testified that he was placed under arrest in his
apartment, was not given his Miranda warnings, and made incriminating statements while walking downstairs with police. Id.
The defendants testified that plaintiff was not placed under arrest until he was outside the building thereby making his statements
the product of a noncustodial interrogation. Id. In finding that plaintiff had satisfied his burden of raising a question of fact as
to whether the indictment *274 was procured by fraud, perjury, or bad faith, the court looked to the police officer's memo
book which seemed to corroborate plaintiff's testimony because it indicated that the plaintiff was arrested inside the building.
Id. at 77. This corroboration, or “plus factor,” coupled with the fact that the court must draw all reasonable inferences in favor
of plaintiff led the court to hold that “a jury could reasonably find the indictment was secured through bad faith or perjury, and
that there was malicious prosecution of [plaintiff].” Id.; see McClellan v. Smith, 439 F.3d 137, 146 (2d Cir.2006) (relying on
Boyd to reverse district court's grant of summary judgment due to defendant police officer's several variations to his version of
events leading to plaintiff's arrest and due to plaintiff's evidence which suggested bad faith on the part of part of defendant).
Here, as in Boyd, the Court is faced with the competing version of events as put forth by Brandon and Salim. In addition, as
discussed more fully above, Stambuk's recollection of the arrest tends to support Brandon's version. Accordingly, when the
Court considers Stambuk's and Brandon's testimony in combination with Salim's testimony, the Court moves beyond a simple
conflict of stories or mistaken memories and into the possibility that Salim did not observe Brandon toss the bag of cocaine
but lied in order to secure an indictment. See Boyd, 336 F.3d at 77. At this stage of the litigation, construing all inferences in
the light most favorable to Brandon, “a jury could reasonably find that the indictment was secured through bad faith or perjury,
and that there was malicious prosecution of [Brandon]. Therefore the issue of probable cause cannot be resolved by summary
judgment.” Id.
Finally, once an issue of fact exists with regard to the possible lack of probable cause, the element of malice becomes an
issue of fact as well. See Ricciuti v. New York City Transit Auth., 124 F.3d 123, 131 (2d Cir.1997) ( “In the present case, as
we have just noted, a jury could find that probable cause for the charges against the plaintiffs was lacking, and that finding
alone would support an inference of malice.” (citing Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir.1996))); see also
Boyd, 336 F.3d at 78 (same). Accordingly, Defendants' motion for summary judgment dismissing Brandon's claim for malicious
prosecution is denied.
1. Qualified Immunity
[17] [18] Defendants Klausner and Stambuk argue that because they had arguable probable cause to arrest Brandon, they
are entitled to qualified immunity and the malicious prosecution claim should be dismissed as against them. It is undisputed
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 33 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 14
that Salim completed the arrest paperwork and criminal court complaint and that Brandon's prosecution was based on facts
provided by Salim. (Def. 56.1 ¶¶ 12–13.) “ ‘[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ ” Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122
(2d Cir.2004) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977)). “Although a lack of personal involvement
may be grounds for dismissing a claim on the merits ... such a lack is also relevant to a defense of qualified immunity because it
goes to the question of whether a defendant's actions violated a clearly established right.” Iqbal v. Hasty, 490 F.3d 143, 153 (2d
Cir.2007), rev'd on other grounds, ––– U.S. ––––, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing McCullough v. Wyandanch
Union Free Sch. Dist., 187 F.3d 272, 280 (2d Cir.1999)). Here, because neither Klausner nor Stambuk was involved in any of
the post-arrest *275 conduct that led to Brandon's prosecution (i.e., drafting the arrest paperwork, swearing to the criminal
complaint, or testifying before the grand jury), each lacks the requisite personal involvement to be liable pursuant to § 1983
and is thus entitled to qualified immunity. 3
iv. Malicious Abuse of Process
[19] As with Brandon's false arrest and malicious prosecution claims, the Court turns to state law to find the elements of the
malicious abuse of process claim. See generally Wilson v. Garcia, 471 U.S. 261, 277, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)
(state law is authoritative source of elements of § 1983 cause of action). In New York, a malicious abuse of process claim
lies against “a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act
(2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the
legitimate ends of the process.” Savino v. The City of New York, 331 F.3d 63, 76 (2d Cir.2003); see Curiano v. Suozzi, 63 N.Y.2d
113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (1984). “In the criminal context, malicious abuse of process is by definition a
denial of procedural due process .... Procedural due process forbids the use of legal process for a wrongful purpose.” Cook v.
Sheldon, 41 F.3d 73, 80 (2d Cir.1994) (internal citations and quotation marks omitted). As examples of the types of collateral
objectives covered by this tort, the New York Court of Appeals has cited the infliction of economic harm, extortion, blackmail
and retribution. See Bd. of Educ. v. Farmingdale Classroom Teachers Ass'n, 38 N.Y.2d 397, 404, 380 N.Y.S.2d 635, 343 N.E.2d
278 (1975).
[20] [21] In his Complaint, Brandon alleges that Defendants issued legal process to place him under arrest and did so with
intent to harm Brandon and “in order to obtain a collateral objective outside the legitimate ends of the legal process.” (Compl.
¶¶ 58–60.) However, “[u]nder New York law ‘a malicious motive alone ... does not give rise to a cause of action for abuse
of process.’ ” Webster v. City of New York, 333 F.Supp.2d 184, 208 (S.D.N.Y.2004) (quoting Curiano, 63 N.Y.2d at 117, 480
N.Y.S.2d 466, 469 N.E.2d 1324). “If [one] uses the process of the court for its proper purpose, though there is malice in his
heart, there is no abuse of process.” Hauser v. Bartow, 273 N.Y. 370, 374, 7 N.E.2d 268 (1937).
[22] Here, Brandon does not allege that Defendants engaged in the legal process to compel performance or forbearance of
some act. Moreover, Brandon alleges only conclusorily that Defendants engaged in the prosecution in order to obtain a collateral
objective that was outside the legitimate ends of the process. (Compl. ¶ 59.) There is neither any explicit charge of extortion,
blackmail, retribution, or similar extraneous harmful goal, nor are there any facts pleaded upon which an inference of such
a motive on the part of Defendants could reasonably be inferred. Accordingly, Defendants' motion for summary judgment
dismissing Brandon's claim for malicious abuse of process is granted.
v. Denial of the Constitutional Right to a Fair Trial
[23] Brandon claims that Defendants' actions in arresting him without probable cause and forwarding false information to
the assistant district attorney deprived him of his constitutional right to a fair trial. Defendants argue that Brandon's fair trial
claim should be dismissed because it is duplicative of his false arrest *276 and malicious prosecution claims. A claim under
§ 1983 for violation of the right to a fair trial lies where a police officer “creates false information likely to influence a jury's
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 34 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 15
decision and forwards that information to prosecutors.” Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir.1997).
The violation of the “accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is
redressable in an action for damages under 42 U.S.C. § 1983.” Id.
[24] As in this case, in Ricciuti the plaintiff brought claims for both malicious prosecution and denial of his fair right to trial
based on the same alleged fabrication of evidence, and the Court of Appeals permitted both claims. Id. at 130–31; see Jovanovic
v. City of New York, No. 04 Civ. 8437(PAC), 2006 WL 2411541, at *13 (S.D.N.Y. Aug. 17, 2006) (relying on Ricciuti and finding
that both malicious prosecution and denial of fair trial claims can coexist). Accordingly, because Brandon's “prosecution was
based on facts and documents provided by Officer Salim” (Def. 56.1 ¶ 13) and a question of fact exists as to whether Salim had
probable cause to arrest Brandon, Defendants' motion for summary judgment dismissing Brandon's fair trial claim is denied.
See Douglas v. City of New York, 595 F.Supp.2d 333, 347 (S.D.N.Y.2009) (“[A] reasonable jury could find defendants lacked
probable cause to arrest plaintiff and forwarded false information to the Bronx district attorney, thereby violating plaintiff's
constitutional right to a fair trial ....”); Taylor v. City of New York, No. 03 CV 6477, 2006 WL 1699606, at *5 (S.D.N.Y. June
21, 2006) (denying motion for summary judgment on plaintiff's denial of a fair trial claim on the basis of discrepancies in the
parties' testimonies as to how the bag of drugs that led to plaintiff's arrest ended up on the ground next to plaintiff).
vi. Municipal Liability
As his final claim, Brandon asserts that the City of New York is liable for the individual Defendants' alleged constitutional
violations pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Municipalities
may be sued directly under § 1983 for constitutional deprivations inflicted upon private individuals pursuant to governmental
custom, policy, ordinance, regulation, or decision.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983) (citing Monell, 436
U.S. at 658, 98 S.Ct. 2018). A municipality is not liable for a § 1983 claim on the theory of respondeat superior but rather
on the basis that its policies or customs “inflict[ed] the injury upon the plaintiff.” Id. “To hold a city liable under § 1983 for
the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Id.; see also Kahn v. Oppenheimer
& Co., No. 08 Civ. 11368, 2009 WL 4333457, at *3 (S.D.N.Y. Dec. 1, 2009).
[25] [26] [27] A plaintiff may satisfy the “policy, custom or practice” requirement in one of four ways. See Moray v. City
of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y.1996). The plaintiff may allege the existence of (1) a formal policy officially endorsed
by the municipality (see Monell, 436 U.S. at 690, 98 S.Ct. 2018); (2) actions taken by government officials responsible for
establishing the municipal policies that caused the particular deprivation in question (see Bd. of County Comm'rs v. Brown,
520 U.S. 397, 404–06, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 483–84, 106
S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion); Walker v. City of New York, 974 F.2d 293, 296 (2d Cir.1992)); (3) a
practice so consistent and widespread that, although not expressly authorized, constitutes a custom *277 or usage of which a
supervising policy-maker must have been aware (see Bd. of County Comm'rs, 520 U.S. at 403–04, 117 S.Ct. 1382; City of St.
Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Monell, 436 U.S. at 690–91, 98 S.Ct. 2018); or
(4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to
deliberate indifference to the rights of those who come into contact with the municipal employees (see Bd. of County Comm'rs,
520 U.S. at 407, 117 S.Ct. 1382; City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Plaintiff
must also prove a causal link between the policy, custom or practice and the alleged injury in order to find liability against a
municipality. See Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983). “ ‘[A] single incident alleged in a complaint, especially
if it involved only actors below the policy-making level, does not suffice to show a municipal policy.’ ” DeCarlo v. Fry, 141
F.3d 56, 61 (2d Cir.1998) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)).
Brandon alleges the “customs, policies, usages, practices, procedures and rules of the City of New York and the New York City
Police Department” that caused the unconstitutional violations included:
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 35 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 16
a) fabricating evidence against innocent persons erroneously arrested during buy-and-bust operations;
b) arresting innocent persons wrongfully apprehended during buy-and-bust operations; and
c) arresting innocent persons notwithstanding the existence of credible evidence which exonerates the accused of any criminal
wrongdoing.
(Compl. ¶ 71.) Defendants argue that Brandon has conducted no Monell discovery and therefore has “no proof to support his
allegations.” (Def. Mem. at 23.) A moving party “may use a memorandum or brief to ‘point to’ the absence of evidence and
thereby shift to the nonmovant the obligation to come forward with admissible evidence supporting its claim.” Feurtado v. City of
New York, 337 F.Supp.2d 593, 599 (S.D.N.Y.2004) (citing Webster v. City of New York, 333 F.Supp.2d 184, 206 (S.D.N.Y.2004)
(“conclusory assertion in its memorandum of law that plaintiffs have no evidence to prove their case” is sufficient to require
plaintiffs to provide evidence of Monell violation in order to avoid summary judgment)). Although the moving party generally
has the burden of showing that no material issue of fact exists, this burden “may be discharged by showing ... that there
is an absence of evidence to support the nonmoving party's case.” PepsiCo, Inc. v. Coca–Cola Co., 315 F.3d 101, 105 (2d
Cir.2002) (internal quotation marks and citations omitted). If the moving party moves for summary judgment on the basis that
the nonmoving party has put forth no evidence to support his claim, “the burden shifts to the nonmoving party to come forward
with ‘specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Fed.R.Civ.P. 56(e)); see generally Celotex Corp.
v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); accord Nebraska v. Wyoming, 507 U.S. 584, 590, 113
S.Ct. 1689, 123 L.Ed.2d 317 (1993). There is “no express or implied requirement in Rule 56 that the moving party support its
motion with affidavits or other similar materials negating the opponent's claim.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
[28] To rebut Defendants' argument, Brandon attaches two exhibits to his opposition brief: (1) the Civilian Complaint Review
Board's June 2001 study, entitled “Street Stop Encounter Report: An Analysis of CCRB Complaints Resulting from the New
York Police Department's ‘Stop and Frisk’ Practices”; and (2) the Office of the Attorney General of the State of New *278
York, Civil Rights Bureau's December 1, 1999 report entitled “New York City Police Department's ‘Stop and Frisk’ Practices:
A Report to the People of the State of New York from the Office of the Attorney General.” (Norinsberg Decl., Exs. J, K.).
Brandon offers the two reports to support his contention that his stop was based on the NYPD's policy of “wrongfully stopping
and detaining African–Americans based on racial profiling.” (Pl. Mem. at 24.) However, the Complaint does not allege that
the improper policy or custom was racial profiling but rather that it was based on the fabricating of evidence in buy-and-bust
operations. (See Compl. ¶ 71.) It is black letter law that a party may not raise new claims for the first time in opposition to
summary judgment. See Beckman v. U.S. Postal Serv., 79 F.Supp.2d 394, 407–08 (S.D.N.Y.2000); see Bush v. Fordham Univ.,
452 F.Supp.2d 394, 406 (S.D.N.Y.2006) (“[C]ourts in this district have consistently ruled that it is inappropriate to raise new
claims for the first time in opposition to summary judgment.”) (internal quotations omitted). Accordingly, because Defendants
assert that Brandon has put forth no evidence to support his Monell claim, thereby shifting the burden to Brandon to produce
some evidence and because Brandon has proffered reports that are irrelevant to his claim, Defendants' motion for summary
judgment dismissing the Monell claim is granted. See, e.g., Miller v. New York City Health & Hosp. Corp., 00 Civ. 140(PKC),
2005 WL 2022016, at *4 (S.D.N.Y. Aug. 22, 2005) (granting summary judgment on Section 1981 claim because plaintiff
provided no evidence of municipal policy or custom); Webster v. City of New York, 333 F.Supp.2d 184, 207 (S.D.N.Y.2004)
(granting summary judgment where “[t]he record ... is barren of specific evidence demonstrating the existence of a municipal
policy or custom such as would satisfy Plaintiffs' burden”).
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment and for judgment on the pleadings [dkt. no. 18] is
GRANTED in part and DENIED in part as follows:
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 36 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 17
1) Defendants' motion for judgment on the pleadings pursuant to Fed. R. 12(c) as to Plaintiff's deprivation of his federal civil
rights and unlawful search claims is GRANTED;
2) Defendants' motion for summary judgment dismissing Plaintiff's malicious abuse of process claim is GRANTED;
3) Defendants' motion for summary judgment dismissing Plaintiff's Monell claim is GRANTED;
4) Defendants' motion for summary judgment dismissing Plaintiff's false arrest, malicious prosecution, and denial of fair
trial claims is GRANTED with respect to Defendants Marc Klausner and Andro Stambuk and DENIED with respect to
Defendant Said Salim.
Accordingly, the only remaining defendant is Officer Said Salim, individually and in his official capacity. Officers Marc
Klausner and Andro Stambuk and the City of New York are dismissed from the action. The remaining parties shall confer and
notify the Court by letter no later than April 9, 2010 how they propose to proceed. The letter shall include a determination by
Plaintiff as to the John Doe defendants. 4
SO ORDERED.
All Citations
705 F.Supp.2d 261
Footnotes
1 The following facts are derived from the following sources: the Complaint (“Compl.”); Defendants' Statement of
Undisputed Facts Pursuant to Local Civil Rule 56.1 (“Def. 56.1”); Declaration of Steve Stavridis in Support of
Defendants' Motion for Summary Judgment (“Stavridis Decl.”) and the accompanying exhibits; Plaintiff's Local Rule
56.1(b) Statement (“Pl. 56.1”); Plaintiff's Response to Defendants' Local Rule 56.1(b) Statement (“Pl. 56.1 Resp.”); and
the Declaration of Jon L. Norinsberg (“Norinsberg Decl.”) and the accompanying exhibits.
2 Defendants argue that because Brandon's indictment created a rebuttable presumption of probable cause and because
Brandon has not unsealed the Grand Jury minutes, it would be impossible for the Court to determine whether the
indictment was procured by fraud, perjury, or bad faith and therefore impossible for Brandon to rebut the presumption.
(Def. Mem. at 5–6.) Brandon has submitted portions of Salim's grand jury testimony to the Court as proof that his
testimony was contradicted by Stambuk's and Klausner's hearing testimony thereby creating a factual dispute sufficient
to overcome the grand jury presumption. (Pl. Mem. at 11.) However, because Brandon does not argue that Salim testified
differently in the grand jury from the way he testified at the hearing or in his deposition, there is no need for the Court
to consider the propriety of unsealing Salim's grand jury minutes. See, e.g., Ramashwar v. City of New York, No. 05
Civ.2021, 2006 WL 23481, at *8 n. 10 (S.D.N.Y. Jan. 5, 2006), aff'd 231 Fed.Appx. 26 (2d Cir.2007) (“In order to
ensure that granting summary judgment here is not a miscarriage of justice, the Court has reviewed the sealed excerpts of
Officer Finnegan's grand jury testimony which Ramashwar provided .... the Court makes no comment on these excerpts,
except to say they do not change the Court's decision.”) Here, as in Ramashwar, the Court has reviewed Salim's grand
jury testimony and finds that because he testified to the same facts in both the state court hearing and in his deposition,
there is no reason to delve into the unsealing issue.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 37 of 97

Brandon v. City of New York, 705 F.Supp.2d 261 (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 18
3 For this same reason, both Klausner and Stambuk are entitled to summary judgment as to Brandon's remaining claims
and are therefore dismissed from this action.
4 With respect to Plaintiff's false arrest and denial of his right to a fair trial, Plaintiff timely filed his complaint on
October 12, 2007, but he failed to substitute the defendants designated as “John Doe” with actual people within the
limitations period. See Owens v. Okure, 488 U.S. 235, 250, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (In section 1983
actions, the applicable limitations period is found in the “general or residual [state] statute [of limitations] for personal
injury actions.”); Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir.1997) (“New York's three-year statute of limitations for
unspecified personal injury actions ... governs section 1983 actions in New York.”). As the Court of Appeals held in
Tapia–Ortiz v. Doe, “[a]lthough [plaintiff] filed his complaint naming the defendant officers as ‘John Does' within the
three-year statute of limitations period, ‘[i]t is familiar law that ‘John Doe’ pleadings cannot be used to circumvent
statutes of limitations because replacing a ‘John Doe’ with a named party in effect constitutes a change in the party
sued.' ” 171 F.3d 150, 151–52 (2d Cir.1999) (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d
Cir.1993) (citations omitted)). Even if Plaintiff were to substitute the actual officers today, Plaintiff could not enjoy the
benefit of relating back to the date of the original filing. See Barrow v. Wethersfield Police Dept., 66 F.3d 466, 470 (2d
Cir.1995) (“Rule 15(c) explicitly allows the relation back of an amendment due to a ‘mistake’ concerning the identity of
the parties (under certain circumstances), but the failure to identify individual defendants when the plaintiff knows that
such defendants must be named cannot be characterized as a mistake.”); Wallace v. Kato, 549 U.S. 384, 397, 127 S.Ct.
1091, 166 L.Ed.2d 973 (2007) (“[T]he statute of limitations upon a § 1983 claim seeking damages for a false arrest in
violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the
claimant becomes detained pursuant to legal process.”); Veal v. Geraci, 23 F.3d 722, 724 (2d Cir.1994) (“[F]or statute
of limitations purposes, a § 1983 claim, including a Sixth Amendment fair trial claim, accrues when the alleged conduct
has caused the claimant harm and the claimant knows or has reason to know of the allegedly impermissible conduct
and the resulting harm.”). However, because the criminal charges against Plaintiff were not dismissed until April 30,
2007, Plaintiff may still add unidentified defendants to his malicious prosecution claim because the three-year statute
of limitations does not expire until April 30, 2010. See Voluntary Ben. Systems, Inc. v. Israel, No. 01 Civ. 8518, 2003
WL 22299211, at *2 (S.D.N.Y. Oct. 7, 2003) (noting that under New York law, a malicious prosecution claim accrues
“after that prosecution terminates favorably to the plaintiff”).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 38 of 97

Caravalho v. City of New York, 732 Fed.Appx. 18 (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Called into Doubt by Parker v. Blackerby, W.D.N.Y., March 26, 2019
732 Fed.Appx. 18
This case was not selected for publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.
Alexander CARAVALHO, Sergio Castillo, Daniel Greenspan,
Joseph Sharkey, Easton Smith, Jennifer Waller, Plaintiffs-Appellants,
Eric Carter, Austin Guest, Thomas Hintze, Plaintiffs,
v.
CITY OF NEW YORK, New York City Police Department, Officer Li, Ahmed, NYPD Officer Abdel-Rahim, Rodriguez,
NYPD Officers John Does, 1-15, the names being fictitious, as the true names and shield numbers are not presently
known, in their individual and official capacities, NYPD Officers Jane Does, 1-15, the names being fictitious, as the
true names and shield numbers are not presently known, in their individual and official capacities, NYPD Department
Chief Joseph Esposito, Nicole Papamichael, Department Inspector Edward Winski, Lieutenant Frank Viviano, Officer
Grantley Bovell, Shield No. 11743, Officer Jabded Ahmed, Shield No. 19415, Officer Alexis Rodriguez, Shield
No. 28722, Officer Cheung Li, Shield No. 5474, Officer Michael Galgano, Shield No. 2671, Defendants-Appellees.
17-1944-cv
|
April 25, 2018
Synopsis
Background: Protesters brought action against city and police officers, alleging under § 1983 that they were falsely arrested
and unlawfully detained, and that defendants violated their First Amendment and due process rights. The United States District
Court for the Southern District of New York, Castel, J., 2016 WL 1274575, granted in part and denied in part defendants'
motion for summary judgment. The District Court, Castel, J., 2016 WL 4154273, denied protesters' motion for reconsideration.
Protesters appealed.
Holdings: The Court of Appeals held that:
[1] officers had probable cause to arrest protestors for disorderly conduct, thus precluding false arrest and First Amendment
retaliation claims;
[2] decision to temporarily close privately-owned public park for protestors' violation of park rules was permissible time, place,
and manner restriction under First Amendment;
[3] detention of protesters for 24 to 30 hours was not excessive; and
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 39 of 97

Caravalho v. City of New York, 732 Fed.Appx. 18 (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
[4] protesters could not maintain claim for denial of their fair trial rights.
Affirmed.
Procedural Posture(s): On Appeal; Motion for Summary Judgment; Motion for Reconsideration.
West Headnotes (4)
[1] Civil Rights Arrest and detention
Constitutional Law Protests and Demonstrations in General
Search, Seizure, and Arrest Disorderly conduct and breach of the peace
Police officers had probable cause to arrest protestors, who had gathered in privately-owned public park, for disorderly
conduct, under New York law, thus precluding their § 1983 false arrest and First Amendment retaliation claims;
officers made several announcements ordering protestors to disperse, and officers observed protesters locking their
arms and legs together, sitting on ground, and refusing to leave. U.S. Const. Amends. 1, 4; 42 U.S.C.A. § 1983; N.Y.
Penal Law § 240.20(6).
19 Cases that cite this headnote
[2] Constitutional Law Protests and Demonstrations in General
Municipal, County, and Local Government Prevention of improper use or obstruction
Police officers' decision to temporarily close privately-owned public park for protestors' violation of park rules
was permissible time, place, and manner restriction under First Amendment; government had substantial interest in
ensuring that its public spaces were safe and clean, and temporarily clearing park on day in question, as tents and
tarps were being erected, with hundreds of protesters in attendance, was narrowly tailored means of achieving that
interest, and protesters were free to exercise their First Amendment rights in other public fora in vicinity or return to
park after it was cleaned. U.S. Const. Amend. 1.
3 Cases that cite this headnote
[3] Search, Seizure, and Arrest Particular cases
Police officers' detention of protesters for 24 to 30 hours was not excessive, as would support protesters' § 1983
excessive detention claim under Fourth Amendment; although protesters contended that there was no justification to
detain them once they were separated from their arresting officers, they failed to demonstrate that their release was
unreasonably delayed because of ill will, delay for delay's sake, or officers' attempts to gather additional evidence to
justify their arrests, rather than because of practical realities of transporting busloads of arrestees and processing their
arrests. U.S. Const. Amend. 4; 42 U.S.C.A. § 1983.
3 Cases that cite this headnote
[4] Criminal Law Wrongful act or conduct of person injured
Protesters failed to demonstrate that they were detained as result of allegedly fabricated arrest paperwork by city
police officers, rather than their arrest for disorderly conduct, thus precluding protesters' § 1983 claim for denial of
their Sixth Amendment right to fair trial based on fabricated information. U.S. Const. Amend. 6; 42 U.S.C.A. § 1983.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 40 of 97

Caravalho v. City of New York, 732 Fed.Appx. 18 (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
13 Cases that cite this headnote
*20 Appeal from the United States District Court for the Southern District of New York (Castel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of the
district court are AFFIRMED.
Attorneys and Law Firms
FOR PLAINTIFFS-APPELLANTS: GIDEON O. OLIVER, New York, New York.
FOR DEFENDANTS-APPELLEES: JOHN MOORE, Assistant Corporation Counsel (Richard Dearing, Deborah A. Brenner,
Assistant Corporation Counsels, on the brief ), for Zachary W. Carter, Corporation Counsel of the City of New York, New
York, New York.
PRESENT: RICHARD C. WESLEY, DENNY CHIN, Circuit Judges, JESSE M. FURMAN, Judge. *
*19 SUMMARY ORDER
Plaintiffs-appellants, six individuals who were arrested on March 17, 2012 after refusing to disperse from an Occupy Wall
Street protest in Zuccotti Park, appeal the district court's orders dismissing their 42 U.S.C. § 1983 claims in favor of defendants-
appellees, employees of the New York City Police Department (the “NYPD”) and the City of New York (the “City”). We assume
the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
The following facts are construed in the light most favorable to plaintiffs. Alexander Carvalho, Sergio Castillo, Daniel
Greenspan, Joseph Sharkey, Easton Smith, and Jennifer Waller were among hundreds of protesters celebrating the six-month
anniversary of the Occupy Wall Street movement in Zuccotti Park on March 17, 2012. Zuccotti Park is a privately owned
public space which is governed by park rules established and enforced by its owner and operator, Brookfield Office Properties
(“Brookfield”). On that day, two NYPD officials—Chief of Department Esposito and Deputy Inspector Winski—observed *21
protesters setting up tents and tarps, lying down, and climbing on fences and shrubs. This behavior violated posted park rules,
and a Brookfield representative announced that the park was being closed for cleaning and that people were required to leave
in order that the park be cleaned. Plaintiffs ignored the instructions.
After the decision was made to clear the park, Winski and Lieutenant Viviano made several announcements with bullhorns
ordering protesters to disperse, but not all plaintiffs heard the announcements. Plaintiffs did not leave and, except for Castillo,
locked arms and legs with other protesters to form human walls. After further warnings, the police arrested those protestors
who refused to leave, including plaintiffs, and transported them on buses to police precincts and later Central Booking. Because
plaintiffs and other arrestees were separated from their arresting officers during transport, other officers were designated as
arresting officers and completed the arrest processing paperwork. Plaintiffs were held in custody for 24 to 30 hours. They were
released without charges because their designated arresting officers could not personally attest to their criminal conduct.
On June 17, 2013, plaintiffs sued the City and certain NYPD officers for violations of their First, Fourth, Sixth, and Fourteenth
Amendment rights. The district court granted summary judgment in part for defendants pursuant to a March 31, 2016
memorandum and order, dismissing all plaintiffs’ claims at issue in this appeal. The court denied plaintiffs’ motion for
reconsideration on July 29, 2016, and—following the settlement of remaining issues unrelated to this appeal—issued orders
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 41 of 97

Caravalho v. City of New York, 732 Fed.Appx. 18 (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
closing the case on December 21, 2016 and again on March 21, 2017. 1 Plaintiffs appealed on June 16, 2017. On appeal, plaintiffs
challenge the district court's dismissal of their false arrest, First Amendment, excessive detention, and fair trial rights claims. 2
We review de novo the district court's summary judgment ruling, “construing the evidence in the light most favorable to the
non-moving party and drawing all reasonable inferences in her favor.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715
F.3d 102, 108 (2d Cir. 2013). A movant is entitled to summary judgment when “the movant shows that there is no genuine
dispute as to any material fact and the *22 movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)
). Upon review, we conclude that the district court properly granted summary judgment to defendants on plaintiffs’ claims.
I. False Arrest
A claim for false arrest under Section 1983 and New York law requires a plaintiff to demonstrate that “the defendant intentionally
confined him without his consent and without justification.” Dufort v. City of N.Y., 874 F.3d 338, 347 (2d Cir. 2017) (quoting
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) ). “The existence of probable cause to arrest constitutes justification and is a
complete defense to an action for false arrest....” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (quoting
Weyant, 101 F.3d at 852). “Probable cause exists when ‘the facts and circumstances within ... the officers’ knowledge and of
which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the
belief that an offense has been or is being committed by the person to be arrested.’ ” Kass v. City of N.Y., 864 F.3d 200, 206
(2d Cir. 2017) (quoting Marcavage v. City of N.Y., 689 F.3d 98, 109 (2d Cir. 2012) ). To determine whether probable cause
exists, “we look at the facts as the officers knew them in light of the specific elements” of the offense, Gonzalez, 728 F.3d at
155, considering the totality of the circumstances and “the perspective of a reasonable police officer in light of his training and
experience,” United States v. Delossantos, 536 F.3d 155, 159 (2d Cir. 2008).
The offense of disorderly conduct under N.Y. Penal Law § 240.20(6) consists of the following elements: “the individual (1)
congregated with other persons in a public place; (2) was given a lawful order of the police to disperse; (3) refused to comply
with that order; and (4) acted with intent to cause or recklessly created a risk of public inconvenience, annoyance or alarm.”
Kass, 864 F.3d at 211 (citing N.Y. Penal Law § 240.20(6) ). 3 Under the second element, refusal to obey an order is justified
“only where the circumstances show conclusively that the police officer's direction was purely arbitrary and was not calculated
in any way to promote the public order.” Id. at 212 (quoting People v. Todaro, 26 N.Y.2d 325, 328-29, 310 N.Y.S.2d 303, 258
N.E.2d 711 (1970) ).
[1] On this record, a reasonable jury could only conclude that the NYPD officers had probable cause to arrest plaintiffs for
disorderly conduct under N.Y. Penal Law § 240.20(6). Plaintiffs do not contest that officers made several announcements
ordering protesters to disperse, and that officers observed protesters locking their arms and legs together, sitting on the ground,
and refusing to leave. Although some plaintiffs did not hear the officers’ orders to disperse, in assessing probable cause “we
look at the facts as the officers knew them,” Gonzalez, 728 F.3d at 155, and it was objectively reasonable for the officers—who
gave multiple dispersal orders and warned protestors before arresting them—to conclude that plaintiffs refused to comply with
a lawful order to disperse in violation of N.Y. Penal Law § 240.20(6). And while plaintiffs contend that the orders to disperse
were not lawful, on these facts no reasonable jury could conclude that the orders were “purely arbitrary.” Kass, 864 F.3d at 212
(quoting *23 Todaro, 26 N.Y.2d at 329, 310 N.Y.S.2d 303, 258 N.E.2d 711).
II. First Amendment
A. Retaliation
The existence of probable cause defeats a First Amendment claim premised on the allegation that defendants arrested a plaintiff
based on a retaliatory motive. See Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012). Because we conclude that plaintiffs’
arrests were supported by probable cause, their First Amendment retaliation claims are without merit.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 42 of 97

Caravalho v. City of New York, 732 Fed.Appx. 18 (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
B. Decision to Temporarily Clear Zuccotti Park
In public fora, “the government may apply content-neutral time, place, and manner restrictions only if they are ‘narrowly tailored
to serve a significant government interest’ and if ‘ample alternative channels of communication’ are available.” Kass, 864 F.3d
at 208 (quoting Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 341 (2d Cir. 2010) (per curiam) ). A restriction is
narrowly tailored if it “promotes a substantial government interest that would be achieved less effectively absent the regulation”
and it is “not substantially broader than necessary to achieve the government's interest.” Marcavage, 689 F.3d at 106 (quoting
Ward v. Rock Against Racism, 491 U.S. 781, 799-800, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ). But a narrowly tailored
restriction need not be the “least restrictive or least intrusive means” of serving the government's interest, id. (quoting Ward,
491 U.S. at 798, 109 S.Ct. 2746), and the “requirement that ‘ample alternative channels’ exist does not imply that alternative
channels must be perfect substitutes for those channels denied to plaintiffs” by the restriction, Mastrovincenzo v. City of N.Y.,
435 F.3d 78, 101 (2d Cir. 2006).
[2] Assuming, without deciding, that the First Amendment applies to Zuccotti Park, we conclude as a matter of law that
defendants’ decision to temporarily close Zuccotti Park for park rules violations was a constitutional time, place, and manner
restriction. The government has a substantial interest in ensuring that its public spaces are safe and clean, see Marcavage, 689
F.3d at 104, and temporarily clearing the park on the day in question—as tents and traps were being erected, with hundreds of
protesters in attendance—was a narrowly tailored means of achieving that interest. 4 Although the officers could conceivably
have closed portions of the park instead, the First Amendment does not require the “least restrictive or least intrusive means.”
Id. at 106 (quoting Ward, 491 U.S. at 798, 109 S.Ct. 2746). Moreover, plaintiffs remained free to exercise their First Amendment
rights in other public fora in the vicinity or to return to Zuccotti Park after it was cleaned.
III. Excessive Detention
A claim for excessive detention is governed by the Fourth Amendment, which “requires a prompt judicial determination of
probable cause as a prerequisite to an extended pretrial detention” following a warrantless arrest. Bryant v. City of N.Y., 404
F.3d 128, 136 (2d Cir. 2005). Under the Supreme Court's precedent, “judicial determinations of probable cause within 48
hours of arrest will, as a general matter, comply with the promptness requirement....” Id. at 137 (quoting Cty. of Riverside v.
McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) ). An arrestee can rebut the presumption of constitutionality
by showing that the probable *24 cause determination was “delayed unreasonably,” such as “for the purpose of gathering
additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake.”
McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661.
[3] We conclude that no reasonable jury could find that the detention of plaintiffs for 24 to 30 hours, in the circumstances
here, was excessive. Their detention of less than 48 hours was presumptively reasonable. See Bryant, 404 F.3d at 137. Although
plaintiffs contend that there was no justification to detain them once they were separated from their arresting officers, plaintiffs
have not put forth any evidence to show that their release was unreasonably delayed because of “ill will,” “delay for delay's
sake,” or officers’ attempts to gather additional evidence to justify their arrests, rather than because of the “practical realities”
of transporting busloads of arrestees and processing their arrests. McLaughlin, 500 U.S. at 56-57, 111 S.Ct. 1661. Nor are we
persuaded by plaintiffs’ reliance on New York law, because “the Fourth Amendment does not incorporate state procedural
criminal law.” United States v. Bernacet, 724 F.3d 269, 277 (2d Cir. 2013) (emphasis omitted).
IV. Fair Trial Rights
To prevail on a claim for denial of the constitutional right to a fair trial based on fabricated information, a plaintiff must
demonstrate that “(1) [an] investigating official (2) fabricates information (3) that is likely to influence a jury's verdict, (4)
forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of life, liberty, or property as a result.”
Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016).
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 43 of 97

Caravalho v. City of New York, 732 Fed.Appx. 18 (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 6
[4] Assuming, without deciding, that a plaintiff who was never charged with an offense can state a claim for the denial
of his or her constitutional right to a fair trial, we reject plaintiffs’ claims on the merits. Plaintiffs failed to adduce any
evidence demonstrating that they were detained as a result of the allegedly fabricated arrest paperwork, rather than their
arrest for disorderly conduct. See Ganek v. Leibowitz, 874 F.3d 73, 91 (2d Cir. 2017) (plaintiff cannot state a claim for a
liberty deprivation attributable to an arrest supported by probable cause, unless “the fabricated evidence causes some ’further
deprivation’ ” (quoting Garnett, 838 F.3d at 277) ).
We have considered plaintiffs’ remaining arguments and find them to be without merit. Accordingly, we AFFIRM the orders
of the district court.
All Citations
732 Fed.Appx. 18
Footnotes
* Jesse M. Furman, of the United States District Court for the Southern District of New York, sitting by designation.
1 After the only surviving claims, those of plaintiff Austin Guest, were settled, the district court entered the two orders
—on December 21, 2016 and on March 21, 2017. Both apparently resolved only Guest's claims and purported to close
the case. The March 21, 2017 order was entered because Guest and defendants had not in fact finalized the settlement
after the December 21, 2016 order.
When it closed the case, however, the district court did not enter a separate judgment implementing its summary judgment
decision, as required by Federal Rule of Civil Procedure 58(a). See Fed. R. Civ. P. 58(a) (“[e]very judgment and amended
judgment must be set out in a separate document,” subject to certain exceptions inapplicable in this case). But plaintiffs
could not have appealed in any event until all the claims, including Guest's, were resolved. See Fed. R. Civ. P. 54(b).
Therefore, we deem plaintiffs’ time to appeal to run from 30 days after the district court's March 21, 2017 order was
deemed “entered,” which was 150 days after entry in the civil docket on March 21, 2017. See Fed. R. App. P. 4(a)(7)(A)
(ii) (for purposes of Rule 4(a), a judgment or order is “entered” when “the judgment or order is set forth on a separate
document, or 150 days have run from entry of the judgment or order in the civil docket,” whichever comes first). The
June 16, 2017 notice of appeal was filed within 180 days of the March 21, 2017 order. Hence, the appeal is timely.
2 Plaintiffs do not challenge the district court's dismissal of their excessive force, equal protection, due process, state law,
and municipal liability claims.
3 The relevant text of the statute reads: “A person is guilty of disorderly conduct when, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof: ... He congregates with other persons in a public
place and refuses to comply with a lawful order of the police to disperse....” N.Y. Penal Law § 240.20(6).
4 Zuccotti Park encompasses about one rectangular block of open space, bounded by Broadway, Cedar Street, Church
Street, and Liberty Street.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 44 of 97

Christian v. Kelly, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Extend by McNeill v. Jordan, E.D.N.Y., February 17, 2017
2016 WL 3162056
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Bryan CHRISTIAN, Plaintiff,
v.
Kevin KELLY, in His individual and official capacities, Defendants.
14-CV-07416 (PKC)(SMG)
|
Signed 06/03/2016
Attorneys and Law Firms
Bryan Christian, Comstock, NY, pro se.
Katherine Abigail Byrns, New York City Law Department, New York, NY, for Defendants.
ORDER GRANTING MOTION TO DISMISS
*1 PAMELA K. CHEN, United States District Judge
Pro se Plaintiff Bryan Christian brings this excessive force claim under 42 U.S.C. § 1983 (“Section 1983”), alleging that he
sustained injuries as a result of being handcuffed during an arrest by Defendant Kevin Kelly, a New York City Police Department
Officer. Defendant moved to dismiss Plaintiff's Complaint. (Dkts. 27, 29.) Plaintiff did not file an opposition, despite receiving
two extensions of time to do so. For the following reasons, Defendant's motion is GRANTED.
BACKGROUND 1
On August 6, 2014, Plaintiff was chased by a group of men after being pointed out as an accomplice to a robbery. (Dkt. 1
(“Compl.”) ¶¶ 3-4.) When the men caught up to Plaintiff, they “[c]hoked, punched, kicked” Plaintiff and pinned him to the
ground while the police were being called. (Id. ¶¶ 5-7.) Plaintiff alleges that when Officer Kelly arrived on the scene, he
“snatched [Plaintiff's] left arm while [Plaintiff] was still on the ground,” and “squeezed a bracelet to a set of handcuffs all the
way tight on [his] left wrist until it could be closed no more, pulled this same arm up while twisting it in a counter clock direction
and forced it behind [his] back where this officer then handcuffed [his] right wrist.” (Id. ¶ 8.) Plaintiff alleges that he suffered
“excruciating pain from [his] left wrist” when Defendant then lifted him off the ground by his left arm. (Id. ¶ 9.) While this was
happening, Plaintiff yelled: “This cuff is [too] tight. You're breaking my arm. Can you please loosen the handcuff?” (Id. ¶ 9.)
After being taken to the 79th Precinct, Plaintiff complained of experiencing pain around his left wrist, behind his left ear “where
[he] suffered a blow from one of the men in the group that gave chase,” and his right ankle. (Id. ¶ 11.) Plaintiff was taken to
Woodhull Hospital two days later, on August 8, 2014. (Id. ¶ 14.) At the hospital, he again complained about a lump or bruise
behind his left ear, as well as swelling on his right ankle, left wrist, and right thumb. (Id. ¶ 15.) Plaintiff alleges that x-rays were
taken of his right thumb and right ankle (though not his left wrist or the bruise behind his left ear), and that he was prescribed
pain medication; a doctor or staff member also wrapped his right ankle in a bandage. (Id. ¶¶ 16-17.) When Plaintiff inquired as
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 45 of 97

Christian v. Kelly, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
to the bruise behind his left ear and the pain from his left wrist, a female staff member whom Plaintiff believed to be a doctor
told him to take the pain medication. (Id. ¶ 18.) Three weeks later, at Riker's Island, a doctor saw Plaintiff again and gave him
a cane to assist him. (Id. ¶ 20.) The doctor also ordered x-rays “for the areas where [he] was still experiencing pain,” though
Plaintiff does not specify where. (Id.) Plaintiff alleges that as of the date on the face of the Complaint, October 11, 2014, he
was still taking pain medication and awaiting these x-ray results. (Id. ¶ 21.)
DISCUSSION
*2 The only claim that remains in this case is Plaintiff's Section 1983 claim of excessive force against Officer Kelly based
on his handcuffing of Plaintiff. 2
Courts in the Second Circuit apply a specific standard to claims of excessive force based on a law enforcement officer's use of
handcuffs. See, e.g., Hanniford v. City of New York, No. 12-cv-0040, 2015 WL 588766, at *2 (E.D.N.Y. Feb. 11, 2015); Sachs
v. Cantwell, No. 10-cv-1663, 2012 WL 3822220, at *14 (S.D.N.Y. Sept. 4, 2012). This standard reflects the need to balance
the “right to use some degree of coercion,” including the use of tight handcuffs “to prevent the arrestee's hands from slipping
out,” Esmont v. City of New York, 371 F. Supp. 2d 202, 214 (E.D.N.Y. 2005) (citation omitted), with the use of “overly tight
handcuffing” that could constitute excessive force, Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468
(S.D.N.Y. 2008) (citations omitted). When considering whether handcuffing constitutes excessive force, a court “is to consider
evidence that: 1) the handcuffs were unreasonably tight; 2) the defendants ignored the arrestee's pleas that the handcuffs were
too tight; and 3) the degree of injury to the wrists.” Dunkelberger v. Dunkelberger, No. 14-cv-3877, 2015 WL 5730605, at *14
(S.D.N.Y. Sept. 30, 2015) (citing Usavage v. Port Auth. of New York & New Jersey, 932 F. Supp. 2d 575, 592 (S.D.N.Y. 2013)).
Additionally, there is a “consensus among courts in [the Second Circuit] that tight handcuffing does not constitute excessive
force unless it causes some injury beyond temporary discomfort.” Harris v. Nassau Cty., No. 13-cv-4728, 2016 WL 3023265,
at *10 (E.D.N.Y. May 24, 2016) (citation omitted). “These injuries need not be severe or permanent, but must be more than
merely de minimis.” Selvaggio v. Patterson, 93 F. Supp. 3d 54, 74 (E.D.N.Y. 2015) (quoting Usavage, 932 F. Supp. 2d at 592)
(internal quotation marks omitted).
*3 Here, although Plaintiff alleges that he complained to Defendant that the handcuffs were too tight and were hurting him,
and that Defendant did not loosen them, (Compl. ¶ 9), Plaintiff's allegations of injury are insufficient to state a claim. While
Plaintiff alleges that he experienced “excruciating” pain around his left wrist at the time of the handcuffing, (id. ¶ 9), Plaintiff
references only generalized pain on his left wrist following the arrest and “swelling” in that same area when he was admitted to
Woodhull Hospital two days later (id. ¶ 11). These minor injuries are routinely rejected by courts in this Circuit as insufficient to
support a claim of excessive force. See, e.g., Gonzalez v. Bronx Cty. Hall of Justice Court Officer Mark Hirschman Shield 7421,
No. 15-cv-810, 2016 WL 354913, at *4 (S.D.N.Y. Jan. 28, 2016) (“bruising and abrasions” from tight handcuffs “are precisely
the type of minor injuries routinely held by courts in [the Second Circuit] to be insufficient to state a claim of excessive force”);
Hilderbrandt v. City of New York, No. 13-cv-1955, 2014 WL 4536736, at *8 (E.D.N.Y. Sept. 11, 2014) (dismissing excessive
force claim where a plaintiff claimed that excessively tight handcuffs caused “soreness to his wrists and bruises to his thumbs
that lasted ‘a couple days’ ”); Guerrero v. City of New York, No. 12-cv-2916, 2013 WL 5913372, at *6 (S.D.N.Y. Nov. 4, 2013)
(allegations that tight handcuffs caused “swelling and contusions” failed to state a claim of excessive force); Lozada v. City of
New York, No. 12-cv-38, 2013 WL 3934998, at *5 (E.D.N.Y. July 29, 2013) (granting motion to dismiss excessive force claim
because the plaintiff's “vague reference to ‘injuries’ ” and a “complaint of a swelled wrist [were] insufficient”); Reary v. Beneri,
No. 09-cv-4444, 2011 WL 5546237, at *4, n.4 (E.D.N.Y. Nov. 9, 2011) (allegations that tight handcuffs caused “heavy swelling
in both wrists” insufficient to state a claim of excessive force).
Accordingly, this Court dismisses Plaintiff's claim of excessive force in connection with his August 6, 2014 arrest for failure
to state a claim.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 46 of 97

Christian v. Kelly, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
CONCLUSION
For all of the foregoing reasons, the Court dismisses Plaintiff's claim of excessive force without prejudice. The Clerk of Court
is respectfully directed to enter judgment accordingly.
SO ORDERED:
All Citations
Not Reported in Fed. Supp., 2016 WL 3162056
Footnotes
1 The facts in this section are drawn from the allegations contained in the Complaint, and are deemed to be true for
purposes of this motion. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (a district court must accept the factual
allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff).
2 Plaintiff initially brought this action against the 79th Precinct of the New York Police Department, two Doe doctors, and
Woodhull Hospital in addition to a John Doe police officer. (See Dkt. 1.) Plaintiff's claims against these other defendants
were dismissed for failure to state a claim. (See 6/9/15 Order.) On July 22, 2015, the Corporation Counsel of the City of
New York identified the Doe officer as Kevin Kelly. (Dkt. 12.) To the extent that Plaintiff's Complaint may be liberally
construed to be alleging a false arrest claim in light of Plaintiff's references to his purported innocence, the Court finds
that such claim is barred because Plaintiff's guilty plea in State criminal court establishes probable cause as a matter of
law. See Criminal Court Transcript, Byrns Decl. Ex. D (Dkt. 28-4) (transcript of guilty plea); Othman v. City of New
York, No. 13-cv-4771, 2015 WL 1915754, at *3 (E.D.N.Y. Apr. 27, 2015) (district court may take judicial notice of
matters of public record in deciding a motion to dismiss, such as the disposition of a State criminal court proceeding);
Routier v. O'Hara, 2013 WL 3777100, at *5 (E.D.N.Y. July 17, 2013) (“Probable cause for the arrest is conclusively
established where there is a valid prosecution resulting in a conviction, including where the individual is convicted upon
a guilty plea.”).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 47 of 97

Dayter v. Caputo, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 3037504
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Nicholas DAYTER, Plaintiff,
v.
David CAPUTO, et al., Defendants.
6:19-cv-0477 (TJM/TWD)
|
Signed 06/03/2019
|
Filed 06/04/2019
Attorneys and Law Firms
NICHOLAS DAYTER, Plaintiff, pro se, 18-A-3400, Collins Correctional Facility, P.O. Box 340, Collins, NY 13440.
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
*1 The Clerk has sent to the Court for review a complaint filed by pro se Plaintiff Nicholas Dayter asserting claims under 42
U.S.C. § 1983 arising out of his December 4, 2017, arrest and subsequent prosecution. (Dkt. No. 1.) Plaintiff, who is presently
confined at Collins Correctional Facility, has not paid the required filing fee and seeks leave to proceed in forma pauperis
(“IFP Application”). (Dkt. Nos. 2, 4.) Named as Defendants are David Caputo, Police Officer; Craig Sleurs, Police Officer;
J.E. Cross, Detective; the Bethlehem Police Department; and Judge Ryan Donovan, Criminal Court Judge, Bethlehem City
Court. (Dkt. No. 1.)
I. IFP APPLICATION
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee
that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).
“Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the
fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing § 1915(b) and Harris
v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Upon review of Plaintiff's IFP Application (Dkt. No. 2), the Court finds Plaintiff has demonstrated sufficient economic need to
proceed in forma pauperis. Plaintiff has also filed the inmate authorization form required in this District. (Dkt. No. 3.) Therefore,
Plaintiff's IFP Application is granted. 1 (Dkt. No. 2.)
II. LEGAL STANDARDS FOR INITIAL REVIEW
Having found Plaintiff meets the financial criteria for commencing this action in forma pauperis, and because he seeks relief
from a governmental entity or an officer or employee of a governmental entity, the sufficiency of the allegations set forth in his
complaint must be considered in light of 28 U.S.C. §§ 1915(e) and 1915A.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 48 of 97

Dayter v. Caputo, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
Section 1915(e) directs that when a plaintiff proceeds in forma pauperis, “the court shall dismiss the case at any time if the
court determines that ... the action ... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Similarly, § 1915A directs that a court must review any “complaint in a civil action in which a prisoner seeks redress from
a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint ... is frivolous, malicious, or fails to state a claim upon which relief
can be granted; or ... seeks monetary relief against a person who is immune from such relief.” 28 U.S.C. § 1915A(b).
*2 In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). “An action is frivolous when either: (1) the factual
contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an
indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and
quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d
37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to
proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power
to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules
of pleading, “does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant-harmed-me
accusation.” Id.
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts
alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d
133, 136 (2d Cir. 1994) (citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
Additionally, when reviewing a complaint, courts are guided by the pleading requirements of the Federal Rules of Civil
Procedure. Under Rule 8, a pleading shall contain, inter alia, “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of this rule “is to give fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether
the doctrine of res judicata is applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (emphasis and
citation omitted). Under Rule 10, “[a] party must state its claims or defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). The purpose of this rule is to facilitate a cogent framing
of the issues presented and permit defendants to properly respond to the allegations of a complaint. Laspisa v. Citifinancial
Does 1 to 20, 269 F. Supp. 3d 11, 13 (N.D.N.Y. 2017); Dabney v. Sawyer, No. 11-CV-0273 (LEK/RFT), 2012 WL 3241571,
at *1 (N.D.N.Y. July 17, 2012). 2
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they
suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should
not be dismissed “without giving leave to amend at least once when a liberal reading of the complaint gives any indication that
a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and quotation marks
omitted). An opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such
that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 49 of 97

Dayter v. Caputo, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
III. COMPLAINT
*3 On December 4, 2017, at approximately 8:00 a.m., Police Officers Caputo and Sleurs responded to Plaintiff's 911 call “that
[he] was a victim of” and, when they arrived, placed him under arrest and took photographs. (Dkt. No. 1 at 4. 3 ) Plaintiff claims
he was brought to the police station where he was assaulted, falsely arrested, and detained. Id. Caputo and Sleurs “punched
and kicked” Plaintiff “all over” his body and “beat” him up for fifteen minutes straight. Id. As a result, Plaintiff suffered from
bruising and swelling. Id.
Plaintiff claims Detective Cross “tampered with evidence and got rid of evidence and did a[n] illegal search and seizure of [his]
property.” Id. Cross also “planted fake evidence to prosecute [Plaintiff], which [he is] now serving a 2 to 4 years in prison.” Id. 4
Plaintiff claims Judge Donovan “falsely detained [him] with bogus charges, and convicted and falsely charged and confined me,
while officer Caputo and officer Sleurs violates several of [his] rights.” Id. Plaintiff avers he can prove “it all” with “evidence”
in his “discovery.” Id.
Based on the foregoing, Plaintiff asserts claims against Defendants Caputo and Sleurs for excessive force, assault, failure to
protect, violation of due process, false arrest, false imprisonment, slander, and defamation of character. Id. at 6. Plaintiff brings
claims against Defendant Cross for tampering with evidence, illegal search and seizure, false arrest, false imprisonment, slander,
defamation of character, and filing a false report. Id. Plaintiff asserts claims against Judge Donovan for false imprisonment,
slander, and defamation of character. Id. Plaintiff seeks unspecified monetary damages. Id. For a complete statement, reference
is made to the complaint. 5
IV. ANALYSIS
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of action for “the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S.
498, 508 (1990). “Section 1983 itself creates no substantive rights, [but] ... only a procedure for redress for the deprivation of
rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).
To state a viable claim under Section 1983, a plaintiff must allege that the defendant, while acting under color of state law,
deprived him of a right, privilege or immunity secured by the Constitution or by the laws of the United States. See 42 U.S.C. §
1983. Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under
Section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.
1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)).
A. Claims Against Defendant Judge Donovan
*4 It is well-settled judges are absolutely immune from suit for damages for judicial acts performed in their judicial capacities.
Mireles v. Waco, 502 U.S. 9, 11 (1991). Generally, “acts arising out of, or related to, individual cases before the judge are
considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). Absolute immunity protects judges for their
judicial acts, even when such acts “are alleged to have been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349,
356 (1978). This is because “[w]ithout insulation from liability, judges would be subject to harassment and intimidation[.]”
Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994). This is true however erroneous an act may have been and however injurious
its consequences were to the plaintiff. Id.
Here, Plaintiff claims Judge Donovan 6 “falsely detained” him on “bogus charges, and convicted and falsely charged and
confined me.” Id. Plaintiff's allegations against Judge Donovan clearly relate to actions that are judicial in nature and, therefore,
he is entitled to judicial immunity. Consequently, the Court recommends that all claims against Judge Donovan be dismissed
with prejudice.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 50 of 97

Dayter v. Caputo, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
B. Claims Against Defendant Bethlehem Police Department
It is unclear from the complaint what, if any, claims are alleged against the Bethlehem Police Department. Plaintiff identifies
the Bethlehem Police Department as a Defendant in the caption of his complaint, yet makes no factual allegations against this
Defendant in the body of the complaint. 7 (Dkt. No. 1 at 1.) However, “[a] police department cannot sue or be sued because it
does not exist separate and apart from the municipality and does not have its own legal identity.” Baker v. Willett, 42 F. Supp.
2d 192, 198 (N.D.N.Y. 1999) (dismissing claims against county sheriff's department) (citations omitted); see also Jackson v.
Cty. of Nassau, 07-CV-245, 2010 WL 335581, at *5 (E.D.N.Y. Jan. 22, 2010) (“Under New York law, departments which
are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and
cannot sue or be sued.”); see, e.g., La Grande v. Town of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH), 2009 WL
2868231, at *2 (N.D.N.Y. Sept. 1, 2009) (“Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. §
1983, [the plaintiff's] [c]omplaint is dismissed as against the Town of Bethlehem Police Department.”); Jenkins v. Liadka, No.
5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *5 (N.D.N.Y. Sept. 13, 2012) (“Because the Syracuse Police Department is
merely an administrative arm of the City of Syracuse, it is not a proper defendant.”).
Therefore, the Court recommends dismissing all claims against the Bethlehem Police Department with prejudice. However,
in deference to Plaintiff's pro se status, the Court recommends that Plaintiff be provided with an opportunity to amend his
complaint to clarify claims, if any, he intended to allege against the Town of Bethlehem. 8
C. Claims Against Defendants Caputo and Sleurs
*5 While Plaintiff's complaint is not a model of clarity, construed liberally, Plaintiff asserts claims against Defendants Caputo
and Sleurs for excessive force, failure to protect, assault, violation of due process, false arrest, false imprisonment, slander, and
defamation of character. Id. at 6.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court of the United States created a jurisdictional prerequisite to civil
suits brought under 42 U.S.C. § 1983:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such a determination, or called
into question by a federal court's issuance of a writ of habeas corpus. A claim for damages bearing that
relationship to a conviction or sentence that has not been so invalidated is not cognizant under § 1983.
512 U.S. at 486-87 (emphasis in original); see also Peterson v. Todd, No. 5:12-CV-1371 (MAD/DEP), 2013 WL 2487253, at
*4 (N.D.N.Y. June 7, 2013) (“A claim for damages relating to a conviction that has not been so invalidated is not cognizable
under Section 1983.”) (citation and quotation marks omitted).
Thus, under Heck and its progeny, a Ҥ 1983 action is barred (absent prior invalidation) no matter the relief sought (damages
or equitable relief) ... if success in that action would necessarily demonstrate the invalidity of confinement or its duration.”
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original). If a plaintiff whose success would necessarily
demonstrate the invalidity of the confinement or its duration does not satisfy Heck's “favorable termination rule,” he must seek
relief through the federal habeas corpus statute rather than through § 1983. Peralta v. Vasquez, 467 F.3d 98, 104 (2d Cir. 2006)
(“[T]he purpose of the Heck favorable termination requirement is to prevent prisoners from using § 1983 to vitiate collaterally
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 51 of 97

Dayter v. Caputo, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
a judicial or administrative decision that affected the overall length of confinement, and that punishments related to their term
of imprisonment, or the procedures that led to them ... must be attacked through a habeas petition.”).
Heck, however, does not require dismissal of any claim whose adjudication in favor of the plaintiff would not necessarily
invalidate his conviction or sentence. See Jackson v. Suffolk Cty. Homicide Bureau, 135 F.3d 254, 256-57 (2d Cir. 1998)
(reversing dismissal of excessive force claim pursuant to Heck because a finding that excessive force had in fact been used
would not necessarily require the invalidation of the conviction); see, e.g., Delaney v. City of Albany, No. 1:18-CV-1193 (DNH/
CFH), 2019 WL 1486836, at *4 (N.D.N.Y. Apr. 4, 2019) (finding the plaintiff's assertion that he was subjected to excessive
force during the arrest was not barred by Heck as it “would not implicate his judgments of conviction”); report recommendation
adopted by 2019 WL 1922286 (N.D.N.Y. Apr. 30, 2019).
1. False Arrest, False Imprisonment, Defamation, Slander, and Violation of Due Process
Here, as currently pled, Plaintiff's claims against Defendants Caputo and Sleurs sounding in false arrest, false imprisonment,
defamation, slander, and violation of due process strike at the heart of the apparent conviction Plaintiff received as a result of
the events in question. Were Plaintiff to succeed on any of theory espoused above, he would necessarily call into question the
validity of his underlying conviction and sentence. As such, all of these claims are barred because he has failed to show that a
conviction or sentence has been overturned. See Duamutef v. Morris, 956 F. Supp. 1112, 1115-18 (S.D.N.Y. 1997) (dismissing
§ 1983 claims of malicious prosecution, false arrest, perjury, retaliation, and civil rights conspiracy under Heck where the
plaintiff's underlying conviction had not been overturned); Rivera v. City of Yonkers, 470 F. Supp. 2d 402, 408 (S.D.N.Y. 2007)
(dismissing plaintiff's false arrest, false imprisonment, and malicious prosecution claims as barred under Heck); Delaney v. City
of Albany, 2019 WL 1486836, at *4 (dismissing the plaintiff's false imprisonment, false arrest, and defamation claims without
prejudice as barred by Heck); Dorsey v. Regan, No. 6:14-CV-23 (TJM/CFH), 2014 WL 1338415, at *1 (N.D.N.Y. Apr. 2,
2014) (dismissing claims for false arrest and false imprisonment without prejudice as barred by Heck); Lane v. Papadimitrious,
No. 6:10-CV-647 (NAM/ATB), 2010 WL 2803468, at *1 (N.D.N.Y. July 14, 2010) (finding plaintiff's “claims in the nature
of perjury, slander, evidence tampering, conspiracy to bring unfounded criminal charges against him, and false imprisonment
necessarily implicate the validity of his conviction and thus are barred under Heck until such time as the conviction may be
vacated or otherwise invalidated.”).
*6 Accordingly, the Court recommends that Plaintiff's claims against Defendants Caputo and Sleurs for false arrest, false
imprisonment, defamation, slander, and violation of due process be dismissed without prejudice as barred by Heck.
2. Excessive Force and Failure to Protect
“[C]laims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop,
or other ‘seizure’ of a free citizen [are] analyzed under the Fourth Amendment and its ‘reasonableness’ standard[.]” Graham v.
Connor, 490 U.S. 386, 395 (1989). The standard governing excessive force is “whether the officers' actions [were] ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id.
at 397 (citations omitted). “[T]he Second Circuit has held that even minor injuries, including scrapes and bruises, can support
an excessive-force claim.” Matthews v. City of New York, 889 F. Supp. 2d 418, 442 (E.D.N.Y. 2012).
Additionally, liability under § 1983 may attach to a police officer for failing to intervene in or prevent an instance of excessive
force if “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's
position would know that the victim's constitutional rights were being violated; and (3) the officer does not take reasonable
steps to intervene.” Jean–Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y. 2008) (citations omitted); see also Anderson
v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (“It is widely recognized that all law enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.”).
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 52 of 97

Dayter v. Caputo, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 6
Here, Plaintiff claims he was brought to the police station where Defendants Caputo and Sleurs “punched and kicked” him “all
over” his body and “beat” him up for fifteen minutes straight. Id. As a result, Plaintiff suffered from bruising and swelling. Id.
Thus, at this early stage in the litigation, Plaintiff has adequately “pleaded 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 (citation omitted).
Therefore, the Court recommends that Plaintiff's excessive force and failure to protect claims against Defendants Caputo and
Sleurs be found to survive initial review and require a response. In so recommending, no opinion is expressed as to whether
these claims can withstand a properly filed dispositive motion judgment.
3. Assault
Plaintiff claims Defendants Caputo and Sleurs assaulted him. (Dkt. No. 1 at 6.) To the extent that Plaintiff asserts this claim
under 42 U.S.C. § 1983, it is duplicative of his excessive force claim and must be dismissed for failure to state a claim upon
which relief may be granted. See Raymond v. Bunch, 136 F. Supp. 2d 71, 81 (N.D.N.Y. 2001). To the extent this claim is asserted
under New York law, claims for intentional torts are governed by a one-year statute of limitations. N.Y. C.P.L.R. § 215(3); see
also Ashjari v. Nynex Corp., 182 F.3d 898 (2d Cir. 1999) (“Under N.Y. C.P.L.R. § 215(3), claims of assault and battery ... must
be brought within one year from the date the claim accrued.”). Although the statute of limitations is an affirmative defense,
where it is clear from the face of the complaint that a claim is barred by the applicable statute of limitations, the claim is subject
to dismissal for failure to state a claim on 28 U.S.C. § 1915(e)(2)(B) review. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995)
(holding that a complaint can be dismissed on initial review based on a defense that appears on the face of the complaint).
However, a district court typically should not dismiss a claim as time-barred without providing a pro se plaintiff with “notice
and opportunity to be heard” as to whether there might be a meritorious tolling argument or other reason why the complaint
might be considered. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007).
*7 Therefore, the Court recommends dismissing Plaintiff's assault claims against Defendants Caputo and Sleurs with leave to
amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1).
D. Claims Against Defendant Cross
Construed liberally, Plaintiff asserts claims against Defendant Cross for false arrest, false imprisonment, illegal search and
seizure, malicious prosecution, slander, and defamation. (Dkt. No. 1 at 4, 6.) Id.
1. False Arrest, False Imprisonment, Malicious Prosecution, Slander, Defamation, Violation of Due Process
For the same reasons discussed above, the Court finds Plaintiff's claims against Defendant Cross for false arrest, false
imprisonment, malicious prosecution, slander, and defamation are barred by Heck. See Morris, 956 F. Supp. at 1115-18
(dismissing § 1983 claims of malicious prosecution, false arrest, perjury, retaliation, and civil rights conspiracy under Heck
where the plaintiff's underlying conviction had not been overturned). Consequently, the Court recommends that Plaintiff's claims
against Defendant Cross for false arrest, false imprisonment, malicious prosecution, slander, and defamation be dismissed
without prejudice as barred by Heck.
2. Illegal Search and Seizure
“A ‘search’ in the context of the Fourth Amendment occurs when the police intrude upon a person's reasonable expectation of
privacy or if the police otherwise trespass upon one's person, house, papers, or effects for the purpose of acquiring information.”
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 53 of 97

Dayter v. Caputo, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 7
Jennings v. Decker, 359 F. Supp. 3d 196, 207-08 (N.D.N.Y. 2019) (citations omitted). “In narrow circumstances, a suit for
damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was
introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction” as long as the suit “would not
necessarily imply that the plaintiff's conviction was unlawful.” Corely v. Vance, No. 15 Civ. 1800 (KPF), 2015 WL 4164377,
at *4 (S.D.N.Y. June 22, 2015) (citing Heck, 512 U.S. at 487 n. 7).
To determine if a § 1983 claim alleging an unlawful search would necessarily imply the invalidity of his conviction, the Court
must “ascertain whether plaintiff could have been convicted even if the ... evidence [from the allegedly illegal search were]
suppressed[.]” Id. (citations omitted). Because Plaintiff's allegation that Defendant Cross conducted an “illegal search and
seizure” is conclusory and unsupported by any factual enhancement, the Court finds this claim fails to state a claim upon which
relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1). Additionally, as currently pled, the Court is unable to
discern whether Heck also bars this claim.
Therefore, the Court recommends that Plaintiff's illegal search and seizure claim against Defendant Cross be dismissed without
prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1).
WHEREFORE, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED; 9 and it is further
*8 RECOMMENDED that the Clerk be directed to provide the Superintendent of the facility that Plaintiff has designated as
his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. 3), and notify that official that Plaintiff has
filed this action and is required to pay to the Northern District of New York the entire statutory filing fee of $350 in installments,
over time, pursuant to 28 U.S.C. § 1915; and it is further
RECOMMENDED that Plaintiff's claims against Defendant Judge Donovan be dismissed with prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(iii) and 1915A(b)(2); and it is further
RECOMMENDED that Plaintiff's claims against Defendant Bethlehem Police Department be dismissed with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1); and it is further
RECOMMENDED that Plaintiff be provided with an opportunity to amend his complaint to clarify claims, if any, he intended
to allege against the Town of Bethlehem; and it is further
RECOMMENDED that Plaintiff's excessive force and failure to protect claims against Defendants Caputo and Sleurs survive
initial review and require a response; and it is further
RECOMMENDED that Plaintiff's assault claims against Defendants Caputo and Sleurs be dismissed without prejudice and
with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1); and it is further
RECOMMENDED that Plaintiff's illegal search and seizure claim against Defendant Cross be dismissed without prejudice
and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1); and it is further
RECOMMENDED that Plaintiff's remaining claims for false arrest, false imprisonment, malicious prosecution, defamation,
slander, and violation of due process be dismissed without prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994);
and it is further
RECOMMENDED that in the event the District Court allows Plaintiff to file an amended complaint, he be instructed that
any amended complaint be a complete pleading that supersedes his original complaint in all respects (and does not incorporate
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 54 of 97

Dayter v. Caputo, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 8
by reference any portion of his original complaint); and that he not attempt to reassert any claim that has been dismissed with
prejudice and/or without leave to amend by the District Court. The Court further recommends that Plaintiff be directed to comply
in all respects with Rules 8(a) and 10(b) of the Federal Rules of Civil Procedure, which require, inter alia, that the amended
complaint contain a short and plain statement of each claim showing that Plaintiff is entitled to relief, and that he state his claims
in numbered paragraphs, each limited as far as practical to a single set of circumstances; and it is hereby
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with copies of the
unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir.
2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing
report. 10 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 87 (2d Cir. 1993) (citing
Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P.
72, 6(a).
All Citations
Not Reported in Fed. Supp., 2019 WL 3037504
Footnotes
1 The total cost for filing a civil action in this Court is $400.00, consisting of the civil filing fee of $350.00, 28 U.S.C. §
1914(a), and an administrative fee of $50.00. Although an inmate who is granted in forma pauperis status is not required
to pay the $50.00 administrative fee, he is required to pay, over time, the full amount of the $350.00 filing fee regardless
of the outcome of the action. 28 U.S.C. § 1915(b)(3).
2 The Court will provide Plaintiff with copies of unpublished decisions in accordance with the Second Circuit's decision
in Lebron v. Sanders, 557 F.3d 76, 76 (2d Cir. 2009) (per curium).
3 Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing
system maintained by the Clerk's Office.
4 According to the publicly available website maintained by the New York State Department of Corrections
and Community Supervision, Plaintiff was received into custody on September 6, 2018, and he is serving an
indeterminate sentence of two to four years for criminal contempt in the first degree, a Class E felony. See http://
nysdoccslookup.doccs.ny.gov (DIN 18A3400) (last visited June 3, 2019).
5 Plaintiff further claims that while he was a pretrial detainee at Albany County Correctional Facility based on the “bogus”
charges, Assistant District Attorney Ariel R. Fallon contacted the facility and “ordered” a sergeant and two officers to
assault Plaintiff. (Dkt. No. 1 at 5.) The Court takes judicial notice that these allegations are part of separate lawsuit filed
in this District on March 5, 2019, entitled Nicholas Dayter v. Ariel Fallo, et al., No. 9:19-cv-0301 (LEK/ATB).
6 The Court takes judicial notice that the Honorable Ryan T. Donovan, Town Justice, has presided over the criminal,
small claims, and traffic matters in the Town of Bethlehem since 2006. See https://www.townofbethlehem.org/744/
TownJustice-RyanDonovan (last visited June 3, 2019).
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 55 of 97

Dayter v. Caputo, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 9
7 See also Ho Myung Moolsan Co., Ltd. v. Manitou Mineral Water, Inc., 665 F. Supp. 2d 239, 251 (S.D.N.Y. 2009) (“When
a complaint names defendants in the caption but makes no substantive allegations against them in the body of the
pleading, the complaint does not state a claim against these defendants.”).
8 The Second Circuit has directed district courts to grant leave to pro se litigants to amend their complaints to name the
municipality in which a police department sits as the real party in interest when a case is dismissed against a police
department on the grounds that it is not an entity capable of being sued. See Morris v. New York City Police Dep't, 59 F.
App'x 421, 422-23 (2d Cir. 2003) (summary order) (directing the district court to permit amendment of the complaint to
name the City of New York as a defendant when the suit was dismissed against the New York City Police Department
on the grounds it was not a suable entity).
9 Plaintiff is advised that although the application to proceed in forma pauperis has been granted, he will still be required
to pay any fees he incurs in this action, including copying fees and witness fees.
10 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days
will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-
Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed
period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is
not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 56 of 97

Gonzalez v. Bronx County Hall of Justice Court Officer..., Not Reported in Fed....
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 354913
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Christina GONZALEZ, Plaintiff,
v.
BRONX COUNTY HALL OF JUSTICE COURT OFFICER MARK HIRSCHMAN SHIELD 7421, in his individual
capacity, Bronx County Hall of Justice Court Officer Captain Roberto Vargas, in his individual capacity, Bronx
County Hall of Justice Court Officer Peter Dauria Tax Registry No. A7123, in his individual capacity, Defendants.
1:15-cv-810-GHW
|
Signed 01/28/2016
Attorneys and Law Firms
Paul Lance Mills, Law Office of Paul L. Mills, New York, NY, for Plaintiff.
Michael Adam Berg, Office of the Attorney General, New York, NY, for Defendants.
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, United States District Judge
*1 Ms. Christina Gonzalez was arrested several times at the Bronx criminal courthouse while protesting the New York City
Police Department's “stop and frisk” policy. She claims that the court's officers arrested her in order to chill her exercise of
her First Amendment rights, and that during each of her arrests, the officers used excessive force against her. Defendants have
moved to dismiss the first of Ms. Gonzalez's claims because she filed her complaint one day after the expiration of the statute of
limitations. Defendants have also moved to dismiss certain of her claims for failure to state a claim. Because the Court finds that
the circumstances that caused Ms. Gonzalez to miss the filing deadline by one day justify the application of equitable tolling,
the Court denies defendants' motion in part. Because the injuries alleged by Ms. Gonzalez are not sufficient to state a claim for
use of excessive force, the Court grants defendants' motion in part.
I. Factual Allegations 1
Ms. Gonzalez repeatedly protested the NYPD's “stop and frisk” policies in demonstrations at the criminal courthouse in the
Bronx. First Amended Complaint (“FAC”), Dkt. No. 13 ¶¶ 1, 8. Indeed, because Ms. Gonzalez was particularly active, the
NYPD circulated a flyer with her name and photo, identifying her as a “professional agitator.” Id. ¶ 1. As a result of her protests,
Ms. Gonzalez was arrested by court officers on three separate occasions, each of which is described below.
A. The February 2012 Arrest
Ms. Gonzalez was first arrested on February 1, 2012. Ms. Gonzalez was at the courthouse to observe the scheduled court
appearance of a fellow protester. Court Officer Mark Hirschman recognized Ms. Gonzalez as a frequent protester, and
approached her in a hallway of the courthouse. Officer Hirschman grabbed Ms. Gonzalez's bag and her wrist, twisting her
painfully. The officer then threw Ms. Gonzalez against a wall, bruising her shoulders. Officer Hirschman handcuffed Ms.
Gonzalez tightly, then dragged her down the hall to an elevator. While being dragged, all of Ms. Gonzalez's weight was
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 57 of 97

Gonzalez v. Bronx County Hall of Justice Court Officer..., Not Reported in Fed....
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
concentrated on the handcuffs, which cut into her wrists. Officer Hirschman and two other officers then crushed Ms. Gonzalez
against the elevator wall, smothering her, and, again, bruising her shoulders.
Officer Hirschman swore out a criminal complaint against Ms. Gonzalez in connection with her arrest. Ms. Gonzalez alleges
that Officer Hirschman lied in that complaint, falsely stating that Ms. Gonzalez had disobeyed the officer's requests to put away
or turn over video and audio recording devices. As a result of her arrest, Ms. Gonzalez was held in police custody on Riker's
Island for forty one hours. Ms. Gonzalez was forced to return to court at least ten times to defend herself against the charges
initiated against her by Officer Hirschman. More than three years elapsed before all of the charges against Ms. Gonzalez relating
to her arrest were ultimately dismissed on June 25, 2015.
B. The April 2012 Arrest
*2 Ms. Gonzalez was arrested for the second time on April 10, 2012. The complaint suggests that Ms. Gonzalez was on her
way into the courthouse for a scheduled hearing in connection with her February arrest when she was confronted by Captain
Vargas. Like Officer Hirschman, Captain Vargas recognized Ms. Gonzalez as a frequent protester; she was wearing a red shirt
with the inscription “Warning: Stop + Frisk Kills.” Captain Vargas ordered Ms. Gonzalez to remove her shirt, or to obscure its
inscription before entering the courthouse. That Ms. Gonzalez refused to do, “stating that she had a freedom of speech right
to wear said shirt displaying its inscription.” FAC ¶ 48.
Captain Vargas reacted by ordering Court Officer Peter Dauria to arrest Ms. Gonzalez. Officer Dauria handcuffed Ms. Gonzalez,
and dragged her away. Ms. Gonzalez alleges that the handcuffs were too tight, and that the weight of her body was concentrated
on her wrists as the officers dragged her away. As a result, she suffered bruising and abrasions to her wrists. Ms. Gonzalez was
released after two hours in custody; the criminal charges brought against her in connection with her arrest were terminated in
her favor without conviction.
C. The July 2012 Arrest
The final arrest at issue in this case took place on July 12, 2012. Ms. Gonzalez had been ordered to appear at the courthouse
on that day, and was standing outside of the courthouse, talking with her defense attorney. A friend of Ms. Gonzalez saw
Officer Hirschman and asked Ms. Gonzalez if he was the officer who had previously attacked her. The amended complaint is
unclear whether it was that question, or something altogether different, that provoked Captain Vargas and Officer Hirschman.
But after Ms. Gonzalez's friend asked her question, Captain Vargas and Officer Hirschman restrained both Ms. Gonzalez and
her friend. Officer Hirschman again handcuffed Ms. Gonzalez's wrists. As in the other incidents, Ms. Gonzalez alleges that
the handcuffs were too tight, and that she was dragged away from the area in a way that pressed the full weight of her body
against the handcuffs, which cut into her wrists. As a result, Ms. Gonzalez wrists were bruised and abraded. Ms. Gonzalez was
released from custody after ninety minutes. As before, the criminal charges brought against her in connection with her arrest
were terminated in her favor without conviction.
II. Procedural History
Ms. Gonzalez first filed this action on February 3, 2015. She filed an amended complaint on June 28, 2015. Defendants have
moved to dismiss the amended complaint in part, raising three principal arguments. First, defendants argue that all claims arising
out of the February 2012 incident are barred by the three-year statute of limitations that applies to Section 1983 claims in New
York. Second, defendants contend that the excessive force claims arising out of the April and July 2012 incidents fail to state a
claim because Ms. Gonzalez alleged neither that the application of force caused her serious and lasting injury nor that she had
complained to the arresting officers that the handcuffs were too tight. Finally, defendants seek dismissal of the claims against
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 58 of 97

Gonzalez v. Bronx County Hall of Justice Court Officer..., Not Reported in Fed....
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
Captain Vargas arising out of the July 2012 arrest because, they claim, the complaint does not plead that he was personally
involved in the alleged constitutional tort.
III. Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true
and draw all reasonable inferences in the plaintiff's favor. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir.
2010). To avoid dismissal, a complaint must contain “sufficient factual matter, accepted as true, to 'state a claim to relief that
is plausible on its face.”' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombfy, 550 U.S. 544,
570 (2007)). A formulaic recitation of the elements of a cause of action, devoid of supporting facts, does not suffice. Id. To
satisfy the “plausibility” requirement, the plaintiff must plead facts that permit the court “to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556).
IV. Discussion
A. Expiration of the Statute of Limitations for the February Incident
*3 Defendants first argue that the claims arising from the February incident are time-barred. “The statute of limitations for
claims brought under Section 1983 is governed by state law, and in this case is the three-year period for personal injury actions
under New York State law.” Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (quoting Schomo v. City of New York, 579
F.3d 176, 181 (2d Cir. 2009)).
Ms. Gonzalez filed her complaint on February 3, 2015—one day after the statute of limitations expired with respect to claims
arising out of the February 1, 2012 incident. 2 Ms. Gonzalez concedes that she failed to file this action within the statute of
limitations. She argues instead that her claim should be preserved by application of either the continuing violation doctrine or
the doctrine of equitable tolling. The Court finds that Ms. Gonzalez is entitled to equitable tolling of her claim in this instance.
As a result, the Court does not address Gonzalez's continuing violation argument.
Compliance with the statute of limitations is not a jurisdictional bar to claims arising under Section 1983. Consequently, such
claims may be subject to equitable tolling. Jefferson v. Kelly, No. 06-CV-6616 (NGG) (LB), 2008 WL 1840767 at *4 (E.D.N.Y.
Apr. 22, 2008) (noting in a Section 1983 action “that a statute of limitations is not jurisdictional, but rather is subject to waiver,
estoppel, and equitable tolling.”); Moses v. Westchester Cty. Dep't of Corr., 951 F. Supp. 2d 448, 456 (S.D.N.Y. 2013) (permitting
equitable tolling of claims in a Section 1983 action). “Under the doctrine of equitable tolling, a court may, under compelling
circumstances, make narrow exceptions to the statute of limitations in order 'to prevent inequity.'” In re U.S. Lines, Inc., 318
F.3d 432, 436 (2d Cir. 2003). However the doctrine is reserved for “rare and exceptional” circumstances. Smith v. McGinnis, 208
F.3d 13, 17 (2d Cir. 2000). “When determining whether equitable tolling is applicable, a district court must consider whether
the person seeking application of the equitable tolling doctrine (1) has 'acted with reasonable diligence during the time period
she seeks to have tolled,' and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.” Zeriffi
—Rdelglass v. New York City Transit Auth., 333 F.3d 74, 80—81 (2d Cir. 2003) (internal quotation marks omitted). “Equitable
tolling is generally considered appropriate 'where the plaintiff actively pursued judicial remedies but filed a defective pleading
during the specified time period' ....” Id. at 80 (quoting Brown v. Parkchester S. Condos., 287 F.3d 58, 60 (2d Cir. 2002)).
Plaintiff's counsel represented to the Court that Ms. Gonzalez waited to file her complaint until the statutory period had nearly
expired because the criminal proceedings arising out of Ms. Gonzalez's first arrest had not yet been resolved. See Transcript of
the June 3, 2015 conference, Dkt. No. 30 at 4. Following the completion of those proceedings, plaintiff's counsel intended to
file the complaint on January 30, 2015—the second to last business day within the statute of limitations. On that day, plaintiff's
counsel attempted to file the complaint along with a photocopy of plaintiff's request to proceed in forma pauperis (“IFP”).
Although the IFP application was properly completed and executed, plaintiff contends that the filing was rejected by the clerk
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 59 of 97

Gonzalez v. Bronx County Hall of Justice Court Officer..., Not Reported in Fed....
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
of the Southern District of New York because the IFP application was a photocopy, not the original document itself. Plaintiff's
Opposition (“Pl. Opp'n”), Dkt. No. 20 at 3-6. Plaintiff's counsel explains that the rejection was unexpected because the Court's
Electronic Case Filing Rules & Instructions do not explicitly require paper originals at the time of filing for many items,
including IFP applications. Id. at 4. After the complaint was rejected, plaintiff's counsel requested the original IFP application
from Ms. Gonzalez, who had to mail the form to him from New Mexico. Plaintiff's counsel successfully filed the complaint
on February 3, 2015, after he received the original IFP application. Ms. Gonzalez made no changes to the IFP application or
to the complaint during the intervening days, except to add a footnote in the complaint that described counsel's attempt to f i
l e on January 30, 2015. Id.
*4 Ms. Gonzalez has demonstrated that she acted with reasonable diligence during the time that she seeks to have tolled.
Zerilli—Edelglass, 333 F.3d at 80. She is only seeking to toll one day. The record demonstrates that plaintiff's counsel acted
diligently to satisfy the clerk's request for an original signed copy of the IFP application from the time that he was made aware
of that requirement. The Court views this situation as analogous to the filing of a defective pleading during the specified time
period. But for the Clerk's Office rejection of the photocopied IFP application, Ms. Gonzalez would have timely commenced
this action. The Court is conscious of the fact that an administrative hurdle allegedly imposed by court staff impeded plaintiff's
ability to file her action timely. Under these particular and unusual circumstances, the Court believes that equity should afford
plaintiff one day of grace. Therefore, the Court applies the doctrine of equitable tolling, and denies defendants' motion to dismiss
plaintiff's claims relating to the February 2012 arrest.
B. Excessive Force Claims for the April and July Arrests
Defendants next contend that Ms. Gonzalez's excessive force allegations for the April and July incidents fail to state a claim. 3
“The Fourth Amendment prohibits the use of excessive force in making an arrest, and whether the force used is excessive is to
be analyzed under that Amendment's 'reasonableness' standard.” Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015)
(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)) (internal quotation marks omitted). To determine whether the force
used in a given arrest is reasonable, courts pay “careful attention to the facts and circumstances of each particular case,” and
judge the “reasonableness” of the arrest “from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. (quoting Graham v. Connor, 490 U.S. at 396).
Ms. Gonzalez's excessive force claims stemming from her April and July arrests are premised on her allegations that she suffered
“bruising and abrasions to her wrists” as a result of tight handcuffs and the pressure placed on them. FAC ¶¶ 52, 70. In analyzing
excessive force claims arising out of the use of handcuffs, courts in this circuit frequently consider “(1) whether the handcuffs
were unreasonably tight; (2) whether the defendants ignored the plaintiff's pleas that the handcuffs were too tight; and (3) the
degree of injury to the wrists.” Gonzalez v. City of New York, No. 14 Civ. 7721 (LGS), 2015 WL 6873451, at *9 (S.D.N.Y. Nov.
9, 2015). “The injury requirement is particularly important, because in order to be effective, handcuffs must be tight enough
to prevent the arrestee's hands from slipping out.” Morocho v. New York City, No. 13 Civ. 4585 (KPF), 2015 WL 4619517,
at *7-8 (S.D.N.Y. July 31, 2015) (internal quotations and citations omitted). Furthermore, there is a consensus among district
courts in this circuit that “[a] claim of excessive force is not established by allegations that overly tight handcuffs caused minor,
temporary injuries.” Guerrero v. City of New York, No. 12 Civ. 2916 (RWS), 2013 WL 5913372, at *6 (S.D.N.Y. Nov. 4, 2013).
The complaint fails to plead a viable claim for excessive use of force with respect to the April and July arrests. While Ms.
Gonzalez alleges that the handcuffs were too tight on both occasions, she does not allege that she asked either officer to loosen
her handcuffs or that either officer ignored such pleas. Moreover, Ms. Gonzalez's allegations of “bruising and abrasions to her
wrists” as a result of the tight handcuffs are precisely the type of minor injuries routinely held by courts in this circuit to be
insufficient to state a claim of excessive force. See, e.g., Pierre v. City of New York, No. 12 Civ. 9462 (LAK) (GWG), 2014
WL 56923, at *9 (S.D.N.Y. Jan. 7, 2014) (allegations that tight handcuffs left “indentations” on wrists failed to state a claim of
excessive force); Guerrero, 2013 WL 5913372, at *6 (allegations that tight handcuffs caused “swelling and contusions” failed
to state a claim of excessive force); Reary v. Beneri, 09 Civ. 4444 (SJF) (AKT), 2011 WL 5546237, at *4, n. 4 (E.D.N.Y. Nov.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 60 of 97

Gonzalez v. Bronx County Hall of Justice Court Officer..., Not Reported in Fed....
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
9, 2011) (allegations that tight handcuffs caused “heavy swelling in both wrists” insufficient to state a claim of excessive force);
Wilder v. Vill. of Amityville, 288 F. Supp. 2d 341, 344 (E.D.N.Y. 2003) (allegations that tight handcuffs caused inflammation
for a period of twenty-four hours insufficient to state a claim of excessive force); see also Higginbotham v. City of New York,
No. 14-cv-8549 (PKC), 2015 WL 2212242, at *6 (S.D.N.Y. May 12, 2015) (“[T]here is a consensus in the case law that tight
handcuffing does not constitute excessive force unless it causes injuries beyond pain and bruising.”). Therefore, Ms. Gonzalez's
claims regarding excessive use of force in connection with the April and July arrests are dismissed.
C. Personal Involvement of Captain Vargas in the July Incident
*5 Finally, defendants argue that all claims against Captain Vargas arising out of the July incident must be dismissed because
plaintiff has not alleged that he was personally involved in the incident. “It is well settled that, in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff must show, inter alia, the defendant's personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). In Colon v. Coughlin, the
Second Circuit described a variety of means by which the personal involvement of a supervisory defendant can be shown. 58
F.3d 865, 873 (2d Cir. 1995). The first route described by the Circuit was the simplest—evidence that “the defendant participated
directly in the alleged constitutional violation ....” Id. The Second Circuit has explained that the term “direct participation”
includes “personal participation by one who has knowledge of the facts that rendered the conduct illegal.” Provost v. City of
Newburgh, 262 F.3d 146, 155 (2d Cir. 2001). But the term does not foreclose liability of a person who, with knowledge of the
illegality, acts in a more indirect manner such as by “ordering or helping others to do the unlawful acts.” Id.
In her original complaint, Ms. Gonzalez alleged that during the July incident “Vargas physically restrained and seized Plaintiff's
friend,” while Officer Hirschman “in the presence of Defendant Vargas, physically restrained and seized Plaintiff.” Original
Complaint, Dkt. No. 1, ¶ 61-62. In the amended complaint, filed after defendants disclosed their intention to raise the argument
that the complaint did not adequately plead Captain Vargas's involvement, Ms. Gonzalez modified those allegations to say that
“Vargas and Hirschman, physically restrained and seized Plaintiff's friend, and Plaintiff. ...” FAC ¶ 68. In defendants' view, “the
Amended Complaint tries to obscure the fact that Sgt. Vargas detained Plaintiff's friend, not Plaintiff herself.” Defendants' Brief,
Dkt. No. 18 at 18. Notwithstanding the language of the amended complaint, defendants ask the Court to find that Captain Vargas
had no physical contact with Ms. Gonzalez on that day, and, as a result, was not personally involved in the constitutional tort.
While the Court understands defendants' skepticism regarding the fortuitous evolution of the complaint's allegations, the Court
is bound to accept the factual allegations in the operative complaint as true. The amended complaint plainly states that Captain
Vargas and Officer Hirschman collectively restrained and seized Ms. Gonzalez. FAC ¶ 68. Accordingly, Ms. Gonzalez has
sufficiently alleged that Captain Vargas personally participated in the alleged constitutional violations that took place during
the July incident. Ms. Gonzalez claims against Captain Vargas arising from the events of July 12, 2012 survive the defendants'
motion to dismiss. Defendants are free to contest the accuracy of the factual allegations in the complaint on summary judgment
or at trial.
D. Leave to Amend First Amended Complaint
Ms. Gonzalez has requested leave to file a second amended complaint. Pl. Opp'n at 6. “When a motion to dismiss is granted,
the usual practice is to grant leave to amend the complaint.” Hoyden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999). Leave
to amend should be granted unless there is evidence of undue delay, bad faith, undue prejudice, or futility. Milanese v. Rust—
Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). All of Ms. Gonzalez's claims survive this motion except for her excessive force
claims arising from the April and July incidents. The Court has already granted Ms. Gonzalez leave to amend her complaint
once to bolster the allegations related to her excessive force claims. Nonetheless, the Court will grant Ms. Gonzalez leave to
further amend her complaint to address those deficiencies.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 61 of 97

Gonzalez v. Bronx County Hall of Justice Court Officer..., Not Reported in Fed....
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 6
V. Conclusion
For the foregoing reasons, defendants' motion to dismiss is granted in part and denied in part. All of Ms. Gonzalez's claims
arising from the events of February 1, 2012 survive the motion to dismiss. Ms. Gonzalez's excessive force claims arising from
the events of April 10, 2012 and July 12, 2012 are dismissed. Ms. Gonzalez's claims against Captain Vargas arising from the
events of July 12, 2012 survive the motion to dismiss.
*6 The Clerk of the Court is directed to terminate the motion pending at docket number 16.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 354913
Footnotes
1 Unless otherwise noted, the facts are taken from the amended complaint, and are accepted as true for purposes of this
Rule 12(b)(6) motion. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, “[t]he tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
2 The effective expiration of the statute of limitations was February 2, 2015 because February 1, 2015 was a Sunday.
3 Defendants have not asserted that the complaint's allegations regarding the February 2012 arrest fail to state a claim
for use of excessive force.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 62 of 97

Horace v. Gibbs, 802 Fed.Appx. 11 (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
802 Fed.Appx. 11
This case was not selected for publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.
John L. HORACE, Plaintiff-Appellant,
v.
Kevin GIBBS, Field Parole Officer; Dawn Anderson, Senior Parole Officer, Defendants-Appellees,
Monalto, Parole Polygrapher, New York State Division of Parole, City of Rochester, Defendants.
19-59-pr
|
February 06, 2020.
Synopsis
Background: Arrestee brought § 1983 action against two parole officers alleging that they were deliberately indifferent to
his serious medical needs and used excessive force when they handcuffed him too tightly while arresting him for a parole
violation. The United States District Court for the Western District of New York, William M. Skretny, Senior District Judge,
2017 WL 4344435, granted officers' motion to dismiss the deliberate indifference claim. After discovery, the District Court
adopted report and recommendation of United States District Court for the Western District of New York, Hugh B. Scott, United
States Magistrate Judge, 2018 WL 4901040, and granted officers' motion for summary judgment on excessive force claim.
Arrestee appealed.
Holdings: The Court of Appeals held that:
[1] arrestee failed to allege sufficiently serious circumstances as required to state claim for deliberate indifference;
[2] arrestee failed to allege that his serious medical needs were not met, as required to state claim for deliberate indifference;
[3] genuine issue of material fact as to whether arrestee posed a safety threat necessitating tight handcuffing precluded summary
judgment; and
[4] genuine issue of material fact as to whether arrestee complained that handcuffs were too tight precluded summary judgment.
Affirmed in part, vacated in part, and remanded.
Procedural Posture(s): On Appeal; Motion to Dismiss for Failure to State a Claim; Motion for Summary Judgment.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 63 of 97

Horace v. Gibbs, 802 Fed.Appx. 11 (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
West Headnotes (4)
[1] Constitutional Law Conduct
Constitutional Law Medical treatment
Prisons Health and Medical Care
Search, Seizure, and Arrest Medical needs
Sentencing and Punishment Physical restraints
Arrestee failed to allege sufficiently serious circumstances to state a claim that two parole officers were deliberately
indifferent to arrestee's serious medical needs, under either Eighth or Fourteenth Amendment, when they handcuffed
him too tightly while arresting him for a parole violation; arrestee alleged that officers were deliberately indifferent
to arrestee's low blood sugar and/or high blood pressure, swelling and cuts arrestee experienced due to tightness of
handcuffs, and back and knee pain arrestee experienced from sitting in an uncomfortable position in parole car. U.S.
Const. Amends. 8, 14; 42 U.S.C.A. § 1983.
45 Cases that cite this headnote
[2] Constitutional Law Medical treatment
Prisons Health and Medical Care
Sentencing and Punishment Medical care and treatment
Arrestee failed to allege that his serious medical needs were not met as required to state a claim under either Eighth
or Fourteenth Amendment that parole officers who arrested him were deliberately indifferent to those needs; arrestee
admitted that he was examined and treated for injuries, pain, aches, diabetes, and pain in his back and knees after his
arrest and that he was given insulin for his low blood sugar and kept in nurse's office under observation. U.S. Const.
Amends. 8, 14; 42 U.S.C.A. § 1983.
50 Cases that cite this headnote
[3] Civil Rights Criminal law enforcement; prisons
Summary Judgment Law enforcement activities
Genuine issue of material fact as to whether arrestee posed a safety threat, immediate or otherwise, to parole officers
such that tight handcuffing was necessary when officers arrested him for a parole violation precluded summary
judgment in arrestee's excessive force claim against officers.
4 Cases that cite this headnote
[4] Civil Rights Criminal law enforcement; prisons
Summary Judgment Law enforcement activities
Genuine issue of material fact as to whether arrestee complained to parole officers who handcuffed him while arresting
him for a parole violation that handcuffs were too tight precluded summary judgment in arrestee's excessive force
action against officers.
4 Cases that cite this headnote
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 64 of 97

Horace v. Gibbs, 802 Fed.Appx. 11 (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
*12 Appeal from a judgment of the United States District Court for the Western District of New York (William M. Skretny,
Judge; Hugh B. Scott, Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the
district court is AFFIRMED in part and VACATED in part, and the cause is REMANDED to the District Court for further
proceedings consistent with this order.
Attorneys and Law Firms
FOR PLAINTIFF-APPELLANT: John L. Horace, pro se, Marcy, NY.
FOR DEFENDANTS-APPELLEES: Barbara D. Understood, Solicitor General, Jeffrey W. Lang, Deputy Solicitor General,
Allyson B. Levine, Assistant Solicitor General of Counsel, for Letitia James, Attorney General State of New York, Albany, NY.
PRESENT: JOSÉ A. CABRANES, ROBERT D. SACK, Circuit Judges, KATHERINE POLK FAILLA, District Judge. *
*13 SUMMARY ORDER
Appellant John L. Horace (“Horace”), pro se, sued Appellees Kevin Gibbs (“Gibbs”) and Dawn Anderson (“Anderson”) (jointly,
“Defendants”), both New York State parole officers, under 42 U.S.C. § 1983, alleging that they handcuffed him too tightly
while arresting him for a parole violation and were deliberately indifferent to his serious medical needs. The District Court
granted Defendants’ motion to dismiss the deliberate indifference claim, but allowed the excessive force claim to proceed. After
discovery, the District Court adopted the magistrate judge's recommendation and granted Defendants’ motion for summary
judgment on the excessive force claim. The District Court adopted in full the magistrate judge's decision that Horace could not
prevail on the claim as a matter of law because the evidence demonstrated that his wrist injuries were minor and temporary. This
appeal followed. Horace also moved in this Court for “money damages.” We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues on appeal.
I.
We review grants of motions to dismiss and for summary judgment de novo. Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d
51, 59 (2d Cir. 2016) (motion to dismiss), Sotomayor v. City of New York, 713 F.3d 163, 164 (2d Cir. 2013) (summary judgment).
In reviewing a district court's dismissal of a claim pursuant to Rule 12(b)(6), we construe the complaint “liberally, accepting
all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.” Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). In reviewing a district court's order granting summary judgment, we determine
whether the district court properly concluded that there was no genuine dispute as to any material fact and that the moving party
was entitled to judgment as a matter of law. See Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012).
II.
To state a constitutional claim of inadequate medical care, a prisoner must allege that a defendant was deliberately indifferent
to his serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834–35, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A post-
conviction-prisoner's deliberate indifference *14 claim is analyzed under the Eighth Amendment while the same claim raised
by a pretrial detainee is analyzed under the Due Process Clause of the Fourteenth Amendment. Darnell v. Pineiro, 849 F.3d
17, 29 (2d Cir. 2017). Horace was a parolee, and we have not addressed where parolees fall on the continuum. The District
Court concluded that the Fourteenth Amendment applied to Horace's claim. We need not decide which Amendment applies
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 65 of 97

Horace v. Gibbs, 802 Fed.Appx. 11 (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
to this claim, however, because Horace has failed to state a claim under the standard imposed by either Eighth or Fourteenth
Amendments.
This standard requires that plaintiffs satisfy what are commonly referred to as the “objective and subjective prongs.” For both
the Eighth and Fourteenth Amendments, the objective prong poses the same standard. Darnell, 849 F.3d at 32. Under the
objective prong, the plaintiff must show that the alleged deprivation of medical care was “sufficiently serious.” Salahuddin v.
Goord, 467 F.3d 263, 279 (2d Cir. 2006) (internal quotation marks omitted). “There is no ‘static test’ to determine whether a
deprivation is sufficiently serious; instead, the conditions themselves must be evaluated in light of contemporary standards of
decency.” Darnell, 849 F.3d at 30. Relevant factors include “whether a reasonable doctor or patient would find [it] important
and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic
and substantial pain.” Salahuddin, 467 F.3d at 280 (internal quotation marks and citations omitted).
The Eighth and Fourteenth Amendments, however, embrace different definitions of the “subjective” or “mens rea prong.”
Darnell, 849 F.3d at 35. The mens rea prong under the Eighth Amendment requires that the defendant official acted or failed
to act “while actually aware of a substantial risk that serious inmate harm will result.” Salahuddin, 467 F.3d at 280. Under
the Fourteenth Amendment, an official does not act in a deliberately indifferent manner toward an arrestee unless the official
“acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that
the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition
posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35 (emphasis added).
[1] Horace alleged that Gibbs and Anderson were deliberately indifferent to: (1) his low blood sugar and/or high blood pressure;
(2) the swelling and cuts he experienced due to the tightness of the handcuffs; and (3) the back and knee pain he experienced
from sitting in an uncomfortable position in the parole car. We agree with the District Court's conclusion that these conditions
are not sufficiently serious to meet the objective prong. See, e.g., Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (condition
must be a “condition of urgency, one that may produce death, degeneration, or extreme pain”).
[2] Even if the conditions were sufficiently serious, we also agree with the District Court that Horace failed to allege that prison
officials were deliberately indifferent to his medical needs, as that prong is defined under either Amendment. To the contrary,
Horace admits that Defendants attended to his alleged medical conditions. Horace alleged that he was “examined and treated”
for “injuries, pain, aches, diabetes” and “pain in his back and knees,” Record on Appeal (“ROA”) doc. 1 at 3, and further
alleged that shortly after he was arrested he was “given insulin for his low blood sugar and kept in the Nurses’ Office under
observation.” Id. at 6. Accordingly, the District Court did not err in dismissing the deliberate indifference claim. See *15 Hill
v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011) (plaintiff's wrist was broken due to the misuse of handcuffs, but his deliberate
indifference claim failed because he received a cast, and there was “no indication ... that any medical provider recommended
treatment different from the treatment that [Plaintiff] was afforded”).
III.
We disagree, however, with the District Court's resolution of the excessive force claim. In recommending that the District
Court grant Defendants’ motion for summary judgment, the magistrate judge identified a three-part test that was then widely
used among the district courts, under which courts would consider whether the handcuffs were unreasonably tight; whether the
defendants ignored the plaintiff's pleas that the handcuffs were too tight; and the degree of injury to the wrists. 1 The magistrate
judge then recommended granting summary judgment for the defendants because there was “a consensus” among district courts
“that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort and
bruising,” ROA doc. 89 at 6–7, and Horace was “unable to establish any triable issue of fact regarding injuries stemming from
the handcuffing[.]” Id. at 9. In other words, the magistrate judge relied on one factor—the absence of injury— and did not
discuss the other factors, i.e., whether the handcuffs were unreasonably tight under the circumstances and whether the defendants
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 66 of 97

Horace v. Gibbs, 802 Fed.Appx. 11 (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
ignored the plaintiff's complaints. The District Court then accepted the report and recommendation in its entirety, “including
the authorities cited and the reasons given therein.” ROA doc. 95 (Text Order).
After judgment was entered and while this appeal was pending, this Court decided Cugini v. City of New York, 941 F.3d 604
(2d Cir. 2019). In that case, we discussed the very three-factor test that the magistrate judge employed here, and explained that,
although the factors may “prove useful to a district court in assessing the soundness of a handcuff-based excessive force claim,”
no one factor is dispositive, and the test is ultimately one of reasonableness that “is not limited to a factual checklist.” Id. at
613. Rather, courts must be guided by “a careful balance between the nature and quality of the intrusion and the countervailing
government interests at stake under the circumstances.” Id. (internal quotation marks and citation omitted). We continued:
The question is ... whether an officer reasonably should have known during handcuffing that his use of
force was excessive. A plaintiff satisfies this requirement if either the unreasonableness of the force used
was apparent under the circumstances, or the plaintiff signaled her distress, verbally or otherwise, such
that a reasonable officer would have been aware of her pain, or both.
Id. (emphasis added).
[3] Here, the District Court, having adopted completely the magistrate's recommendation, erred by treating one factor—the
absence of serious injury—as dispositive, without considering other factors *16 such as the reasonableness of tight handcuffs
under the circumstances, and whether the defendants ignored the plaintiff's complaints. And on those factors, there was room
for dispute. Horace was a parolee, and his underlying crimes—rape and sexual assault—were serious. The arrest that gave rise
to the current dispute, however, was for violating his parole by driving a car, having sex with women other than his wife, and
using an herbal supplement for “male enhancement,” which he was prohibited from using. There was room for doubt as to
whether Horace posed a safety threat, immediate or otherwise, to the parole officers such that tight handcuffing was necessary,
and although there was evidence that Horace once attempted to flee the country while out on bail on pending charges, there
was no indication that during the arrest giving rise to this claim he resisted arrest or attempted to evade arrest by flight. On the
contrary, there was record evidence that Horace cooperated and was compliant. See Cugini, 941 F.3d at 609 (explaining that
courts should examine “the severity of the crime” and “whether the suspect poses a safety or flight risk or resists arrest” when
determining whether force is excessive).
[4] There was also a significant dispute of fact as to whether Horace complained that the handcuffs were too tight. The
Defendants submitted declarations averring that Horace never complained. But Horace testified as his deposition that he
repeatedly complained to the defendants that the handcuffs were too tight and that Defendants refused to loosen them despite
his request.
CONCLUSION
We have considered all of Horace's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the
District Court's dismissal of Horace's deliberate indifference claim, VACATE the District Court's dismissal of the excessive
force claim, and REMAND the cause to the District Court for consideration of the other factors identified in Cugini. Remand
will also provide the District Court an opportunity to determine whether the Defendants are entitled to qualified immunity. See
generally Mullenix v. Luna, ––– U.S. ––––, 136 S. Ct. 305, 193 L.Ed.2d 255 (2015) (discussing qualified immunity in relation
to an excessive force claim under the Fourth Amendment).
In addition, Horace's motion for “money damages” is DENIED. Each party shall bear their own costs.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 67 of 97

Horace v. Gibbs, 802 Fed.Appx. 11 (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 6
All Citations
802 Fed.Appx. 11
Footnotes
* Judge Katherine Polk Failla, of the United States District Court for the Southern District of New York, sitting by
designation.
1 In Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court held that “all
claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory
stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment[.]” Soares v. State of Conn.,
8 F.3d 917, 921 (2d Cir. 1993) (citing Graham). Because Horace raised an excessive force claim against the parole
officers who arrested him while he was a “free citizen,” the District Court correctly analyzed his claim as arising under
the Fourth rather than the Eighth Amendment.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 68 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 3482877
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
ISSIAH TRAVIS, Plaintiff,
v.
DEPARTMENT OF CORRECTIONS (NYC); NEW YORK CITY;
C.O. MCCALL; GRVC MAIL ROOM EMPLOYEES, Defendants.
25-CV-5094 (LTS)
|
Filed 12/03/2025
Attorneys and Law Firms
Issiah Travis, East Elmhurst, NY, Pro Se.
ORDER TO AMEND
LAURA TAYLOR SWAIN Chief United States District Judge
*1 Plaintiff, who currently is detained at the George R. Vierno Center (“GRVC”) on Rikers Island, brings this action, pro se,
under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. By order dated July 31, 2025, the
Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. 1 For the reasons set
forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against
a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss
a prisoner's IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B),
1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the Court lacks
subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted). But the “special
solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with
Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that
the pleader is entitled to relief.
Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court
to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept
all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as
true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 69 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts
make it plausible—not merely possible—that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff Issiah Travis brings this action against the New York City Department of Correction (“DOC”), the City of New York,
GRVC mailroom officer Ms. McCall, and “GRVC mail room employees.” (ECF 1 at 3.) He alleges that the events giving rise
to his claims occurred between February 10, 2025, and June 5, 2025, at GRVC. The following allegations are taken from the
complaint. 2 DOC employees assaulted Andre Antrobus, another detainee at GRVC, and took his mail. Unidentified DOC staff
tried “to get [Plaintiff] assaulted by inmates” because they “misassume[d]” that he was helping Antrobus. (Id. at 4.) Because
they believed Plaintiff was helping Mr. Antrobus, these unspecified DOC employees started threatening Plaintiff, “taking [his]
evidence,” and “ripping up [his] mail.” (Id.)
*2 Plaintiff alleges that this complaint is his “fourth submission of a [Section] 1983 federal complaint,” and that McCall “stated
she took [his] mail.” (Id.) Plaintiff heard from DOC employees that “they rip up our mail, especially CO Lang Cayenne.” (Id.)
Plaintiff further alleges,
[U]nreasonable searches for s[ei]zure of exonerating evidence for freedom! Also Blocking and taking
writs of Haebus corpus and motions for freedom and liberty! One is they stated several times centuries
old institution moved Attorney General 120 Broadway NYC 10271-0332 for long time several writs
submitted under ‘Mail Box rule’! And 320 Jay st Bkln 11201 moves also 60 center st NYC moved so
they Blocking my defense like Antrobus for 40 years.
(Id. at 5.)
Plaintiff attaches to the complaint various documents that appear to be written in several different handwritings and bear the
signatures of different individuals. Many of those documents contain allegations relating to the experiences of Andre Antrobus.
For example, one of the documents is a letter from Mr. Antrobus that appears to be addressed to the Appellate Division, Second
Department, in which he appears to suggest that DOC employees have been interfering with his mail or blocking his access
to the courts. (See id. at 18-19.)
Another attached document is an “affidavit” that alleges, inter alia, “Covid is part of New World Order scheme to move up to
level of New World order to use as excuses .. .. D-O-C- and courts do not follow covid-19 protocols still house, line-up and pen
like cattle or chattel [illegible] to make a dollar.” (Id. at 13.) That statement appears to have been signed by seven individuals,
none of whom is Plaintiff.
Also attached are photocopies of mailing envelopes that have been returned and that bear the names of Rikers detainees Andre
Antrobus, Roy Higgins, and Brian Shabazz Palmer. 3 None of the envelopes appear to have been mailed by Plaintiff or bear
Plaintiff's name.
Plaintiff describes his injuries as “liberty and freedom”; “Due process violations”; “Blocking my defense”; and that he “suffer[s]
retaliations of assaults and violence.” (Id. at 5.)
Plaintiff seeks money damages.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 70 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
DISCUSSION
A. Claims on behalf of others
To the extent that Plaintiff seeks to assert claims on behalf of Andre Antrobus or any other individuals, the Court must
dismiss those claims. The statutory provision governing appearances in federal court, 28 U.S.C. § 1654, allows two types of
representation: “that by an attorney admitted to the practice of law by a governmental regulatory body, and that by a person
representing himself.” Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991) (internal quotation marks and
citation omitted). “[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the
other's cause. A person must be litigating an interest personal to him.” Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998).
Plaintiff has not alleged any facts suggesting that he is an attorney. Therefore, he cannot assert any claims on behalf of Andre
Antrobus, or anyone else, and the Court dismisses any claims Plaintiff asserts on behalf of others.
B. Claims against DOC and the City of New York
*3 Plaintiff brings claims against the DOC. As an agency of the City of New York, however, the DOC is not an agency that
can be sued. N.Y. City Charter ch. 17, § 396 (“[A]ll actions and proceedings for the recovery of penalties for the violation of
any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by
law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F. Supp. 2d
385, 395 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”). Any claims against the DOC
must be brought against the City of New York. The Court therefore dismisses Plaintiff's claims against the DOC for failure to
state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff also names the City of New York as a defendant. When a plaintiff sues a municipality under Section 1983, it is not
enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff
must show that the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 563 U.S. 51,
60 (2011) (“A municipality or other local government may be liable under ... section [1983] if the governmental body itself
‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.” (quoting Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to
state a Section 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a municipal policy,
custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See
Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997) (internal
citations omitted).
Plaintiff does not allege facts suggesting that the City of New York has a policy, practice, or custom that has violated his federal
constitutional rights. Plaintiff therefore fails to state a Section 1983 claim against the City of New York. The Court grants
Plaintiff leave to file an amended complaint alleging facts to state a viable Section 1983 claim against the City of New York.
C. Interference with mail claims
Plaintiff alleges that DOC employees have interfered with or tampered with his mail. A prisoner's First Amendment rights
encompass the right to “adequate, effective and meaningful” access to the courts and to the free flow of incoming and outgoing
mail. Bounds v. Smith, 430 U.S. 817, 822 (1977); Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). “[C]ourts have consistently
afforded greater protection to legal mail than to non-legal mail, as well as greater protection to outgoing mail than to incoming
mail.” Davis, 320 F.3d at 351 (citing Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)).
Plaintiff's allegations concerning his legal mail implicate both an access-to-courts claim and a general mail tampering claim.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 71 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
1. Access to courts
Prisoners have “a constitutional right of access to the courts [that] gives rise to a number of derivative rights, including the right
to access legal materials to prepare a case, and the right of indigent inmates to be provided with paper and pens to draft legal
documents and stamps to mail them.” Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008) (citing Bounds, 420 U.S. at
824-28). Protecting these rights “requires prison authorities to assist inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bourdon v.
Loughren, 386 F.3d 88, 92–93 (2d Cir. 2004) (internal quotation marks and citation omitted). Assistance from prison authorities,
however, is “only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental
constitutional rights to the courts.” Lewis v. Casey, 518 U.S. 343, 351 (1996) (internal quotation marks omitted).
*4 To state a claim for denial of access to the courts, a plaintiff must allege facts showing that the defendant's conduct: (1) “was
deliberate and malicious,” and (2) “resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious
legal claim.” Davis, 320 F.3d at 351 (internal quotation marks omitted); see also Christopher v. Harbury, 536 U.S. 403, 415
(2002). To demonstrate actual injury, a plaintiff must allege: (1) a valid underlying cause of action separate from the right-
of-access claim; and (2) frustration or hindrance of the litigation caused by the defendant's actions. See Harbury, 546 U.S. at
415. A mere “delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a
constitutional violation.” Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995) (citing Jones v. Smith, 784 F.2d 149,
151- 52 (2d Cir. 1986)). Furthermore, when a prisoner with appointed counsel claims that prison officials hindered his efforts
to defend himself or pursue other legal claims, “he must show that, on the facts of his case, the provision of counsel did not
furnish him with the capability of bringing his challenges before the courts.” Bourdon, 386 F.3d at 98.
Here, Plaintiff is a pretrial detainee with pending criminal proceedings. Many of the allegations regarding interference with
the mail appear to pertain to Antrobus or other detainees. The only relevant allegations Plaintiff asserts that involve his own
direct experiences are that he has previously submitted Section 1983 complaints, and that Ms. McCall “stated she took [his]
mail.” (ECF 1, at 4.) Even if the Court liberally construed Plaintiff's allegations as claiming that Ms. McCall confiscated his mail,
which does not appear to be the case, he still does not allege any facts suggesting that he is pursuing a “nonfrivolous, ‘arguable’
underlying claim” that has been hindered as a result of delays, withholding, or opening of his mail. Harbury, 546 U.S. at 415.
Furthermore, even if Plaintiff, who is presumably represented by counsel in his pending criminal case, is pursuing a meritorious
legal issue arising from his criminal proceedings, he does not allege any facts explaining why his counsel would be unable to
assert the claim on his behalf, including any claim for habeas corpus relief. See Bourdon, 386 F.3d at 98. Because Plaintiff does
not allege the existence of a valid nonfrivolous underlying cause of action, and he does not explain why his defense attorney
could not raise any arguments in his criminal case, he fails to state an access to courts claim under the First Amendment.
In light of Plaintiff's pro se status, the Court grants Plaintiff leave to amend this claim. Should Plaintiff intend to pursue this
claim, he should name as defendants the individuals whom he alleges denied him access to the courts and allege facts suggesting
that he personally was hindered from pursuing an arguably meritorious legal claim on his own behalf.
2. Mail tampering claim
To state a claim based on general mail tampering, a plaintiff must allege that the incidents: (1) suggest an ongoing practice
of censorship unjustified by a substantial government interest, or (2) have unjustifiably chilled the prisoner's right of access
to the court or impaired his legal representation. Davis, 320 F.3d at 351. “[A]n isolated incident of mail tampering is usually
insufficient to establish a constitutional violation.” Id. at 351-52. As few as two incidents of mail tampering, however, may
constitute a First Amendment violation if indicative of “regular” and “unjustifiable” interference with a prisoner's mail. Id. at
351; see Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986).
Plaintiff does not allege enough facts to suggest that Defendants interfered or tampered with his mail in a manner that rises
to the level of a constitutional violation. It is unclear which allegations in the complaint relate to Plaintiff's own experience,
rather than to the experiences of Mr. Antrobus or other detainees. While Plaintiff appears to allege that Ms. McCall, who is
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 72 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
a mailroom officer, “took” his mail, he does not allege any facts suggesting that she tampered with it, or, even if she did, he
does not allege when and how often such tampering occurred. While Plaintiff alleges that he “heard” from DOC employees
that “they rip up our mail,” such speculation is insufficient to demonstrate an ongoing practice of tampering with his personal
mail. Plaintiff's allegations do not suggest that Defendants subjected him to regular and unjustifiable interference with his mail
or that such interference affected his ability to access the courts or his counsel.
*5 The Court grants Plaintiff leave to amend his mail tampering claim in an amended complaint that complies with the
standards set forth above.
D. Failure to protect claim
Plaintiff's allegations that correction officials at GRVC allowed other detainees to assault him suggest Plaintiff may be attempting
to assert a failure to protect claim. Prison officials are required to take reasonable measures to guarantee the safety of prisoners,
including protecting them from harm caused by other prisoners. See Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); Fischl
v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). A pretrial detainee asserting a failure to protect claim under the Fourteenth
Amendment's Due Process Clause must plead two elements: (1) an “objective” element, which requires a showing that the risk
of harm is sufficiently serious, and (2) a “mental” element, which requires a showing that the officer knew or should have known
of the risk of serious harm but acted with deliberate indifference to that risk. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017);
Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (“Evidence that a risk was obvious or otherwise must have been known
to a defendant may be sufficient for a fact finder to conclude that the defendant was actually aware of the risk.” (quotation
marks omitted)). The mere negligence of a correctional official is not a basis for a claim of a federal constitutional violation
under Section 1983. See Daniels v. Williams, 474 U.S. 327, 335-36 (1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986);
Morales v. New York State Dep't of Corr., 842 F.2d 27, 28 (2d Cir. 1988) (“[A] prisoner cannot base a federal civil rights action
brought under 42 U.S.C. § 1983 on claims of a negligent failure of state prison officials to protect him from injury at the hands
of another inmate.”).
Here, Plaintiff alleges: “Retaliation of DOC employees to get me assaulted by inmates which happen several times cause denial
of medical!” (ECF 1 at 4.) This statement is insufficient to state a viable failure to protect claim. Plaintiff does not name any
defendants who were personally involved in allowing inmates to assault him. Nor does he provide any information about where
and when these events occurred. Furthermore, it is not clear from Plaintiff's allegation whether he was assaulted or whether
he was denied medical care.
The Court grants Plaintiff leave to replead a failure to protect claim in an amended complaint that names as defendants the
individual DOC employees he alleges failed to protect him and alleges details about where, when, and how often the alleged
violations occurred.
E. First Amendment retaliation claim
In his complaint, Plaintiff suggests that DOC employees violated his rights in retaliation for his having provided assistance
to Mr. Antrobus. The Court construes these allegations as an attempt to assert a First Amendment retaliation claim. To state
such a claim, a prisoner must allege: “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse
action against the [prisoner], and (3) that there was a causal connection between the protected ... [conduct] and the adverse
action.” Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (second alteration in original) (internal quotation marks and citation
omitted). Examples of speech protected under the First Amendment include a prisoner filing a grievance on one's own behalf,
Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996), or on behalf of other prisoners as a member of an inmate grievance body,
Dolan v. Connolly, 794 F.3d 290, 294-95 (2d Cir. 2015), or stating that he or she intends to file a grievance, Coleman v. Beale,
636 F. Supp. 2d 207, 211 (W.D.N.Y. 2009). An adverse action is any “retaliatory conduct that would deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights.” Davis, 320 F.3d at 353 (internal quotation
marks and citation omitted). “In order to satisfy the causation requirement, allegations must be sufficient to support the inference
that the speech [or conduct] played a substantial part in the adverse action.” Id. at 354 (internal quotation marks and citation
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 73 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 6
omitted). For example, “[a] plaintiff can establish a causal connection that suggests retaliation by showing that protected activity
was close in time to the adverse action.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009).
*6 Nevertheless, “because virtually any adverse action taken against a prisoner by a prison official—even those otherwise not
rising to the level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act,” the United
States Court of Appeals for the Second Circuit has instructed that federal district courts must “approach prisoner retaliation
claims with skepticism and particular care.” Dolan, 794 F.3d at 295 (internal quotation marks and citation omitted); see also
Graham, 89 F.3d at 79 (“Retaliation claims by prisoners are prone to abuse since prisoners can claim retaliation for every
decision they dislike.” (internal quotation marks and citation omitted)). Accordingly, First Amendment retaliation claims must
be “supported by specific and detailed factual allegations,” and may not be stated “in wholly conclusory terms.” Dolan, 794
F.3d at 295 (internal quotation marks and citation omitted).
Here, Plaintiff does not allege sufficient facts to suggest a viable claim for retaliation. It is unclear from Plaintiff's complaint
whether, in providing unspecified assistance to Mr. Antrobus “with his legal problems” (ECF 1, at 4), Plaintiff engaged in any
activity that was protected under the First Amendment. For example, he does not allege that he filed a grievance using the
facility's grievance procedures on his own behalf or on behalf of Mr. Antrobus. Nor does Plaintiff allege sufficient facts to suggest
that any legal assistance he may have provided was protected under the First Amendment. See Shaw v. Murphy, 532 U.S. 223,
228 (2001) (holding that an inmate has no heightened First Amendment right to provide legal advice to another inmate beyond
the general right to communicate with one another set forth in Turner v. Safely, 482 U.S. 78 (1987)) 4 ; Ahlers v. Grygo, No.
02-CV-3256 (JG) (LB), 2009 WL 3587483, at *4 (E.D.N.Y. Oct. 27, 2009) (“Reporting the wrongdoing of corrections officers
and other prison officials, and providing legal assistance to others who report such wrongdoing, qualifies as protected speech
under the First Amendment” for purposes of a retaliation claim (citing Shaw and Turner)); Auleta v. LaFrance, 233 F. Supp. 2d
396, 399-401 (N.D.N.Y. 2002) (applying Shaw and Turner and holding that “the placement of an inmate in keeplock because he
provided authorized legal assistance to another inmate as part of his assigned employment activities is not reasonably related to
legitimate penological interest”); see also Upsolve, Inc. v. James, 155 F.4th 133, 143-44 (2d Cir. 2025) (holding that New York's
statutes regulating the unauthorized practice of law are content neutral and, therefore, subject only to intermediate scrutiny).
Moreover, other than an allegation that unnamed DOC employees “tried to get [him] assaulted by inmates” (ECF 1, at 4),
Plaintiff does not allege facts suggesting a causal connection between any assistance he provided to Mr. Antrobus and the alleged
adverse actions taken against him by DOC employees, see Espinal, 558 F.3d at 129. Plaintiff also does not identify which DOC
staff members allegedly retaliated against him. Plaintiff therefore fails to state a viable claim for First Amendment retaliation,
and the Court dismisses these claims for that reason. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court also grants Plaintiff leave to replead these claims in an amended complaint in which he alleges facts sufficient to
state a claim of retaliation under Section 1983. Specifically, he must allege facts showing that he engaged in protected speech or
conduct under the First Amendment and that there was a causal connection between his protected activity and any adverse action.
In his amended complaint, Plaintiff should also provide facts explaining the nature of the alleged assistance that he provided
to Mr. Antrobus, including the dates of his assistive conduct, how his assisting Mr. Antrobus led to the alleged violations of
his rights, and who retaliated against him.
LEAVE TO AMEND
*7 Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented
plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657
F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned
that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading
of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 74 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 7
facts to state a valid claim under Section 1983, the Court grants Plaintiff 60 days’ leave to amend his complaint to address the
deficiencies identified above.
In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the
relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must
provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in
deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of
each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and
where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that
Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit
the amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an
“Amended Complaint,” and label the document with docket number 25-CV-5094 (LTS). An Amended Civil Rights Complaint
form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he
cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief
may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore
IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an
appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________ (In the space above enter the full name(s) of the
plaintiff(s).)
-against-
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 75 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 8
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________ (In the space above enter the full name(s) of the
defendant(s). If you cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space
above and attach an additional sheet of paper with the full list of names. The names listed in the above caption must be identical
to those contained in Part I. Addresses should not be included here.)
AMENDED COMPLAINT
*8 under the Civil Rights Act, 42 U.S.C. § 1983
Jury Trial: Yes No
(check one)
____ Civ. _________ ( )
I. Parties in this complaint:
A. List your name, identification number, and the name and address of your current place of confinement. Do the same for any
additional plaintiffs named. Attach additional sheets of paper as necessary.
Plaintiff's Name ___________________________________________________________________
ID# _____________________________________________________________________
Current Institution ________________________________________________________
Address ________________________________________________________________
________________________________________________________________________
B. List all defendants’ names, positions, places of employment, and the address where each defendant may be served. Make
sure that the defendant(s) listed below are identical to those contained in the above caption. Attach additional sheets of
paper as necessary.
Tabular or graphical material not displayable at this time.
II. Statement of Claim:
State as briefly as possible the facts of your case. Describe how each of the defendants named in the caption of this complaint
is involved in this action, along with the dates and locations of all relevant events. You may wish to include further details
such as the names of other persons involved in the events giving rise to your claims. Do not cite any cases or statutes. If you
intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach additional sheets
of paper as necessary.
A. In what institution did the events giving rise to your claim(s) occur?
______________________________________________________________________________________
______________________________________________________________________________________
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 76 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 9
B. Where in the institution did the events giving rise to your claim(s) occur?
______________________________________________________________________________________
C. What date and approximate time did the events giving rise to your claim(s) occur?
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
D. Facts: _________________________________________________________________________________
_____________________________________________________________________________________________
_____________________________________________________________________________________________
_____________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
III. Injuries:
*9 If you sustained injuries related to the events alleged above, describe them and state what medical treatment, if any, you
required and received.
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
IV. Exhaustion of Administrative Remedies:
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 77 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 10
other correctional facility until such administrative remedies as are available are exhausted.” Administrative remedies are also
known as grievance procedures.
A. Did your claim(s) arise while you were confined in a jail, prison, or other correctional facility?
Yes ___ No ___
If YES, name the jail, prison, or other correctional facility where you were confined at the time of the events giving rise to
your claim(s).
______________________________________________________________________________________________
_____________________________________________________________________________________________
______________________________________________________________________________________________
B. Does the jail, prison or other correctional facility where your claim(s) arose have a grievance procedure?
Yes ____ No ____ Do Not Know ____
C. Does the grievance procedure at the jail, prison or other correctional facility where your claim(s) arose cover some or
all of your claim(s)?
Yes ____ No ____ Do Not Know ____
If YES, which claim(s)?
______________________________________________________________________________________
D. Did you file a grievance in the jail, prison, or other correctional facility where your claim(s) arose?
Yes ____ No ____
If NO, did you file a grievance about the events described in this complaint at any other jail, prison, or other correctional
facility?
Yes ____ No ____
E. If you did file a grievance, about the events described in this complaint, where did you file the grievance?
______________________________________________________________________________________
1. Which claim(s) in this complaint did you grieve?
_____________________________________________________________________________________
______________________________________________________________________________________
2. What was the result, if any?
______________________________________________________________________________________
______________________________________________________________________________________
*10 3. What steps, if any, did you take to appeal that decision? Describe all efforts to appeal to the highest level of the
grievance process.
______________________________________________________________________________________
______________________________________________________________________________________
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 78 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 11
______________________________________________________________________________________
______________________________________________________________________________________
F. If you did not file a grievance:
1. If there are any reasons why you did not file a grievance, state them here:
________________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
2. If you did not file a grievance but informed any officials of your claim, state who you informed, when and how, and
their response, if any:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
G. Please set forth any additional information that is relevant to the exhaustion of your administrative remedies.
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
Note: You may attach as exhibits to this complaint any documents related to the exhaustion of your administrative remedies.
V. Relief:
State what you want the Court to do for you (including the amount of monetary compensation, if any,
that you are seeking and the basis for such amount). __________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 79 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 12
________________________________________________________________________________________________________
________________________________________________________________________________________________________
VI. Previous lawsuits:
*11 A. Have you filed other lawsuits in state or federal court dealing with the same facts involved in this action?
Yes ____ No ____
B. If your answer to A is YES, describe each lawsuit by answering questions 1 through 7 below. (If there is more than one
lawsuit, describe the additional lawsuits on another sheet of paper, using the same format.)
1. Parties to the previous lawsuit:
Plaintiff ___________________________________________________________________________________
Defendants ___________________________________________________________________________________
2.Court (if federal court, name the district; if state court, name the county) _________________
_______________________________________________________________________________________
_______3. Docket or Index number _____________________________________________________________
_______4. Name of Judge assigned to your case ______________________________________________
5. Approximate date of filing lawsuit _____________________________________________________
6. Is the case still pending? Yes ____ No ____
If NO, give the approximate date of disposition _____________________________________
7. What was the result of the case? (For example: Was the case dismissed? Was
there judgment in your favor? Was the case appealed?) __________________________________
_______________________________________________________________________________
_______________________________________________________________________________
C. Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment?
Yes ____ No ____
D. If your answer to C is YES, describe each lawsuit by answering questions 1 through 7 below. (If there is more than one
lawsuit, describe the additional lawsuits on another piece of paper, using the same format.)
1. Parties to the previous lawsuit:
Plaintiff ___________________________________________________________________________________
Defendants ___________________________________________________________________________________
2. Court (if federal court, name the district; if state court, name the county) ____________
_______3. Docket or Index number _______________________________________________________________
_______4. Name of Judge assigned to your case _____________________________________________
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 80 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 13
5. Approximate date of filing lawsuit _________________________________________________
6. Is the case still pending? Yes ____ No ____
If NO, give the approximate date of disposition ____________________________________
7. What was the result of the case? (For example: Was the case dismissed? Was
there judgment in your favor? Was the case appealed?) _________________________________
_______________________________________________________________________________
_______________________________________________________________________________
I declare under penalty of perjury that the foregoing is true and correct.
Signed this _____ day of ________________, 20__.
Signature of Plaintiff ________________________________________
Inmate Number ________________________________________
Institution Address ________________________________________
*12 ________________________________________ ________________________________________
________________________________________
Note: All plaintiffs named in the caption of the complaint must date and sign the complaint and provide
their inmate numbers and addresses.
I declare under penalty of perjury that on this _____ day of __________________, 20__, I am delivering this complaint to
prison authorities to be mailed to the Pro Se Office of the United States District Court for the Southern District of New York.
Signature of Plaintiff: ________________________________________
All Citations
Slip Copy, 2025 WL 3482877
Footnotes
1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP.
See 28 U.S.C. § 1915(b)(1).
2 Plaintiff writes using irregular capitalization. For readability, the Court uses standard capitalization when quoting from
the complaint. All other spelling, grammar, and punctuation are as they appear in the complaint unless otherwise noted.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 81 of 97

ISSIAH TRAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS..., Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 14
3 The complaint references “evidence exhibits” that allegedly demonstrate “[f]raudulent USPS stamps” and “[f]raudulent
USPS stickers” that do not have “wiggley void lines on stamps.” (Id. at 12.)
4 In Turner, the Supreme Court held that a prison regulation impinging on a prisoner's constitutional rights is valid “if
it is reasonably related to a legitimate penological interest.” 482 U.S. 78, 89 (1987). Applying that rule, the Court in
Turner upheld as reasonable a rule prohibiting communication between prisoners at different institutions, except for
correspondence that was between family members, that concerned legal matters, or that was in the best interest of the
involved parties. Id. at 81-82, 91-92.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 82 of 97

Noel v. Clouston, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 22945380
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Negrito Paul NOEL, Plaintiff,
v.
Officer Bradley CLOUSTON, Murray's Towing, Three Unknown Officers of the BPD, Brighton
Police Department (BPD) Chief David Catholdi, Town Supervisor William W. Moehle, Defendants.
21-CV-6559 (CJS)
|
Signed June 28, 2022
Attorneys and Law Firms
Negrito Paul Noel, Rochester, NY, Pro Se.
Jonathan Marc Bernstein, Goldberg Segalla LLP, Albany, NY, for Defendants Officer Bradley Clouston, Three Unknown
Officers, Chief David Catholdi.
DECISION AND ORDER
CHARLES J. SIRAGUSA, United States District Judge
*1 This matter is presently before the Court on Plaintiff Negrito Paul Noel's motion for leave to proceed in forma pauperis.
Mot., Aug. 31, 2021, ECF No. 2. For the reasons stated below, Noel's motion to proceed in forma pauperis [ECF No. 2] is
granted, and the action is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Noel is granted leave to amend his claim for
excessive force within thirty days of the date of this order; all other claims are dismissed with prejudice.
BACKGROUND
In August 2021, Noel sent a letter to the Police Department of the Town of Brighton, New York, that read, in pertinent part:
[Y]ou are officially informed that on June 1st, 2021, around 23:41p.m., at 2341 Bright Time-Line [sic] Road, Rochester,
New York, Officer Bradley Clouston and three unknown officers from the Brighton Police Department (BPD) ... stopped my
“Personal Use Vehicle” and arrested me as I was traveling on the public highway for recreational purposes. He was enforcing
“Motor Vehicle” code regulations pertaining to “Drivers”. I informed him that my 2005 Chevy Cavalier is a “Personal Use
Vehicle” and not a “Motor Vehicle”, so his “stop” was arbitrary and inappropriate. The officer ignored my right to use my
“Personal Use Vehicle” ... and continued to unlawfully engage in the enforcement of “Motor Vehicle” code regulations on a
“Personal Use Vehicle” without the authority to do so. Subsequently, five (5) fraudulent “Motor Vehicle” traffic infractions
– VTL codes were issued [pursuant to] ... [New York Vehicle and Traffic Law (NYVAT)] § 511(1)(a), [NYVAT] § 509(1),
[NYVAT] § 401(1)(a), [NYVAT] § 319(1)(U), and [NYVAT] § 1180(d).
.... Basically, Officer Clouston deceptively reclassified my “Personal Use Vehicle” as a “Motor Vehicle” to issue “Motor
Vehicle” traffic infractions. His actions amount to the crime [of] “Fabricating Evidence.”
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 83 of 97

Noel v. Clouston, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
Compl., 27, Aug. 31, 2021, ECF No. 1. Shortly thereafter, Noel filed the instant action, seeking several million dollars in
damages based on his allegations of “conspiracy against rights” in violation of 18 U.S.C. § 241; unreasonable search and seizure
of his vehicle; excessive force; illegal taking; false arrest; violation of due process; theft; negligence; and failure to train.
LEGAL STANDARD
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee
that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).
The determination of whether an in forma pauperis plaintiff should be permitted to proceed under 28 U.S.C. § 1915 involves
two separate considerations. Pace v. Waterbury Police Dep't, No. 3:17CV00426(DJS), 2017 WL 1362683, at *1 (D. Conn. Apr.
12, 2017). First, the Court must determine whether the plaintiff may proceed with the action without prepaying the filing fee
in full. See 28 U.S.C. § 1915(a). Second, the Court must review the complaint to determine whether the plaintiff has stated a
cognizable, non-frivolous claim. Pace, 2017 WL 1362683 at *1. Under 28 U.S.C. § 1915(e), the Court must dismiss the case if
it determines that the case “is frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary
relief against a defendant who is immune from such relief.” § 1915(e)(2)(B)(i)–(iii).
*2 With regards to whether a claim is “frivolous or malicious” under § 1915(e)(2)(B)(i) the Supreme Court has explained that:
[§ 1915(e)] is designed largely to discourage the filing of, and waste of judicial and private resources
upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing
suits and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil
Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on
an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual contentions are clearly baseless.
Neitzke v. Williams, 490 U.S. 319, 324 (1989).
With regards to whether a plaintiff states an actionable claim under § 1915(e)(2)(B)(ii), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. It requires “enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence of [the alleged misconduct].” Twombly, 550 U.S. at 556. Where a court is unable
to infer more than the possibility of misconduct based on the pleaded facts, the pleader has not demonstrated that he is entitled to
relief and the action is subject to dismissal. Iqbal, 556 U.S. at 678. When applying this standard, a district court must accept the
allegations contained in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Burnette v. Carothers,
192 F.3d 52, 56 (2d Cir. 1999), cert. denied, 531 U.S. 1052 (2000).
DISCUSSION
Because Noel is proceeding pro se, the Court must construe his submissions liberally, “to raise the strongest arguments that
they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). With respect to the first consideration under 28 U.S.C. §
1915, the Court has reviewed Noel's in forma pauperis application and assumes for the purposes of this decision and order that
he has met the statutory requirements for in forma pauperis status. With respect to the second consideration – whether Noel has
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 84 of 97

Noel v. Clouston, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
stated a cognizable, non-frivolous claim – the Court has reviewed Noel's papers and finds that his complaint is frivolous, and
that he has failed to state any claim upon which relief can be granted.
Conspiracy Against Rights under 18 U.S.C. § 241
To begin with, the Court notes that 18 U.S.C. § 241 is a federal criminal statute. Hill v. Didio, 191 F. App'x 13, 14 (2d Cir.
2006). As a general matter, crimes are prosecuted by the government, not by private parties. Id. at 14–15. Therefore, “[a] private
individual may bring suit under a federal [criminal] statute only when Congress specifically intended to create a private right
of action.” Id. (citing, inter alia, Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002)). However, the Second Circuit has expressly
stated that “nothing in the language of Section 241 suggests that Congress intended to create a private right of action under that
provision.” Vidurek v. Koskinen, 789 F. App'x 889, 894 (2d Cir. 2019) (citing Cent. Bank of Denver, N.A. v. First Interstate Bank
of Denver, N.A., 511 U.S. 164, 190 (1994)). Noel's claim of conspiracy against his rights under 18 U.S.C. § 241 must therefore
be dismissed with prejudice as indisputably meritless.
Fourth, Fifth, Fourteenth Amendment; Theft; Negligence; and Failure to Train
*3 Next, Noel appears to maintain that he was not subject to traffic laws or to a traffic stop by the Brighton police because the
2005 Chevy Cavalier that he was driving was a “Personal Use Vehicle” and not a “Motor Vehicle” under New York law. Because
his traffic stop was allegedly unwarranted, Noel seems to believe that everything that occurred thereafter – including the issuance
of the traffic citations, placing him in handcuffs, and the towing of his motor vehicle to an impound lot – constituted unreasonable
search and seizure, illegal taking, false arrest, violation of due process, theft, and negligence. Further, Noel maintains that
because the police officers on the scene did not recognize the difference between a “Personal Use Vehicle” and a “Motor
Vehicle,” the town is liable for failure to properly train its police officers. All of these claims are indisputably meritless.
The statutes under which Noel alleges he was cited for an infraction provide that “no person shall operate or drive a motor vehicle
upon a public highway” unless he is duly licensed (NYVAT § 509), has not had his license suspended or revoked (NYVAT §
511), has registered his vehicle (NYVAT § 319 and § 401), and has the appropriate insurance (NYVAT § 1180). Noel appears to
believe that because he “was traveling on the public highway for recreation purposes,” he was not operating a “motor vehicle”
and is not subject to any of the laws or requirements for which he was cited.
There is nothing in New York Vehicle and Traffic Law that would support Noel's theory. NYVAT § 125 defines a “motor vehicle”
as a “vehicle operated or driven upon a public highway which is propelled by any power other than muscular power ....” NYVAT
§ 501-a(7) defines “personal use vehicle” as “[a] vehicle constructed or altered to be used for recreational purposes which is
exclusively used to transport family members and/or personal possessions of such family members ....” There is no indication
in the law that a “personal use vehicle” might not also qualify under certain circumstances as a “motor vehicle,” and vice versa.
See, e.g., People v. Canute, 8 A.D.3d 1125, 1126 (N.Y. App. Div. 2004) (finding a lawn tractor operated on a public highway
in the early morning hours to transport the driver from a bar to his home “fits within the broad definition of a motor vehicle set
forth in NYVAT § 125); Reilley v. Dep't of Motor Vehicles of the State of New York, 240 A.D.2d 296, 296 (N.Y. App. Div. 1997)
(finding a lightweight portable motorized scooter “fits squarely within the definition of ‘motor vehicle’ under” NYVAT § 125).
Consequently, it is clear that as the operator of a 2005 Chevy Cavalier on a public highway, Noel was rightly subject to the New
York traffic laws for “motor vehicles” and the traffic stop by the Brighton police. His claims predicated upon the legal theory that
he was not subject to either the traffic laws or the traffic stop are therefore all meritless, and must be dismissed with prejudice. 1
Excessive Force
Finally, Noel fails to state a plausible claim for “excessive force.” There are two prongs to Noel's excessive force claim. First,
he maintains that as the operator of a “personal use vehicle” he was not subject to the traffic laws, and hence that the traffic
stop initiated by the Brighton police was per se an excessive use of force because absolutely no degree of coercion was justified
against him. As explained in the previous section, this prong of Noel's excessive force claim fails due to the baseless “personal
use vehicle” legal theory upon which it rests.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 85 of 97

Noel v. Clouston, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
*4 Second, Noel maintains that the Brighton Police Department's use of handcuffs during the traffic stop, “caus[ed] pain to
[his] shoulder and wrist.” Compl. at 18. He alleges that based on this use of handcuffs, he has “on-going issues with [his]
shoulders requiring therapy.” Compl. at 18.
In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court held “that a government officer may not intrude on a person's
Fourth Amendment rights by employing a degree of force beyond that which is warranted by the objective circumstances of an
arrest.” Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019) (discussing Graham, 490 U.S. at 394–397). The Second
Circuit has endorsed the consideration of at least three evidentiary factors helpful to a district court in making the determination
as to whether the use of handcuffs on an arrestee violates the Fourth Amendment's reasonableness standard: “(1) the [arrestee's]
handcuffs were unreasonably tight; (2) the defendants ignored the arrestee's pleas that the handcuffs were too tight; and (3) the
degree of injury to the [arrestee's] wrists.” Cugini, 941 F.3d at 613 (quoting Esmont v. City of New York, 371 F. Supp.2d 202
(E.D.N.Y. 2005)). With respect to the second evidentiary factor, “[t]he question is more broadly whether an officer reasonably
should have known during handcuffing that his use of force was excessive.” Cugini, 941 F.3d at 613.
Here, although Noel alleges that he was injured by the tight handcuffs, his allegations are insufficient to state a plausible claim.
The generalized allegations of “pain” in his shoulders and wrist while in handcuffs, and “ongoing issues” with his shoulder, are
not sufficient to demonstrate a cognizable injury. See, e.g., Christian v. Kelly, No. 14CV07416PKCSMG, 2016 WL 3162056, at
*3 (E.D.N.Y. June 3, 2016) (collecting cases to support the finding that “[t]hese minor injuries are routinely rejected by courts
in this Circuit as insufficient to support a claim of excessive force.”). In addition, Noel fails to provide any details regarding
the other evidentiary factors recognized by the Second Circuit, such as the specific circumstances in which the handcuffs were
used, whether he informed the officers engaged with him that the handcuffs were too tight, or whether the officers otherwise
“should have known” the handcuffs were too tight.
Accordingly, Noel's generalized excessive force claim based on his clearly meritless legal theory that his 2005 Chevrolet
Cavalier was not a “motor vehicle” subject to the traffic laws is dismissed without leave to replead. Noel's excessive force claim
based on the use of handcuffs is dismissed with leave to replead, provided that Noel submits his amended complaint within
thirty (30) days from the date of this order.
CONCLUSION
The Court has construed Plaintiff Negrito Paul Noel's papers liberally, to present the strongest arguments that they suggest.
Further, the Court recognizes that even where a pro se plaintiff's pleading fails to state a claim and therefore warrants dismissal
under 28 U.S.C. § 1915(e)(2)(B)(ii), the Court should ordinarily allow at least one opportunity to amend. See Gomez v. USAA
Fed. Sav. Bank, 171 F.3d 794, 795–96 (2d Cir. 1999) (“[A] pro se plaintiff who is proceeding in forma pauperis should be
afforded the same opportunity as a pro se fee-paid plaintiff to amend his complaint prior to its dismissal for failure to state
a claim ....”) (citation omitted). However, leave to amend is not required where such amendment would be futile. See Hill v.
Curcione, 657 F.3d 116, 123–24 (2d Cir. 2011). The Court finds that amendment of most of the claims in Noel's complaint
would be futile, as they are based on an indisputably meritless legal theory.
*5 Therefore, it is hereby
ORDERED that Plaintiff Negrito Paul Noel's application [ECF No. 2] for leave to proceed in forma pauperis in this action is
granted, and the Clerk of Court shall file Noel's papers without pre-payment of fees; and it is further
ORDERED that Noel's claim of excessive force based on the use of handcuffs is dismissed with leave to replead; and it is further
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 86 of 97

Noel v. Clouston, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
ORDERED that if Plaintiff fails to file an amended complaint regarding the excessive force claim based on the use of handcuffs
against the relevant Defendants within thirty (30) days from the date of this order, the Clerk of Court shall terminate this action
without further order of this Court; and it is further
ORDERED that all of Plaintiff's other claims are dismissed with prejudice without leave to replead pursuant to 28 U.S.C. §
1915(e)(2)(B) for frivolousness and failure to state a claim upon which relief may be granted.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good
faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962).
Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for
the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 22945380
Footnotes
1 To the extent that Noel's negligence claim was also intended to incorporate the injuries he allegedly sustained when
the police officers on the scene placed him in handcuffs, the Court notes that “ ‘[w]hen a plaintiff brings [claims of]
excessive force ... which are premised upon a defendant's allegedly intentional conduct, a negligence claim with respect
to the same conduct will not lie.’ ” Forbes v. City of Rochester, F. Supp.3d 1, 7 (W.D.N.Y. April 6, 2020) (quoting
Naccarato v. Scarselli, 124 F. Supp.2d 36, 45 (N.D.N.Y. 2000)). Noel's claim of excessive force based on the use of
handcuffs is discussed below.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 87 of 97

Noel v. Laibach, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Blue-Striped Flag
Appeal Filed by Noel v. Stedman, 2nd Cir., November 10, 2025
2025 WL 3003717
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Negrito Paul NOEL, Plaintiff,
v.
Trooper Kevin D. LAIBACH, et al., Defendants.
Negrito Paul Noel and Donna Jenkins, Plaintiffs,
v.
Trooper P.D. Steadman, et al., Defendants.
24-CV-6603-CJS, 24-CV-6623-CJS
|
Signed October 27, 2025
Attorneys and Law Firms
Negrito Paul Noel, Rochester, NY, Pro Se in No. 24-CV-6603.
Paul Noel, Rochester, NY, Pro Se in No. 24-CV-6623.
Donna Jenkins, Rochester, NY, Pro Se in No. 24-CV-6623.
ORDER
CHARLES J. SIRAGUSA, UNITED STATES DISTRICT JUDGE
*1 The Court entered an Order under 28 U.S.C. § 1915(e)(2)(B)(i) dismissing the complaints in these two actions on the
basis that they were baseless and frivolous. 24-CV-6603, ECF No. 8; 24-CV-6623, ECF No. 7. 1 The plaintiffs had alleged
that traffic stops, on July 16, 2024 (24-CV-6603), of Negrito Paul Noel (“Noel”), 2 and on July 24, 2024 (24-CV-6623), of
Noel and Donna Jenkins (“Jenkins”), were unlawful because Noel's vehicle was a “personal use vehicle, not for hire or used
for commercial purposes,” and thus not subject to various provisions of the New York State Vehicle and Traffic Law (“VTL”)
related to insurance and registration requirements. 24-CV-6603, ECF Nos. 1, 8; 24-CV-6623, ECF Nos. 1, 7. The Court found
that the complaints were frivolous because the claims asserted in both complaints were based on the same baseless theories
the Court previously had rejected several times—viz., that Noel's vehicles are “personal use vehicles” and thus not subject to
various sections of the VTL mandating registration and liability insurance. 24-CV-6603, ECF No. 8 at 1, 6-7; 24-CV-6623,
ECF No. 7 at 1, 6-7 (both referring to several actions Noel had filed in the past based on the same legal theories).
The plaintiffs have filed motions for reconsideration on the basis that the Court overlooked several issues raised in their
complaints, including, inter alia, that during the traffic stop at issue in 24-CV-6603, defendant New York State Trooper Laibach
(“Laibach”) applied “excessively tight handcuffs” to Noel, and another New York State Trooper at the scene of the traffic stop,
“Trooper 2, only loosened one of the cuffs; Noel was not permitted to contact his attorney at the scene of the traffic stop or at
the New York State Police barracks (“barracks”); Noel remained in tight handcuffs and was shackled to a bench at the barracks
for several hours and later transferred to the Monroe County Jail (“MCJ”) without bail; and New York State Trooper Steadman
(“Steadman”) conducted an unreasonable search and seizure at the time of the traffic stop. See 24-CV-6603, ECF No. 10 at
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 88 of 97

Noel v. Laibach, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
5-6, 12-13; 24-CV-6623, ECF No. 9 at 5-6, 12-13. 3 The motions also raise several other claims or issues re-alleging the same
baseless theories that Court rejected previously, 24-CV-6603, ECF No. 10; 24-CV-6623, ECF No. 9, or ones not raised in the
complaints, id., ECF No. 10 at 5; 24-CV-6623, ECF No. 9 at 5.
To the extent the Court overlooked Noel's claims in 24-CV-6603 that (1) Laibach and Trooper 2 applied handcuffs too tightly,
(2) Noel could not contact his attorney, (3) Noel was transported to the barracks following his arrest and shackled to a bench for
six hours and later was transported to MCJ from the barracks without justification and without bail, and (4) Noel was excessively
detained without arraignment in violation of N.Y. Crim. Proc. L., § 140.20, the motion for reconsideration, 24-CV-6603, ECF
No. 10, is granted and the Court screens those claims below. See 28 U.S.C. § 1915(e)(2)(B). To the extent that Noel and Jenkins
alleged an unlawful search and seizure during the traffic stop on July 24, 2024, 24-CV-6623, ECF No. 1 at 2, 5; ECF No. 9
at 6, the motion for reconsideration is granted and the Court screens that claim below. However, to the extent that all other
issues raised in the motions relate to, and reargue, Noel's same baseless theories under the VTL or raise claims not raised in the
complaints, the motions are denied. See, e.g., Noel v. Clauston, 21-CV-6559 (CJS), 2022 WL 22945380, at *4 (W.D.N.Y. June
28, 2022) (dismissing as meritless Noel's claims in a previous action “predicated on the legal theory that he was not subject
to either the traffic laws or the traffic stop”).
I. RECONSIDERATION
*2 Because the motions for reconsideration were filed (June 17, 2025) within 28 days of the date the judgments dismissing
the complaints were filed (May 21, 2025), they are construed as motions under Federal Rule of Civil Procedure 59(e), which
authorizes a party to file a motion to alter or amend judgment no later than 28 days after the entry of judgment.
It is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the case under new
theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple[.]’Rather, the
standard for granting a Rule 59 motion for reconsideration is strict, and reconsideration will generally be
denied unless the moving party can point to controlling decisions or data that the court overlooked.
Analytical Survs., Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012) (citation modified).
The Court recognizes that it overlooked certain claims Noel and Jenkins had pleaded in the complaints that were not based
solely on the baseless theories Noel had advanced several times in the past that the Court had rejected. Cf. City of New York
v. Milhelm Attea & Bros., Inc. et al., 591 F. Supp. 2d 234, 236 (E.D.N.Y. 2008) (finding that a motion for reconsideration is
not “ ‘an occasion for repeating old arguments previously rejected’ ”) (quoting Associated Press v. United States Dep't of Def.,
395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005)). Those claims, liberally construed, are: (1) a Fourth Amendment excessive force claim
and state law assault and battery claim against Laibach and Trooper 2 based on tight handcuffs, 24-CV-6603, ECF No. 1 at 4-6
(Claim Two, Ten, and Eleven); (2) a denial of counsel claim when he was not allowed to call his counsel during his six hour
detention against Laibach, Sergeant Nanry (“Nanry”), six unnamed New York State Troopers (“Six Unnamed Troopers”), and
Lieutenant Reed (“Reed”), id. at 3, 6 (Claim Fourteen); 4 (3) a failure to intervene and false imprisonment claim against Nanry,
Six Unnamed Troopers, and Reed when Noel was shackled at the barracks for over six hours after being transported there from
the scene of the traffic stop and later transferred to MCJ without justification or without bail, id. at 3, 5-6 (Claim Three, Six, and
Twelve); (4) a delayed arraignment claim, id. at 2 (Claim Twelve), and (6) an unreasonable search and seizure claim against
Steadman, 24-CV-6623, ECF No. 1 at 2, 5 (Claim One). Thus, to the extent the Court did not address these claims in the orders
now under reconsideration, the motions are granted but the motions are denied in all other respects.
II. SCREENING
Noel was granted permission to proceed in forma pauperis and therefore the Court proceeded to screen the complaints. Because
the Court overlooked the claims set forth above, the Court proceeds to screen those claims now. Section 1915 “provide[s] an
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 89 of 97

Noel v. Laibach, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
efficient means by which a court can screen for and dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d
Cir. 2007) (citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). Section 1915(e)(2)(B) requires sua sponte dismissal of
claims that are frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief against a
defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)–(iii). Generally, the court will afford a pro se plaintiff
an opportunity to amend or to be heard prior to dismissal “unless the court can rule out any possibility, however unlikely it might
be, that an amended complaint would succeed in stating a claim.” Abbas, 480 F.3d at 639 (quoting Gomez v. USAA Fed. Savings
Bank, 171 F.3d 794, 796 (2d Cir.1999) (per curiam)). But leave to amend pleadings may be denied when any amendment would
be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
*3 In evaluating a complaint, the court must accept all factual allegations as true and must draw all inferences in the plaintiff's
favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999).
“Specific facts are not necessary,” and the plaintiff “need only ‘give the defendant fair notice of what the...claim is and the
grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)); see also Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008) (“[E]ven after Twombly, dismissal of a pro se claim
as insufficiently pleaded is appropriate only in the most unsustainable of cases.”). Although “a court is obliged to construe [pro
se] pleadings liberally, particularly when they allege civil rights violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004), even pleadings submitted pro se must meet the notice requirements of Rule 8 of the Federal Rules of Civil Procedure.
Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. 2004).
II. NOEL'S CLAIMS (24-CV-6603)
A. Tight handcuffs
1. Fourth Amendment: Excessive Force
Following the traffic stop on July 16, 2024, Noel alleges that Laibach issued 10 tickets and applied handcuffs to Noel. 24-
CV-6603, ECF No. 1 at 5-6. Noel alleges that the handcuffs were “unnecessarily tight and painful,” id. at 6, and unnecessary
because the traffic stop was unlawful under the VTL. ECF No. 1 at 5, 10. Trooper 2 later loosened the right cuff, but despite
Noel's complaints that the cuffs were too tight, “refused to properly adjust the left one, leaving deep marks on [Noel's] wrists.”
Id. at 6. Noel was then transported to the barracks “enduring further discomfort during the ride.” Id. During his entire time at
the barracks, he complained that the handcuffs were too tight and Emergency Medical Services (“EMS”) had to be called. Id.
He suffered “bruising to the wrist.” Id. Noel alleges this was a violation of the Fourth Amendment. Id. at 5 (Claim Two).
The Supreme Court has held that where a claim for excessive force “arises in the context of an arrest or investigatory stop of a
free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment.” Graham v. Connor, 490
U.S. 386, 394 (1989). An arrestee's excessive force claim “is therefore analyzed under the Fourth Amendment's ‘reasonableness’
standard, rather than under the subjective ‘substantive due process’ approach.” Cugini v. City of New York, 941 F.3d 604, 612
(2d Cir. 2019) (quoting Graham, 490 U.S. at 396-97).
In Cugini, the Second Circuit applied the Fourth Amendment's reasonable standard to a claim by a person arrested and detained
but not yet arraigned. 941 F.3d at 612. The plaintiff alleged that the arresting officer used excessive force when handcuffing her,
thereby causing serious injury to her wrist. Id. The court first addressed the three-factor evidentiary test set in Esmont v. City
of New York, 371 F. Supp. 3d 202, 215 (E.D.N.Y. 2005), which had been employed by other district courts in the Circuit “to
determine whether a plaintiff had sufficient alleged a claim of excessive force in the process of handcuffing.” Cugini, 941 F.3d at
612-13. The three evidentiary factors are: that “(1) the [arrestee's] handcuffs were unreasonably tight; (2) the defendants ignored
the arrestee's pleas that the handcuffs were too tight; and (3) the degree of injury to the [arrestee's] wrists.” Id. at 612 (alterations
in original) (quoting Esmont, 371 F. Supp. 3d at 215). While acknowledging that these evidentiary factors “may, indeed prove
useful to a district court in assessing the soundness of a handcuffing-based excessive force claim,” the Second Circuit stated that
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 90 of 97

Noel v. Laibach, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
*4 [t]he “test of reasonableness under the Fourth Amendment,”...“is not capable of precise definition or mechanical
application [and that] [a] court's reasonableness analysis is not limited to a factual checklist; it must instead be guided by a
“careful balanc[e]” between the “nature and quality of the intrusion” and the “countervailing government interests at stake”
under the circumstances.
Cugini, 941 F.3d at 613 (quoting Graham, 490 U.S. at 396); cf. Horace v. Gibbs, 802 F. App'x 11 (2d Cir. Feb. 7 2020) (summary
order) (reversing district court's grant of summary judgment to defendants on plaintiff's handcuffing-based excessive force
claim because district court “treat[ed] one factor—the absence of serious injury—as dispositive, without considering other
factors such as the reasonableness of tight handcuffs under the circumstances, and whether the defendants ignored the plaintiff's
complaints.”). The Cugini court continued that a plaintiff
need not always establish that she alerted an officer to the fact that her handcuffs were too tight or causing
pain. The question is more broadly whether an officer reasonably should have known during handcuffing
that his use of force was excessive. A plaintiff satisfies this requirement if either the unreasonableness
of the force used was apparent under the circumstances, or the plaintiff signaled her distress, verbally or
otherwise, such that a reasonable officer would have been aware of her pain, or both.
Id. (citing cases).
The Second Circuit thus concluded that “where an officer's use of force in handcuffing is plainly unreasonable under the
circumstances or where a plaintiff manifests clear signs of her distress—verbally or otherwise—a fact finder may decide that
the officer reasonably should have known that his use of force was excessive for purposes of establishing a Fourth Amendment
violation.” Cugini, 941 F.3d at 613.
At this stage of the litigation, see 28 U.S.C. § 1915(e)(2)(B) (screening complaint), and mindful of the requirement to liberally
construe pro se pleadings, the Court finds that Noel's Fourth Amendment handcuffing-based excessive force claim may proceed
to service against Laibach and the unidentified Trooper who was at the scene of the traffic stop (Trooper 2). 5 Noel alleges that
the handcuffs were “unnecessarily tight and painful,” ECF No. 1 at 6, and that despite his pleas that the handcuffs were too
tight, Trooper 2 loosened only the right handcuff, but “refused to properly adjust the left one, leaving deep marks on [Noel's]
wrists.” Id. at 4, 6. The cuffing continued while he was transported to the barracks, and while he was shackled to a bench for
six hours. Id. Noel alleges that EMS had to be called because the handcuffs were too tight. Id. at 6. Based on these allegations
—assumed true for purposes of this review—Noel plausibly has alleged that Laibach and Trooper 2 “reasonably should have
known during handcuffing that [their] use of force was excessive.” Cugini, 941 F.3d at 613; cf. Noel v. Clauston, 2022 WL
22945380, at *4 (dismissing with leave to amend a prior Noel excessive force claim because Noel's “generalized allegations
of ‘pain’ in his shoulders and wrist while in handcuffs, and ‘ongoing’ issues’ with his shoulders,’ [were] not sufficient to
demonstrate a cognizable injury.” Noel also failed to “provide any details regarding the other evidentiary factors recognized by
the Second Circuit such as the specific circumstances in which the handcuffs were used, whether he informed the officers...that
the handcuffs were too tight, or whether the officers otherwise ‘should have known’ the handcuffs were too tight.”). 6
2. Assault and Battery
*5 Noel also alleges that the tight handcuffing rose to the level of a state common law tort claim of assault and battery. 7 24-
CV-6603, ECF No. 1 at 5 (Claim Ten). “ ‘[E]xcept for § 1983's requirement that the tort be committed under color of state
law, the essential elements of [excessive force and state law assault and battery claims are] substantially identical.’ ” Humphrey
v. Landers, 344 F. App'x 686, 688 (2d Cir. 2009) (summary order) (alteration in original) (quoting Posr v. Doherty, 944 F.2d
91, 94-95 (2d Cir. 1991)); see also Harvey v. Corneal, 24-CV-7380 (JAV), 2025 WL 2345879, at *5 (S.D.N.Y. Aug. 13, 2025)
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 91 of 97

Noel v. Laibach, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 5
(“Courts interpreting New York state law of assault and battery as it applies to police officers have stated that the essential
elements of § 1983 excessive force and state law assault and battery claims are substantially identical” (citation modified)).
“A plaintiff pleading assault and battery based on tight handcuffing must show ‘that the officer was made reasonably aware
that the force used was excessive.’ ” Harvey, 2025 WL 2345879, at *5 (quoting Cugini, 941 F.3d at 608). Based on the Fourth
Amendment discussion above, the Court finds that the state law assault and battery claim may proceed against Laibach and
Trooper 2, as well.
B. Denial of Counsel
Noel alleges that he was prevented from calling his attorney at the scene of the traffic stop and again during his detention at the
barracks. ECF No. 1 at 3, 6 (Claim Fourteen). The Court construes this allegation as a violation of Noel's Sixth Amendment right
to counsel. “[I]t has been firmly established that a person's Sixth...Amendment ...right to counsel attaches only at or after the
time that adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. 682, 688 (1972); see also
Texas v. Cobb, 532 U.S. 162, 167-68 (2001) (reaffirming that a criminal defendant's right to counsel arises only once prosecution
is commenced “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment” (citation
modified)). “However, when the underlying charges against a plaintiff are state law charges—as in this case—the Court will look
to state law to determine when the adversarial judicial proceedings were initiated.” Garnes v. City of New York, 22-cv-01769
(ER), 2025 WL 605466, at *10 (S.D.N.Y. Feb. 25, 2025) (citing Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 349 (2d
Cir. 1998)). “New York has held that a criminal proceeding, and with it the right to counsel, is initiated by the filing of an
accusatory instrument.” Deshawn, 156 F.3d at 349 (citing People v. Blake, 35 N.Y.2d 331, 338, 361 N.Y.S.2d 881, 890, 320
N.E.2d 625, 631 (1974)).
Here, the Court acknowledges there are no specific allegations regarding when Laibach filed the accusatory instrument charging
Noel with obstruction of governmental administration and resisting arrest, or, in other words, whether a prosecution was
commenced during the time he was detained at the barracks. 8 See People v. Letterio, 16 N.Y.2d 307, 32, 266 N.Y.S.2d 368, 213
N.E.2d 670 (1965) (holding that Sixth Amendment right to counsel does not attach to a petty offense, like a traffic infraction); see
also Jackson v. Dillon, 518 F. Supp. 618, 621 (E.D.N.Y.1981) (“Since the events at the station house took place while plaintiff
was in custody but well before judicial proceedings had been initiated, plaintiff's Sixth Amendment right to counsel is not
implicated in this case.”). However, liberally construing this claim, as it must, the Court finds that based on the allegations that
Laibach filed charges against Noel for offenses other than the traffic violations—resisting arrest and obstruction of governmental
administration—Noel's right to counsel may have attached at some point during the six hours he was detained at the barracks
and not permitted to contact counsel. LoPizzo v. LeFevre, 863 F. Supp. 96, 100 n.2 (E.D.N.Y. 1994) (“In New York, the filing
of the accusatory instrument...commences a state criminal action.”) (citing N.Y. Crim. Proc. L. § 100.05).
*6 Accordingly, this claim may proceed to service against Laibach, Hanry, Six Unnamed Troopers, and Reed. 9 Cf. Noel v.
Warren, 19-CV-6271-CJS, 2019 WL 13422447, at 3 (W.D.N.Y. May 3, 2019) (dismissing a previous right to counsel claim
made by Noel because the right to counsel had not attached when Noel was pulled out of vehicle at traffic stop).
C. Detention at the Barracks
Noel alleges that he was shackled to a bench at the barracks for over six hours after being transported there from the scene
of the traffic stop and later transferred to MCJ without justification or without bail, 24-CV-6603, ECF No. 1 at 3, 5-6 (Claim
Three, Six, and Twelve); see id., ECF No. 10 at 5. While at the barracks, he claims that Sergeant Nanry, Reed, and Six Unnamed
Troopers failed to intervene, and EMS had to be called to address his condition caused by the tight handcuffs. Id., ECF No. at
5, 6. Reed arrived at the barracks and decided that Noel would not be granted bail and would be transferred to MCJ, “despite
no valid charges had been brought against [him], nor had [he] been served with any accusatory instrument so there was no
personal jurisdiction.” Id. The exact nature of the claims asserted is not at all clear to the Court but construing them liberally,
these allegations are construed as a failure to intervene claim and a false imprisonment claim against Nanry, Six Unnamed
Troopers, and Reed.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 92 of 97

Noel v. Laibach, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 6
1. Failure to intervene: excessive force
This claim appears to be based on the tight handcuffs applied initially by Laibach at the scene of the traffic stop, which apparently
remained on Noel's wrist throughout the six hours at the barracks where he was cuffed to a leather belt and shackled to a bench
by his foot. He alleges EMS had to be called. Id. at 5, 6. The tight handcuffing claim is proceeding against Laibach and Trooper
2, but Noel claims here that law enforcement officers at the barracks, including Nanry, Reed and Six Unnamed Troopers failed
to intervene when they ignored his continual complaints about the tightness of the handcuffs. Id. at 5 (Claims Three and Twelve)
“A police officer is under a duty to intercede and prevent fellow officers from subjecting a citizen to excessive force, and may be
held liable for his failure to do so if he observes the use of force and has sufficient time to act to prevent it.” Figueroa v. Mazza,
825 F.3d 89, 106 (2d Cir. 2016); see also Riccuiti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (“A police officer
has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by
other officers.” (citation modified)). “Liability may attach only when (1) the officer had a realistic opportunity to intervene and
prevent the harm; (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being
violated; and (3) the officer does not take reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512
(S.D.N.Y. 2008) (citing O'Neill v. Krzeminski, 839 F.2d 9, 11–12 (2d Cir.1988)).
Noel's allegations are not at all clear regarding who was at the barracks and witnessed the tight handcuffs, who heard his
complaints, and what the complaints actually concerned. He alleges that Nanry, Reed, and the Six Unnamed Troopers “observed
[him] shackled by the ankle like a slave for over 6 hours, based on illegal traffic infractions and invalid misdemeanors, and did
nothing to prevent it.” 24-CV-6603, ECF No. 1 at 5, 6; see also id., ECF No. 10 at 6 (alleging in the motion for reconsideration
that “Plaintiff was transported to the [barracks], where [he] was shackled to a bench...for approximately six hours[;]” he spoke
to Reed, and “[despite ongoing physical pain in his wrists, shoulders, and back, [his] requests for medical attention were initially
ignored [and] EMS was eventually called due to [his] condition”).
*7 While the allegations are hazy, a court should not dismiss a claim sua sponte unless “the complaint lacks an arguable basis in
law or fact. Where a colorable claim is made out, dismissal is improper prior to service of process and the defendants’ answer.”
Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam) (citation modified). Here, Noel alleges that he was transported
to the barracks while cuffed, he was cuffed to a leather belt and shackled by his ankle to a bench for six hours, complaining
continually about the pain and discomfort, and EMS had to be called because of the pain and discomfort. 24-CV-66-3, ECF
No. 1 at 5, 6. Based on these allegations, it appears that Nanry, Reed, and the Six Unnamed Troopers were at the barracks with
Noel and were aware of the tight handcuffs but did not take any steps to ameliorate the alleged excessive force. Thus, at this
stage in the litigation, the failure to intervene claim related to Noel's claim of excessive force against Nanry, Reed and the Six
Unnamed Troopers, in and when identified, may proceed to service.
2. False imprisonment
As with the failure to intervene claim, the true nature of this claim, too, is unclear. Noel alleges that he was detained at the
barracks for six hours and at some point “after a brief conversation [with several troopers at the barracks], Reed decided that
[Noel] would not be granted bail and would be transferred to [MCJ], despite the fact that no valid charges had been brought
against [him], nor had [he] been served with any accusatory instruments so there was no personal jurisdiction.” 24-CV-6603,
ECF No. 1 at 6. He asserts that Nanry, Reed, and the Six Unnamed Troopers falsely imprisoned him when they did nothing to
prevent his six-hour detention at the barracks “without bail or release under [New York Criminal Procedure Law §] 140.20(4).”
Id. at 5 (Claim Twelve).
The Court construes this claim as one of false imprisonment because Noel alleges that he was detained for six hours based
on his oft-rejected claims that the traffic stop infractions were unlawful because New York's VTL insurance and registration
requirements did not apply to him or his vehicle and that the three other misdemeanor charges stemming from the traffic stop
were invalid. Id. 10
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 93 of 97

Noel v. Laibach, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 7
“Under New York law, the elements of a false imprisonment claim are: ‘(1) the defendant intended to confine [the plaintiff],
(2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement
was not otherwise privileged.’ ” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (alteration in original) (quoting
Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S. 2d 87, 93, 335 N.E.2d 310 (1975)); see also Hygh v. Jacobs,
961 F.2d 359, 366 (2d Cir. 1992) (“The elements of a false arrest claim under § 1983 are substantially the same as elements of
a false claim under New York law.” (citation modified)); Dickerson v. Monroe Cnty. Sheriff's Dep't, 114 F. Supp. 2d 187, 191
(W.D.N.Y. 2000) (“Claims for false arrest and false imprisonment are essentially the same causes of action.” (citing Weyant v.
Okst,101 F.3d 845, 853 (2d Cir.1996))). “The existence of probable cause to arrest constitutes justification and is a complete
defense to an action for false arrest, whether that action is brought under state law or under § 1983.” Weyant, 101 F.3d at 852
(citation modified). Police officers have probable cause to arrest when they possess “knowledge of, or reasonably trustworthy
information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an
offense has been or is being committed by the person to be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)
(citing Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979)).
*8 Noel's false imprisonment claim is based entirely on his oft rejected and baseless claims that he is not subject to various
provisions of New York's VTL because his vehicle was a “personal use vehicle, not for hire or used for commercial purposes.”
See 24-CV-6603, ECF No. 8 at 1, 6-7. Noel thus cannot establish that the traffic stop and later detention was not supported by
probable cause. Nor has Noel alleged plausibly that his obstruction or resisting arrest charges following the stop were not based
on probable cause. He alleges only that the obstruction or resisting arrest charges were “invalid” because there was no basis
for the traffic stop. ECF No. 1 at 4, 6. Thus, Noel's false imprisonment claim is dismissed without leave to amend. Cuoco, 222
F.3d at 112 (finding that repleading would be futile).
D. Delayed Arraignment
Noel alleges that he was “imprisoned for over six hours without bail 11 or release under [N.Y. Crim. Proc. L. §] 140.20(4).” 24-
CV-6603, ECF No. at 5; ECF No. 10 at 13, ¶ III.E. To the extent Noel alleges that he was not timely arraigned or released under
CPL § 140.20(1) or (4), this claim must be dismissed because § 140.20 does not create a private right of action. See Tortora
v. City of New York, 804 F. App'x 35, 38 (2d Cir. 2020) (summary order). Construed as a claim of excessive pre-arraignment
detention, it too must be dismissed because the alleged delay was not excessive. See id. at 37 (“When a warrantless arrest is
made, a judicial determination of probable cause must be made promptly or with 48 hours.” (citation modified)). Noel alleges
that he was detained at the barracks only for six hours without bail or release. He thus fails to state a claim of excessive detention,
and the Court finds that leave to amend would be futile.
E. Unlawful Search and Seizure
Noel and Jenkins's complaint often alludes to a search and seizure in violation of the Fourth Amendment on July 24, 2024. 24-
CV-6623, ECF No. 1 at 2, 4, 5. However, the search and seizure allegations all relate to the traffic stop which they claim was
invalid because Noel was driving a personal use vehicle and thus not subject to various provisions on the VTL. Id. at 5 (“Trooper
P.D. Steadman...personally deprived the Plaintiffs of their liberty...when he initiated a traffic stop based on alleged violations of
vehicle and traffic laws related to insurance suspension and registration of a motor vehicle....It was unreasonable for Steadman
to conduct the search and seizure under these circumstances. A reasonable officer, trained in vehicle and traffic law, would have
recognized from the registration that Noel's vehicle was not a commercial vehicle and that insurance was optional for this type
of vehicle....Therefore, Steadman's actions constituted an unlawful search and seizure....”)
There are no allegations whatsoever that any search of the vehicle or of Plaintiffs’ persons occurred in connection with the
traffic stop on July 24, 2024. Any claims of an unreasonable search and seizure therefore are subsumed within the claim that
the traffic stop itself was invalid; a claim that the Court repeatedly has rejected as baseless. 24-CV-6623, ECF No. 7 at 5-7.
Thus, any claim of an unlawful search and seizure on July 24, 2024, fails to state a claim upon which relief can be granted
and leave to amend is denied as futile.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 94 of 97

Noel v. Laibach, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 8
F. Supervisory Liability
Noel's complaint in 24-CV-6603 asserts that Nanry, Reed, and Superintendent James failed to supervise or train Laibach and
the Six Unnamed Troopers in VTL § 125, which he claims excludes his vehicle from the definition of a motor vehicle. 24-
CV-6603, ECF No. 1 at 5. The complaint in 24-CV-6623 alleges that James failed to supervise or train Steadman in relation
to VTL § 125. 24-CV-6623, ECF No. 1 at 5. These claims must be dismissed. First, any claims that these defendants failed to
supervise their subordinates relating to the traffic stop and detention at issue must be dismissed because there are no claims of
vicarious or supervisory liability under section 1983, see Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). A defendant
can be liable only under § 1983 only if he or she violated the plaintiff's rights “through the official's own individual actions.”
Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Second, the claims against the supervisory officials are premised solely
on the baseless claim that Noel should not have been stopped for a violation VTL § 125.
*9 Accordingly, any claims against Nanry, Reed, and James alleging that they failed to supervise or train their subordinates is
dismissed without leave to amend because the Court finds that amendment would be futile.
CONCLUSION
For the reasons set forth above, Plaintiffs’ motions for reconsideration are granted in part and denied in part. Noel's claims in the
complaint, 24-CV-6603, ECF No. 1, alleging excessive force and assault and battery may proceed to service against Laibach
and Trooper 2; his claim alleging failure to intervene at the barracks against Nanry, Reed, and Six Unnamed Troopers may
proceed to service; and his claim alleging denial of right to counsel against Laibach, Nanry, Reed, and Six Unnamed Troopers
may proceed to service. All other claims that the Court has reconsidered herein—false imprisonment, delayed arraignment,
unreasonable search and seizure, and supervisory liability—remain dismissed without leave to amend. Thus, the only claims
proceeding to service are Noel's Fourth Amendment excessive force and state law assault and battery claims against Laibach
and Trooper 2, his denial of counsel claim while Noel was detained for six hours at that barracks against Laibach, Nanry, Reed,
and Six Unnamed Troopers, and his failure to intervene claim at the barracks against Nanry, Reed, and Six Unnamed Troopers.
ORDER
IT IS HEREBY ORDERED that Plaintiffs’ motions for reconsideration, 24-CV-6603, ECF No. 10, and 24-CV-6623-CJS, ECF
No. 9, are granted in part and denied in part; and it is further
ORDERED that the Clerk of Court shall reopen 24-CV-6603; and it is further
ORDERED that the Clerk of Court shall amend the caption of 24-CV-6603 and add as a defendant “John Doe Trooper 2, an
Unnamed New York State Police Officer;” and it is further
ORDERED that Noel's claims in 24-CV-6603 alleging (1) excessive force and assault and battery against Laibach and Trooper
2, once identified (Claims Two and Ten), (2) failure to intervene at the barracks against Nanry, Reed, and Six Unnamed Troopers,
once identified (Claims Three and Twelve), and (3) denial of right to counsel at the barracks (Claim Fourteen) against Laibach,
Nanry, Reed, and Six Unnamed Troopers, once identified, may proceed to service; and it is further
ORDERED that all other claims pleaded in the complaints in 24-CV-6603, ECF No. 1, and 24-CV-6623, ECF No. 1, dismissed
previously, 24-CV-6603, ECF No. 8, and 24-CV-6623, ECF No. 7, remain dismissed; and it is further
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 95 of 97

Noel v. Laibach, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 9
ORDERED that the Clerk of Court is directed to cause the United States Marshals Service to serve the summons and complaint
in 24-CV-6603, ECF No. 1, this Order, and the Order entered May 20, 2025, id., ECF No. 8, on defendants Keith Laibach,
Sergeant Nanry, Lieutenant Reed and Six Unnamed Troopers and John Doe Trooper 2, once identified, without Noel's payment
therefor, unpaid fees to be recoverable if this action terminates by monetary award in Noel's favor; and it is further
ORDERED that that pursuant to Valentin v. Dinkins, 121 F.3d 72 (1997) (per curiam) the New York State Attorney General's
Office is requested to (1) ascertain the identities and last known service address of Six Unnamed Troopers who were present at
the New York State Police Barracks at 1155 Scottsville Rd, Rochester, New York on July 16, 2024, and John Doe Trooper 2 who
was present at the scene of the traffic stop at 115 South Avenue, Rochester, New York on July 16, 2024; and (2) ascertain the
full name, with correct spelling, and last known service address of Keith Laibach, Sergeant Hanry, and Lieutenant Reed, within
30 days of the date of this Order. The Attorney General's Office need not undertake to defend or indemnify these individuals
at this time. Rather, this Order merely provides a means by which Noel may name and properly serve these defendants, as
instructed by the Second Circuit in Valentin.
*10 The Attorney General's Office shall produce the information specified above by mail (Pro Se Litigation Unit, United
States District Court, Robert H. Jackson United States Courthouse, 2 Niagara Square, Buffalo, New York 14202) within 30
days of the date of this Order. Upon receipt of this information, the Clerk of the Court shall amend the caption of this action
to reflect the full names of these defendants. Should the Valentin response return personally identifiable information such as a
home address, that contact information shall be given to the Marshals Service solely for the purpose of effecting service; this
information will otherwise remain confidential; and it is further
ORDERED that the Clerk of the Court shall forward a copy of this Order, the Order entered May 20, 2025, 24-CV-6603, ECF
No. 8, and the complaint in 24-CV-6603, ECF No. 1, by email to Ted O'Brien, Assistant Attorney General in Charge, Rochester
Regional Office, at Ted.O'Brien@ag.ny.gov
SO ORDERED.
All Citations
Slip Copy, 2025 WL 3003717
Footnotes
1 These two cases were consolidated only for purposes of screening the complaints under 28 U.S.C. §§ 1915(e)(2)(B).
2 Noel has filed several actions in this Court under various names; Negrito Paul Noel, Paul Noel, and Paul A.E. Noel. See
Negrito v. Warren, 19-CV-6271-CJS (“Paul Noel formerly known as Paul A.E. Noel”); Noel V. Chisholm, 21-CV-6498-
CJS (“Negrito Paul Noel also known as Paul Noel Negrito also known as Paul A.E. Noel”).
3 The motions filed in both actions are identical.
4 While Noel alleges in his motion for reconsideration that Trooper 2 knocked the phone out of his hands at the scene of
the traffic stop, 24-CV-6603, ECF No. 10 at 5,6, this nowhere is alleged in the complaint, id., ECF No. 1.
5 Permitting this or any claim to proceed to service does not immunize it from a dismissal or summary judgment motion.
See Jones v. Sullivan, No. 9:19-CV-0025(BKS)(CFH), 2020 WL 5792989, at *5 (N.D.N.Y. Sept. 29, 2020) (“A court's
initial screening under § 1915(e) and/or § 1915A does not preclude a later dismissal under Fed. R. Civ. P. 12(b)(6).”).
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 96 of 97

Noel v. Laibach, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 10
6 For purposes of this screening and thus assuming Noel's allegations are true, the Court finds that Noel's allegations here
regarding his handcuffing-based excessive force claim are substantively different than those in Noel v. Clouston, 2022
WL 229453880.
7 See 28 U.S.C. § 1367(a) (“Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal
statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution.”)
8 In the motions for reconsideration Noel asserts that after he questioned the traffic stop, Laibach fabricated evidence
of an obstruction of governmental administration charge” and “fabricated” a resisting arrest charge. ECF No. 10 at 5.
He claims both charges were dismissed and that the district attorney “showed no interest to prosecute the charge.” Id.
Whether construed as a malicious prosecution claim or a fabrication of evidence claim, these claims were not raised
in the complaint and Noel cannot raise them for the first time on a motion for reconsideration. See, e.g., Kotze v. NBC
Universal Media, LLC, 25-CV-04703 (JAV); 2025 WL 2806755, at *2 (S.D.N.Y. Oct. 1, 2025 (“Th[e] Court is reluctant
to permit Plaintiffs to assert new causes of action in motions for reconsideration.); Wood v. Mutual Redevelopment
Houses, Inc., 14 Civ. 07535 (AT) (DCF), 2017 WL 11589600, at *10 (S.D.N.Y. Mar. 1, 2017) (“New legal theories and
causes of action are generally inappropriate in motions for reconsideration.”) (citing Analytical Surveys, Inc., 684 F.3d
at 52 (restating that a motion for reconsideration is not a “vehicle for...presenting the case under new theories”).
Noel alleged in the complaint only that he also was charged with resisting arrest and obstruction of governmental
administration. ECF No. 1 at 4. He did not assert a malicious prosecution or fabrication of evidence claim and the Court
will not consider these new claims on this motion. His claim was based solely on his assertion that the traffic stop itself
was unlawful and any tickets or charges following the stop were unlawful. Moreover, there are no factually supported
allegations that Laibach fabricated evidence or commenced criminal proceedings against Noel with malice and without
probable cause.
9 The Court presumes for purposes of screening only that Laibach was at the barracks when Noel requested counsel.
10 As noted above, any claims related to the validity of the stops based on Noel's claims he is not subject to various sections
of New York's VTL are baseless and will not be reconsidered.
11 The Court already has addressed any claim of false imprisonment Noel may be asserting. See supra at Section II.C.2
at 15-16.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-01167-MAD-MJK Document 12 Filed 12/23/25 Page 97 of 97