Doe v. Spinelli et. al.

Filing 64

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons discussed in the attached Memorandum and Order, the Court adopts the R&R in its entirety. The Court DENIES Plaintiff's motion to amend. The Court (1) GRANTS: Defendants� 39; motion to dismiss Plaintiff's (a) federal excessive force claims against Court Officers Spinelli and Williams, (b) federal malicious abuse of the criminal process claims against the court officers, (c) federal malicious prosecution claims ag ainst the court officers, (d) federal fabrication of evidence claims against the court officers, (e) federal selective enforcement claims against the court officers, (f) failure to intervene claims against the court officers, (g) unconstitutional def amation claims against the court officers, and (h) federal and state conspiracy claims against the officers; and (2) DENIES: Defendants' motion to dismiss (a) Plaintiff's claims against Court Officers Spinelli and Williams for lack of perso nal jurisdiction, (b) state and federal false arrest claims against the court officers, (c) federal excessive force claim against Court Officer Alfieri, (d) state assault and battery claims against the court officers, (e) state malicious prosecution claims against the court officers, and (f) First Amendment retaliation claims against the court officers. The Court grants Plaintiff an extension time to effect proper service on Court Officers Spinelli and Williams. Plaintiff shall properly serve C ourt Officers Spinelli and Williams within thirty (30) days of the date of this Memorandum and Order and file proof of such service with the Clerk of Court. If Plaintiff fails to effect proper service on Court Officers Spinelli and Williams within t he time specified, Defendants may renew their motion to dismiss for failure of proper service as to Court Officers Spinelli and Williams. The Court GRANTS Defendants' motion to dismiss all of Plaintiff's claims against Moody and dismisses her from the action. The Clerk of Court is directed to amend the docket accordingly. Ordered by Judge Margo K. Brodie on 9/26/2017. (Hawkins, Salah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------PRASANNA GOONEWARDENA,
Plaintiff,

MEMORANDUM & ORDER
15-CV-5239 (MKB) (ST)

v.
LOUIS SPINELLI, ANGELA MOODY, JAMES
ALFIERI and SHAWN WILLIAMS
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Prasanna Goonewardena, proceeding pro se, commenced the above-captioned
action on September 10, 2015, against Defendants Louis Spinelli and James Alfieri, who are
New York State court officers, alleging violations of federal and New York State law. (Compl.,
Docket Entry No. 1.) Plaintiff filed an Amended Complaint on November 6, 2015, adding
Defendant Angela Moody, a New York State court reporter, and claims against Moody for
alleged violations federal and New York State law. (Am. Compl., Docket Entry No. 8.) With the
Court’s permission, Plaintiff filed a Third Amended Complaint (“TAC”) on May 19, 2016,
adding Defendant Shawn Williams, a New York State court officer. (TAC, Docket Entry
No. 35.)1
Plaintiff’s claims arise from an altercation with court officers at the Supreme Court of
New York, Queens County, the court officers’ issuance of a summons to Plaintiff for disorderly

1

On February 16, 2016, Magistrate Judge Lois Bloom granted Plaintiff leave to file a
Second Amended Complaint, (Order dated Feb. 16, 2016, Docket Entry No. 23), which Plaintiff
filed on March 23, 2016. (Second Am. Compl. (“SAC”), Docket Entry No. 26.) The case was
reassigned to Magistrate Judge Steven Tiscione on March 28, 2016, (Order dated Mar. 28, 2016),
who granted Plaintiff leave to file the TAC, (Order dated Apr. 28, 2016, Docket Entry No. 32).

conduct, and Plaintiff’s appearance in state court to respond to the summons. (TAC ¶¶ 18–76.)
Defendants move to dismiss the TAC for lack of personal jurisdiction and failure to state a claim
upon which relief may be granted pursuant to Rules 12(b)(5) and 12(b)(6) of the Federal Rules of
Civil Procedure, respectively. (Defs. Mot. to Dismiss (“Defs. Mot.”), Docket Entry No. 42;
Defs. Mem. of Law in Supp. of Defs. Mot. (“Defs. Mem.”), Docket Entry No. 43.) While
Defendants’ motion was pending, Plaintiff filed a motion for leave to amend the TAC, seeking to
add fraudulent inducement and procedural due process claims against Moody. (Pl. Mot. to
Amend, Docket Entry No. 46.)
On November 14, 2016, the Court referred the motions to Magistrate Judge Steven
Tiscione for a report and recommendation. (Order dated Nov. 14, 2016.) By report and
recommendation dated August 14, 2017 (the “R&R”), Judge Tiscione recommended that the
Court deny Plaintiff’s motion to amend the TAC, grant in part and deny in part Defendants’
motion, and dismiss Moody from the action. (R&R, Docket Entry No. 57.) Defendants filed
timely objections to the R&R. (Defs. Objs. to R&R (“Defs. Objs.”), Docket Entry No. 61.)
Plaintiff filed a letter informing the Court that he has no objections to the R&R. (Pl. Letter dated
Aug. 29, 2017 (“Pl. Letter”), Docket Entry No. 60.) For the reasons discussed below, the Court
adopts Judge Tiscione’s R&R in its entirety. The Court denies Plaintiff’s motion, grants in part
and denies in part Defendants’ motion, and dismisses Moody from the action.
I.

Background
The Court assumes familiarity with the facts of the case as set forth in detail in the R&R

and assumes the truth of the allegations in the TAC for the purpose of this Memorandum and
Order.

2

a.

Factual background

On September 11, 2014, Plaintiff went to the state court to conduct research at the state
court’s law library. (TAC ¶ 18.) Plaintiff was carrying a bag containing “a large tape recorder.”
(Id.) In order to enter the state courthouse, Plaintiff’s bag had to be scanned by the state court’s
security scanner. (Id.) After Plaintiff’s bag was scanned, Court Officer Williams asked Plaintiff
if he had “a recorder in the bag.” (Id.) Plaintiff responded that he did, and Court Officer
Williams told Plaintiff that he was not allowed to take the recorder into the courthouse but could
check it at the security desk and retrieve it when he was leaving. (Id.) Court Officer Williams
gave Plaintiff a form to complete to check the recorder at the security desk. (Id. ¶ 19.) Because
Plaintiff was unfamiliar with the form and the check-in procedures, Plaintiff “took time to read”
the form before completing it. (Id.) As Plaintiff read the form, Court Officer Williams “became
agitated and impatient” and asked Plaintiff whether he was going to sign the form. (Id.) Plaintiff
responded that he was still reading the form. (Id.) Court Officer Williams then said “[t]here is
nothing to read” and instructed Plaintiff to “[e]ither sign the form or get out of here.” (Id.)
Plaintiff told Court Officer Williams not to “get an attitude,” which caused Court Officer
Williams to become “physically aggressive and combative” and threaten “to punch [Plaintiff] in
the face.” (Id. ¶ 20.) Plaintiff told Court Officer Williams to “[t]ake [his] best shot.” (Id.) Court
Officer Williams then took the form from Plaintiff’s hands, “ripped it into pieces” and told
Plaintiff to “get the hell out of here.” (Id. ¶ 21.) Plaintiff asked to speak with Court Officer
Williams’ supervising officer. (Id.)
Court Officer Spinelli approached during Plaintiff’s exchange with Court Officer
Williams and inquired about the issue between the two, to which Court Officer Williams
responded that Plaintiff was “causing trouble” because he did not “want to sign the paper for the
recorder.” (Id. ¶ 24.) Plaintiff denied causing any trouble. (Id. ¶ 25.) Court Officer Spinelli
3

then “grabbed [P]laintiff by his arm and dragged [him] outside.” (Id.) When Plaintiff was
outside, Court Officer Spinelli “hit [P]laintiff on the head with the tape recorder.” (Id. ¶ 26.)
Plaintiff asked Court Officer Spinelli to return Plaintiff’s recorder and again asked to speak to a
supervising court officer. (Id.)
Court Officer Spinelli radioed for a supervising officer and Court Officer Alfieri arrived
shortly thereafter. (Id. ¶ 27.) Court Officer Spinelli told Court Officer Alfieri that Plaintiff was
“causing trouble.” (Id. ¶ 28.) Plaintiff denied that he was causing any trouble. (Id.) Court
Officer Alfieri instructed Court Officer Spinelli to take Plaintiff back inside the courthouse and
issue him a summons. (Id.) Plaintiff stated that he was “going to go home” and did not “want to
go inside anymore.” (Id.) From approximately fifteen feet away from Plaintiff, Court Officer
Alfieri “ran” toward Plaintiff, “grabbed [P]laintiff’s left hand,” “twisted [P]laintiff’s left arm,”
“pushed [P]laintiff against [a] wall” and told Plaintiff that if he did not reenter the courthouse to
receive a summons that he would be handcuffed and forcibly taken inside. (Id. ¶¶ 29, 32.)
Plaintiff agreed to go back inside the courthouse. (Id. ¶ 29.)
After Plaintiff and Court Officers Alfieri and Spinelli went inside the courthouse, Court
Officer Alfieri instructed Court Officer Spinelli to issue Plaintiff a summons for disorderly
conduct. (Id. ¶ 36.) Court Officer Spinelli asked Plaintiff for his identification to complete the
summons. (Id. ¶ 43.) Plaintiff complied. (Id.)
Plaintiff returned to the state court on November 6, 2014, to answer the summons and
appeared before Judge Donna Golia. (Id. ¶¶ 59–62, 96.) Moody was the court reporter for the
proceeding. (Id. ¶¶ 59–62, 96.) According to Plaintiff, Judge Golia dismissed the charges
against Plaintiff, but despite the dismissal of the charges, Judge Golia and Moody falsified the

4

court records to state that Plaintiff accepted a six-month adjournment in contemplation of
dismissal pursuant to New York Penal Law section 170.55. (Id. ¶¶ 66–73.)
Plaintiff returned to the state court on July 16, 2015, “for [a] litigation purpose.”
(Id. ¶ 46.) As Plaintiff was leaving the state court, he saw Court Officer Spinelli and told Court
Officer Spinelli that “you assaulted me the other day and [] violated my [Fourth] [A]mendment
rights. You lied on the summons . . . [and] [i]t took me the entire day to get it dismissed.” (Id.)
Court Officer Spinelli responded by taking out his firearm and “hold[ing] it against his [own]
stomach.” (Id. ¶ 47.) Plaintiff walked away because he was in “fear[] for his safety.” (Id.)
Plaintiff alleges that Court Officer Alfieri’s actions outside the courthouse on September
11, 2014, caused injuries to Plaintiff’s left shoulder and left elbow, which prevented him from
“lift[ing] any heavy objects for two months” after the encounter. (Id. ¶¶ 30, 86.)
b.

Procedural background

Plaintiff alleges claims against the court officers pursuant to 42 U.S.C. § 1983 for false
arrest, excessive force, selective enforcement of the law based on race and national origin, denial
of the right to a fair trial based on fabrication of evidence, malicious abuse of the criminal
process, malicious prosecution, failure to intervene, unconstitutional defamation and First
Amendment retaliation and conspiracy. (TAC ¶¶ 18–158.) Plaintiff alleges state law claims
against the court officers for false arrest, assault, battery, malicious prosecution and conspiracy.
(Id.) Against Moody, Plaintiff alleges claims pursuant to section 1983 for unconstitutional
defamation, the denial of substantive due process and conspiracy, as well as state law claims for
breach of contract, negligent misrepresentation and conspiracy.2 (Id.)
2

While Plaintiff did not specifically allege each of the claims specified above, because
Plaintiff is proceeding pro se, in accordance with Second Circuit precedent, Judge Tiscione
liberally construed the TAC to allege any claims supported by the factual allegations in the TAC.

5

Defendants moved to dismiss the TAC for lack of personal jurisdiction and failure to state
a claim upon which relief may be granted, (Defs. Mot.; Defs. Mem.), and Plaintiff subsequently
filed a motion for leave to amend the TAC, seeking to add fraudulent inducement and due
process claims against Moody, (Pl. Mot. to Amend). The Court referred the motions to Judge
Tiscione for a report and recommendation. (Order dated Nov. 14, 2016.)
Judge Tiscione recommended that the Court deny Plaintiff’s motion to further amend the
TAC. (R&R 50.) Judge Tiscione also recommended the Court grant in part and deny in part
Defendants’ motion, specifically, that the Court (1) DENY: Defendants’ motion to dismiss
Plaintiff’s (a) claims against Court Officers Spinelli and Williams for lack of personal
jurisdiction based on failure to effect proper service, (b) state and federal false arrest claims
against the court officers, (c) federal excessive force claim against Court Officer Alfieri, (d) state
assault and battery claims against the court officers, (e) state malicious prosecution claims
against the court officers, and (f) First Amendment retaliation claims against the court officers;
(2) GRANT: Defendants’ motion to dismiss Plaintiff’s (a) federal excessive force claims against
Court Officers Spinelli and Williams, (b) federal malicious abuse of the criminal process claims
against the court officers, (c) federal malicious prosecution claims against the court officers,
(d) federal fabrication of evidence claims against the court officers, (e) federal selective
enforcement claims against the court officers, (f) failure to intervene claims against the court
officers, (g) unconstitutional defamation claims against the court officers, and (h) federal and
state conspiracy claims against the officers; and also (3) GRANT: Defendants’ motion to dismiss
all of Plaintiff’s claims against Moody and dismiss Moody from the action. (R&R 9–52.)

See Wiley v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (holding that courts must liberally
construe papers submitted by pro se litigants “to raise the strongest arguments they suggest”).

6

Defendants filed timely objections, challenging Judge Tiscione’s recommendations that
the Court: (1) deny Defendants’ motion for lack of personal jurisdiction over Court Officers
Spinelli and Williams due to the lack of proper service, (2) deny Defendants’ motion to dismiss
Plaintiff’s assault and battery claims against Court Officers Spinelli and Williams, and (3) deny
Defendants’ motion to dismiss Plaintiff’s First Amendment retaliation claims against all three
court officers. (Defs. Objs. 3–10.) Plaintiff filed a letter informing the Court that he has no
objections to the R&R. 3 (Pl. Letter.)
II. Discussion
a.

Standards of review
i.

Report and recommendation

A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation
to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.
2015). The district court may adopt those portions of the recommended ruling to which no
timely objections have been made, provided no clear error is apparent from the face of the
record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1
(E.D.N.Y. Nov. 24, 2015). The clear error standard also applies when a party makes only
conclusory or general objections, or simply reiterates its original arguments. Chime v. Peak Sec.

3

Plaintiff filed a response to Defendants’ objections on September 20, 2017, which
repeats Judge Tiscione’s bases for denying Defendants’ motion as to lack of jurisdiction over
Court Officers Spinelli and Williams for failure to effect proper service, Plaintiff’s assault and
battery claims against Court Officers Spinelli and Williams, and Plaintiff’s First Amendment
retaliation claims. (See Pl. Opp’n to Defs. Objs., Docket Entry No. 63; R&R 9–14, 36–44.)
7

Plus, Inc., 137 F. Supp. 3d 183, 187 (E.D.N.Y. 2015) (“General or conclusory objections, or
objections which merely recite the same arguments presented to the magistrate judge, are
reviewed for clear error.” (citation omitted)); see also DePrima v. N.Y.C. Dep’t of Educ.,
No. 12-CV-3626, 2014 WL 1155282, at *3 (E.D.N.Y. Mar. 20, 2014) (collecting cases).
ii.

Rule 12(b)(5)

Rule 12(b)(5) permits a party to move to dismiss the complaint for insufficient service of
process. Fed. R. Civ. P. 12(b)(5). “In considering a Rule 12(b)(5) motion to dismiss for
insufficient service of process, a court must look[ ] to matters outside the complaint to determine
whether it has jurisdiction.” George v. Prof’l Disposables Int’l, Inc., 221 F. Supp. 3d 428, 432
(S.D.N.Y. 2016) (internal quotation marks omitted) (quoting Cassano v. Altshuler, 186 F. Supp.
3d 318, 320 (S.D.N.Y. 2016)); see also Hawthorne v. Citicorp Data Sys., Inc., 219 F.R.D. 47, 49
(E.D.N.Y. 2003) (“Without proper service a court has no personal jurisdiction over a
defendant.”). A court considers whether the plaintiff has complied with Rule 4, which governs
the content, issuance and service of a summons. DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d
54, 64 (S.D.N.Y. 2010). “Once a defendant challenges the sufficiency of service of process, the
burden of proof is on the plaintiff to show the adequacy of service.” Id. (citation
omitted); accord Khan v. Khan, 360 F. App’x. 202, 203 (2d Cir. 2010).
iii. Rule 12(b)(6)
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained
in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,
8

556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff's
pleadings should be held “to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble,
429 U.S. 97, 104–105 (1976)); see also Wiley v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015)
(holding that courts must liberally construe papers submitted by pro se litigants “to make the
strongest arguments they suggest”); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that
even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”).
b.

Unopposed recommendations

No party has objected to Judge Tiscione’s recommendations that the Court: (1) deny
Defendants’ motion to dismiss Plaintiff’s (a) state and federal false arrest claims against the court
officers, (b) federal excessive force claim against Court Officer Alfieri, (c) state assault and
battery claim against Court Officer Alfieri, and (d) state malicious prosecution claims against the
court officers; (2) grant Defendants’ motion to dismiss Plaintiff’s (a) federal excessive force
claims against Court Officers Spinelli and Williams, (b) federal malicious abuse of the criminal
process claims against the court officers, (c) federal malicious prosecution claims against the
court officers, (d) federal fabrication of evidence claims against the court officers, (e) federal
selective enforcement claims against the court officers, (f) failure to intervene claims against the
court officers, (g) unconstitutional defamation claims against the court officers, and (h) federal
and state conspiracy claims against the officers; and (3) grant Defendants’ motion to dismiss all
of Plaintiff’s claims against Moody and dismiss Moody from the action. (R&R 9–52; Defs.
Objs. 3–10; Pl. Letter.) The Court has reviewed the unopposed portions of the R&R, and,

9

finding no clear error, the Court adopts Judge Tiscione’s unopposed recommendations pursuant
to 28 U.S.C. § 636(b)(1)(C).4
c.

Defendants’ objections

Defendants object to Judge Tiscione’s recommendations that the Court: (1) deny
Defendants’ motion for lack of personal jurisdiction over Court Officers Spinelli and Williams
for failure to effect proper service, (2) deny Defendants’ motion to dismiss Plaintiff’s assault and

4

Judge Tiscione recommended that the Court dismiss Plaintiff’s claim for the denial of
the right to a fair trial based on fabrication of evidence on the ground that “claims for the denial
of a right to a fair trial cannot succeed if there was no trial.” (R&R 36 (citing Nieves v. Fahmy,
No. 15-CV-7297, 2016 WL 6804926, at *4 (E.D.N.Y. Nov. 11, 2016).) The Court declines to
dismiss Plaintiff’s fabrication of evidence claim on that ground as Second Circuit precedent
appears to allow a plaintiff to pursue a denial of the right to a fair trial claim based on fabrication
of evidence even when there is no trial. See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 126,
130 (2d Cir. 1997) (reversing a district court’s dismissal of a fabrication of evidence claim even
though “[a]ll charges were dismissed by a pre-trial court order”); see also Arbuckle v. City of
New York, No. 14-CV-10248, 2016 WL 5793741, at *10–11 (S.D.N.Y. Sept. 30, 2016)
(“Although some courts have held that a [s]ection 1983 claim for denial of the right to a fair trial
requires that a trial have actually been conducted, the Second Circuit in Ricciuti and other courts
in the district have found otherwise.” (first citing Schiller v. City of New York, No. 04-CV-10178,
2008 WL 200021, at *10 (S.D.N.Y. Jan. 23, 2008); and then citing Canario v. City of New York,
No. 05-CV-9343, 2006 WL 2015651, at *2-4 (S.D.N.Y. July 12, 2006))).
The Court, however, adopts Judge Tiscione’s recommendation that the Court dismiss the
fabrication of evidence claim because Plaintiff fails to establish that he suffered a deprivation of
liberty. See Garnett v. Undercover Officer C0039, 838 F.3d 265, 277 (2d Cir. 2016) (holding
that to establish a fair trial claim based on fabrication of evidence, a plaintiff must show that “an
(1) investigating official (2) fabricates evidence (3) that is likely to influence a jury’s decision,
(4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of liberty
as a result” (citation omitted)). After Plaintiff received the summons, he was not detained and
only appeared once in state court — the hearing at which the charges were dismissed.
(TAC ¶¶ 36, 41, 59, 72.) Plaintiff’s allegations therefore fail to establish a constitutional
deprivation of liberty. See Burg v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2010) (holding that “the
issuance of a pre-arraignment non-felony summons requiring a later court appearance, without
further restrictions, does not constitute a . . . seizure” sufficient to establish a constitutional
deprivation of liberty); Arbuckle, 2016 WL 5793741, at *2–3, *10–11 (finding that a plaintiff
failed to establish a constitutional deprivation of liberty where police officers arrested the
plaintiff and released him after issuing him a summons, which only required the plaintiff to
appear before the state court on three separate occasions before the charges were dismissed).

10

battery claims against Court Officers Spinelli and Williams, and (3) deny Defendants’ motion to
dismiss Plaintiff’s First Amendment retaliation claims against all three court officers. (Defs.
Objs. 3–10.) The Court addresses each of Defendants’ objections below.
i.

Failure to effect proper service

Defendants argue that the Court lacks personal jurisdiction over Court Officers Spinelli
and Williams because under Rule 4 of the Federal Rules of Civil Procedure, Plaintiff failed to
effect proper service on Court Officers Spinelli and Williams and failed to provide good cause
for the defective service. (Defs. Objs. 3–5.)
Pursuant to Rule 4(m), a plaintiff is responsible for service of the summons and
complaint within ninety days of filing the complaint. Fed. R. Civ. P. 4(c)(1). An individual may
be served either by “following state law”5 or by delivering a copy of the summons and complaint
personally to the individual, leaving a copy at the individual’s dwelling place with someone of
suitable age and discretion who resides there, or delivering a copy to an agent authorized by
appointment or by law to receive service of process. Fed. R. Civ. P. 4(e).
Rule 4(m) provides that:
If a defendant is not served within [ninety] days after the complaint
is filed, the court — on motion or on its own after notice to the
plaintiff — must dismiss the action without prejudice against that
defendant or order that service be made within a specified time. But
if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Id. 4(m). “It is clear under the second clause of Rule 4(m) that an extension is always warranted
upon a showing of ‘good cause,’” and “[t]he first clause of Rule 4(m), which makes no mention
of good cause, grants discretion to district courts in a backhanded fashion by dictating that

5

New York law authorizes additional methods of service on a person that are not
relevant here. See N.Y. C.P.L.R. § 308; id. § 312-a(a).
11

they . . . must decide to dismiss . . . or decide not to dismiss. But no criteria for this decision are
supplied in the rule itself.” Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007). In
determining whether a discretionary extension is appropriate absent good cause, a court
considers the following factors: (1) whether any applicable statutes of limitations would bar the
action once refiled; (2) whether the defendant had actual notice of the claims asserted in the
complaint; (3) whether the defendant attempted to conceal the defect in service; and (4) whether
the defendant would be prejudiced by extending the plaintiff’s time for service. See Zankel v.
United States, 921 F.2d 432, 437–38 (2d Cir. 1990) (discussing the discretionary factors in a suit
against the United States government); Jones v. Westchester County, 182 F. Supp. 3d 134, 145
(S.D.N.Y. 2016) (discussing the discretionary factors in a case involving a non-government
defendant); Fowler v. City of New York, No. 13-CV-2372, 2015 WL 9462097, at *5 (E.D.N.Y.
Dec. 23, 2015) (same); DeLuca, 695 F. Supp. 2d at 66 (collecting cases); see also Soos v.
Niagara County, 195 F. Supp. 3d 458, 467 (W.D.N.Y. 2016); Howell v. Campbell,
No. 15-CV-3705, 2016 WL 1241529, at *4 (S.D.N.Y. Mar. 23, 2016); Beauvoir v. U.S. Secret
Serv., 234 F.R.D. 55, 58 (E.D.N.Y. 2006).
The Second Circuit has held that when a plaintiff is proceeding pro se, district courts
should take special care when deciding whether to dismiss a complaint for failure of proper
service because “pro se plaintiffs should be granted special leniency regarding procedural
matters.” Thrall v. Cent. N.Y. Reg’l Trans. Auth., 399 F. App’x 663, 666 (2d Cir. 2010) (quoting
Lesane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001)); see also Jaiyeola v. Carrier
Corp., 73 F. App’x 492, 493–94 (2d Cir. 2003) (reversing a district court’s decision to dismiss
the pro se plaintiff’s complaint for failure of proper service). The Second Circuit explained that:
Rule 4 of the Federal Rules is to be construed liberally “to further
the purpose of finding personal jurisdiction in cases in which the

12

party has received actual notice.” We further noted that “incomplete
or improper service will lead the court to dismiss the action unless
it appears that proper service may still be obtained.”
Jaiyeola, 73 F. App’x at 494 (quoting Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.
1986)).
Here, although Plaintiff provides no arguments regarding good cause for his failure to
effect proper service on Court Officers Spinelli and Williams, the discretionary factors weigh in
favor of granting Plaintiff leave to effect proper service on Court Officers Spinelli and Williams,
especially considering Plaintiff’s pro se status. When Plaintiff filed the Complaint, Plaintiff
failed to serve Defendants with a copy of the summons and Complaint. Plaintiff subsequently
filed an Amended Complaint, (Am. Compl.), after which filing Judge Bloom ordered Plaintiff to
serve Defendants with a copy of the summons and Amended Complaint, (Order dated Nov. 9,
2015, Docket Entry No. 10). Plaintiff mailed a copy of the summons and Amended Complaint to
the state court addressed to Court Officer Spinelli. (Executed Summonses dated Dec. 18, 2015,
at 3, Docket Entry No. 14.)6
With the Court’s permission, Plaintiff subsequently filed a Second Amended Complaint
and a TAC. (SAC; TAC.) In the TAC, Plaintiff added Court Officer Williams as a Defendant.
(TAC ¶ 17.) Plaintiff served Defendants’ counsel with a copy of the TAC, (Affirmation of
Service of TAC, annexed to TAC as Ex. 1), but failed to serve the summons and TAC on any of
the Defendants. After Plaintiff filed the TAC, Defendants’ counsel briefed a motion to dismiss
on behalf of Defendants, including Court Officers Spinelli and Williams, which motion
contained jurisdictional and substantive arguments as to why the Court should dismiss Plaintiff’s
claims against, among others, Court Officers Spinelli and Williams. (See Defs. Mot.; Defs.
6

Because the Executed Summonses are not consecutively paginated, the Court refers to
the electronic document filing system (“ECF”) pagination.
13

Letter dated June 30, 2016, Docket Entry No. 36.) To determine whether the Court should allow
Plaintiff an extension of time to effect proper service on Court Officers Spinelli and Williams,
the Court considers the factors discussed above.
1.

Statute of limitations

If dismissal of an action without prejudice for failure of proper service would bar the
plaintiff’s ability to refile the action because the statute of limitations has run, such
circumstances weigh in favor of extending the plaintiff’s time to effect proper service. Zapata,
502 F.3d at 198 (holding that “extension might be justified where [the] statute of limitations
would bar the refiling of an action”); Zankel, 921 F.2d at 437–38 (holding that an extension of
time to effect proper service was warranted where the “[p]laintiffs suffered extreme prejudice
from the dismissal of their complaint, since it appears that their action is now barred by the
statute of limitations”). The statute of limitations for section 1983 claims brought in a federal
court in New York is three years from the date the underlying constitutional violation occurred.
See Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015). The statute of limitations for state law
claims of false arrest, malicious prosecution, assault and battery under New York law is one year
from the date of the alleged violations. See Allen v. Antal, 665 F. App’x 9, 13 (2d Cir. 2016)
(citing N.Y. C.P.L.R § 215(3)).
Here, as to Court Officers Spinelli and Williams, Plaintiff’s claims primarily are based on
conduct that occurred on September 11, 2014. (TAC ¶¶ 18–44.) Plaintiff filed this action on
September 10, 2015. (Compl 1.) The statute of limitations ran on September 11, 2017, for
Plaintiff’s section 1983 claims and on September 11, 2015, for Plaintiff’s state law claims.
Dismissal of the action without prejudice would therefore bar Plaintiff’s ability to refile the
action as the statute of limitations has run for both the federal and state law claims, which

14

circumstances favor granting Plaintiff an extension of time to effect proper service on Court
Officers Spinelli and Williams. See Zankel, 921 F.2d at 437–38 (holding that the running of the
statute of limitations weighed in favor of granting the plaintiffs an extension of time to effect
proper service); Jones, 182 F. Supp. 3d at 145 n.7 (“[M]ost courts [] consider the fact that the
statute of limitations has run on a plaintiff’s claim as a factor favoring the plaintiff in a Rule
4(m) analysis.” (citation and internal quotation marks omitted)).
2.

Actual notice

A defendant’s actual notice of claims against the defendant weighs in favor of granting
the plaintiff an extension of time to effect proper service. See Jaiyeola, 73 F. App’x at 494
(“Rule 4 of the Federal Rules is to be construed liberally to further the purpose of finding
personal jurisdiction in cases in which the party has received actual notice.” (citation and internal
quotation marks omitted)). Although it is not clear that Court Officers Spinelli and Williams
have actual notice of the action, the New York Attorney General’s Office has actual notice of the
claims and has moved to dismiss the claims against Court Officers Spinelli and Williams.
(See Affirmation of Service of TAC; Defs. Letter dated June 30, 2016; Defs. Mot.) This factor
therefore weighs in favor of granting an extension of time to allow proper service of process.
See Jones, 182 F. Supp. 3d at 144 (finding that the notice factor weighed in favor of granting the
plaintiff an extension of time to serve because “while there is no competent evidence . . . that [the
defendants] had actual notice of the claims against them, defense counsel has engaged in motion
practice on their behalf” (collecting cases)); Jordan v. Forfeiture Support Assocs., 928 F. Supp.
2d 588, 599 (E.D.N.Y. 2013) (“The second factor similarly militates in favor of granting plaintiff
an extension. Defendant undoubtedly had actual notice of the issues underlying the
Complaint.”).

15

3.

Concealment

If a defendant does not attempt to conceal the defect in service, such inaction weighs
against granting the plaintiff an extension to effect proper service. See Jones, 182 F. Supp. 3d at
145; George, 221 F. Supp. 3d at 436; Fowler, 2015 WL 9462097, at *7. Here, this factor weighs
in favor of Defendants as they did not attempt to conceal the defect in service — they informed
Plaintiff of their intention to move to dismiss the claims in the Amended Complaint against
Court Officer Spinelli based on failure of proper service and, shortly after Plaintiff filed the TAC,
moved to dismiss the claims against Court Officers Spinelli and Williams based on failure of
proper service. (Defs. Letter dated Jan. 19, 2016, Docket Entry No. 16; Defs. Mot. 6–8); see
George, 221 F. Supp. 3d at 436 (finding that the concealment factor weighed in the defendants’
favor because the defendants “sought dismissal of the [a]mended [c]omplaint under Rule
12(b)(5) approximately one month after receiving the summons and [a]mended [c]omplaint”);
cf. Zankel, 921 F.2d at 437 (holding that because the defendants “did not disclose the special
character of [the] plaintiffs’ defective service until . . . 14 months after the suit was commenced,”
which was not “within the statute of limitations period” and moved to dismiss “after the
expiration of this period,” such concealment weighed in favor of granting the plaintiffs an
extension of time to effect proper service).
4.

Prejudice

A defendant’s failure to show that the defendant would be prejudiced if the court grants
the plaintiff an extension of time to effect proper service weighs in favor of granting an
extension. See Zankel, 921 F.2d at 437–38 (holding that a district court should have granted the
plaintiffs an extension of time to effect proper service because, inter alia, the defendants
“suffered no prejudice from the technical defect in service”); Jones, 182 F. Supp. 3d at 145

16

(collecting cases). While Court Officers Spinelli and Williams do not argue any prejudice that
they would suffer if the Court granted Plaintiff an extension of time to effect proper service, (see
Defs. Objs. 3–5), under the circumstances here, there is little prejudice, if any, to Court Officers
Williams and Spinelli because they are both employed by New York State and represented by the
New York State Attorney General’s Office, which has been served with process and is actively
defending the litigation on behalf of Moody and Court Officer Alfieri as well as Court Officers
Spinelli and Williams. See Jones, 182 F. Supp. 3d at 144 (“[T]he unserved [d]efendants do not
cite any prejudice that has resulted from their failure to be served. Indeed, in cases like this,
where all defendants are employed by a common employer . . . , it is unclear what prejudice [the]
unserved defendants may suffer.” (citations omitted) (collecting cases)); Frederick v. City of New
York, No. 13-CV-897, 2016 WL 8711395, at *8 (E.D.N.Y. Mar. 25, 2016) (noting the lack of
prejudice to [the] late-served individual defendants where counsel for the City of New York
moved to dismiss the claims against the late-served defendants and there were no unique
defenses as to those two defendants); Tabb v. Rosemary, No. 12-CV-1520, 2014 WL 240266, at
*7 (S.D.N.Y. Jan. 22, 2014) (finding “little, if any, prejudice to the . . . as-yet unserved
defendants occasioned by the delay in serving them,” because the defendants “are all DOC
employees and will presumably be represented by common counsel” and an “equal[ly]interest[ed]” individual co-defendant had been “vigorously litigat[ing]” the action).
Accordingly, based on the fact that three of the four factors weigh in Plaintiff’s favor, and
the fact that Plaintiff is proceeding pro se, the Court grants Plaintiff an extension of time to effect
proper service on Court Officers Spinelli and Williams. See Thrall, 399 F. App’x at 666 (holding
that “pro se plaintiffs should be granted special leniency regarding procedural matters” (citation
omitted)); Jones, 182 F. Supp. 3d at 145 (“The Court acknowledges that factors one and three

17

weigh against an extension . . . [h]owever, factors two and four, coupled with [the] [p]laintiff’s
pro se status, weigh strongly in favor of an extension.”); Harrison v. New York, 95 F. Supp. 3d
293, 320 (E.D.N.Y. 2015) (finding that a lack of concealment at the third factor “alone is not
sufficient to offset other factors weighing in [the] [p]laintiff’s favor”). Plaintiff shall serve Court
Officers Spinelli and Williams within thirty (30) days of the date of this Memorandum and
Order. If Plaintiff fails to effect proper service on Court Officers Spinelli and Williams, they
may renew their motion to dismiss for failure of proper service.7

7

Although the Court grants Plaintiff an extension of time to effect proper service on
Court Officers Spinelli and Williams, such service has not yet been effected and therefore the
Court lacks personal jurisdiction over Court Officers Spinelli and Williams until the time that
Plaintiff effects proper service on them. See Dynegy Midstream Servs. v. Trammochem, 451
F.3d 89, 94 (2d Cir. 2006) (“Before a federal court may exercise personal jurisdiction over a
defendant” and address the merits of the claims against the defendant, “the procedural
requirement of service of summons must be satisfied.” (citation and internal quotation marks
omitted)).
However, the Court addresses Defendants’ arguments as to the merits of the claims
against Court Officers Spinelli and Williams because the Court extended Plaintiff’s time to effect
proper service and Defendants have briefed the merits of the claims against Court Officers
Spinelli and Williams, and, therefore, it would be a waste of the parties’ and the Court’s time for
the Court to decline to address the merits of those claims until Plaintiff effects proper service.
See United States v. Vazquez, 145 F.3d 74, 80 & n.3 (2d Cir. 1998) (addressing the merits of the
claims even though personal jurisdiction was not established due to lack of proper service
because “the failure timely to serve a summons and complaint on the opposing party is
excusable,” and therefore it was “not an exercise of the hypothetical jurisdiction of the sort
disapproved of by the Supreme Court” (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 92–102 (1998))); Howell v. Campbell, No. 15-CV-3705, 2016 WL 1241529, at *4 (S.D.N.Y.
Mar. 23, 2016) (granting an extension of time to effect proper service and then addressing the
merits of the case); see also Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979)
(“[P]ersonal jurisdiction . . . is [not] fundamentally preliminary in the sense that subject-matter
jurisdiction is, for [it is a] personal privilege[] of the defendant, rather than [an] absolute
stricture[] on the court.”); F5 Capital v. Pappas, 856 F.3d 61, 81 (2d Cir. 2017) (holding that,
whenever possible, courts should resolve “all . . . disputes arising from the same core of facts and
thereby conserve judicial resources”).
If Plaintiff fails to effect proper service on Court Officers Spinelli and Williams within
the time specified by the Court and Defendants renew their motion to dismiss for lack of
personal jurisdiction over Court Officers Spinelli and Williams, the Court will vacate its decision
as to the merits of Plaintiff’s claims against Court Officers Spinelli and Williams and dismiss

18

ii.

State law assault and battery claims

Defendants argue that because the federal excessive force claims against Court Officers
Spinelli and Williams fail, the Court should dismiss the state law assault and battery claims
against Court Officers Spinelli and Williams. (Defs. Objs. 8–10.)
Under New York law, “assault is an intentional placing of another person in fear of
imminent harmful or offensive contact” and a “battery is an intentional wrongful physical contact
with another person without consent.” Green v. City of New York, 465 F.3d 65, 86 (2d Cir. 2006)
(citing Charkhy v. Altman, 678 N.Y.S.2d 40, 41 (App. Div. 1998)); see also United Nat’l Ins. Co.
v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993) (citing Hernandez v. Lattimore,
612 F.2d 61, 67 (2d Cir. 1979)); Rucks v. City of New York, 96 F. Supp. 3d 138, 153 (S.D.N.Y.
2015). If an officer lacks probable cause for an arrest, any force used by the officer in
effectuating the unlawful arrest constitutes assault and battery. See Rucks, 96 F. Supp. 3d at 153
(“[I]f an arrest is determined to be unlawful, any use of force against a plaintiff may constitute an
assault and battery, regardless of whether the force used would be deemed reasonable if applied
during a lawful arrest. In fact, where an arrest is unlawful and without consent, the use of force
in an arrest must give rise to a claim for assault and battery. ” (internal quotation marks omitted)
(first quoting Sulkowska v. City of New York, 129 F. Supp. 2d 274, 294 (S.D.N.Y. 2001); and then
citing Johnson v. Suffolk Cty. Police Dep’t, 665 N.Y.S.2d 440, 441 (App. Div. 1997))); Biswas v.
those claims without prejudice for lack of personal jurisdiction. See Kelson v. Paterson, 542
F.3d 281, 288 n.14 (2d Cir. 2008) (holding that “a court may at any time dismiss for lack of
jurisdiction”); Jones v. Westchester County, 182 F. Supp. 3d 134, 145 (S.D.N.Y. 2016) (granting
plaintiff an extension of time to effect proper service, addressing the merits of the plaintiff’s
claims and explaining that “[f]ailure to fulfill his obligation . . . [regarding] [s]ervice may result
in the dismissal of the [a]ction”); Adetuyi v. U.S. Power Generating Co., No. 10-CV-8750, 2012
WL 3242318, at *1–2 (S.D.N.Y. Aug. 9, 2012) (finding that the plaintiff’s complaint failed to
state a claim because the plaintiff failed to effect proper service on the defendant, but allowing
the plaintiff to effect proper service and explaining that “if [the] [p]laintiff fails to effect service
by th[e] date specified, the [c]omplaint . . . shall be dismissed”).
19

City of New York, 973 F. Supp. 2d 504, 531 (S.D.N.Y. 2013) (“If an arrest is unlawful, an
arresting police officer commits a battery when he or she touches the arrestee, including during
the application of handcuffs.” (citing Budgar v. State, 414 N.Y.S.2d 463, 466 (Ct. Cl. 1979)));
Mesa v. City of New York, No. 09-CV-10464, 2013 WL 31002, at *32 (S.D.N.Y. Jan. 3,
2013) (“In New York, when there is no probable cause for an arrest, all force employed during
that arrest is unlawful.”); 5 Borough Pawn, LLC. v. Marti, 753 F. Supp. 2d 186, 201 (S.D.N.Y.
2010) (“[I]f an arrest is determined to be unlawful, any use of force against a plaintiff may
constitute an assault and battery, regardless of whether the forced used would be deemed
reasonable if applied during a lawful arrest.” (quoting Sulkowska, 129 F. Supp. 2d at 294)).
Plaintiff alleges that on September 11, 2014, Court Officer Williams threatened to punch
Plaintiff in the face simply because Plaintiff told Court Officer Williams not to “get an attitude”
based on the length of time it was taking Plaintiff to read the form to check his recorder at the
security desk. (TAC ¶¶ 19–20.) Court Officer Spinelli approached during Plaintiff’s exchange
with Court Officer Williams and inquired about the issue between the two, to which Court
Officer Williams responded that Plaintiff “was causing trouble” because he did not “want to sign
the paper for the recorder.” (Id. ¶¶ 24–25.) After Plaintiff denied that he was causing any
trouble, Court Officer Spinelli “grabbed Plaintiff by his arm and dragged Plaintiff outside” of the
courthouse. (Id. ¶¶ 25–26.) While outside of the courthouse, Plaintiff had an exchange with
Court Officer Alfieri, which led to Court Officer Alfieri pushing Plaintiff against a wall and
threatening to handcuff Plaintiff if Plaintiff did not reenter the courthouse to receive a summons
for disorderly conduct. (Id. ¶¶ 26–36.)
Plaintiff returned to the state court on July 16, 2015, “for [a] litigation purpose.”
(Id. ¶ 46.) As Plaintiff was leaving the state court, he saw Court Officer Spinelli and told Court

20

Officer Spinelli “you assaulted me the other day and [] violated my [Fourth] [A]mendment
rights. You lied on the summons . . . [and] [i]t took me the entire day to get it dismissed.” (Id.)
Court Officer Spinelli responded by taking out his firearm and “hold[ing] it against his [own]
stomach.” (Id. ¶ 47.) Plaintiff walked away because he was in “fear[] for his safety.” (Id.)
Defendants do not contest Judge Tiscione’s recommendation that the court officers,
including Court Officers Spinelli and Williams, falsely arrested Plaintiff on September 11, 2014.
(R&R 15–23; Defs. Objs. 8–10.) Defendants therefore have conceded that Plaintiff’s allegations
as to his false arrest claims are sufficient to state a claim upon which relief may be granted.8
See Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 708 (2d Cir. 2007) (holding that by
“fail[ing] to object the magistrate judge’s” recommendation, the defendants’ “conceded the
issue” and “waive[d] any further judicial review of the point” (citation omitted)). Nevertheless,
Defendants argue that the Court must dismiss the assault and battery claims against Court
Officers Spinelli and Williams because Plaintiff’s excessive force claims against Court Officers
Spinelli and Williams fail. (Defs. Objs. 8–10.)
Defendants overlook the critical difference between a federal excessive force claim and
New York state law assault and battery claims against officers for actions that occur in the course
of an arrest. Under federal law, when an officer arrests someone without probable cause, the
unlawful arrest does not automatically give rise to an excessive force claim. See County of Los
Angeles v. Mendez, 581 U.S. ---, ---, 137 S. Ct. 1539, 1547–48 (May 30, 2017) (Federal law does
not dictate “that any Fourth Amendment violation that is connected to a reasonable use of force

8

To be clear, the Court is not finding that Defendants are liable on Plaintiff’s false arrest
claims; the Court only finds that by not objecting to the R&R, Defendants have conceded that
Plaintiff’s allegations as to his false arrest claims are sufficient to state a claim upon which relief
may be granted.
21

should create a valid excessive force claim. Because the excessive force and false arrest factual
inquiries are distinct, establishing a lack of probable cause to make an arrest does not establish
an excessive force claim, and vice-versa.” (citation and internal quotation marks omitted)).
However, as discussed above, New York law holds that any force used during the course of an
unlawful arrest gives rise to assault and battery claims against the arresting officers.9 See, e.g.,
Rucks, 96 F. Supp. 3d at 153 (explaining that, under New York law, “where an arrest is unlawful
and without consent, the use of force in an arrest must give rise to a claim for assault and battery”
(citing Johnson, 665 N.Y.S.2d at 441)). Accordingly, because Plaintiff has established a false
arrest claim against Court Officers Spinelli and Williams, under New York law, Plaintiff has
established assault and battery claims against Court Officers Spinelli and Williams. See Rucks,
96 F. Supp. 3d at 153; Biswas, 973 F. Supp. 2d at 530–31; 5 Borough Pawn, LLC., 753 F. Supp.
2d at 201.
iii. First Amendment retaliation claim
Defendants argue that the Court should dismiss Plaintiff’s First Amendment retaliation
claims because Plaintiff was not retaliated against for engaging in protected speech and,

9

In support of their argument that Plaintiff’s state law assault and battery claims against
Court Officers Spinelli and Williams must fail because the federal excessive force claims against
them fail, Defendants rely on Pelayo v. Port Authority, 893 F. Supp. 2d 632, 641–42 (S.D.N.Y.
2012), and Pierre-Antoine v. City of New York, No. 04-CV-6987, 2006 WL 1292076, at *8
(S.D.N.Y. May 9, 2006). (Defs. Objs. 9–10.) Both Pelayo and Pierre-Antoine were cases where
the officers lawfully arrested the plaintiffs, but used excessive force in the course of the lawful
arrests. See Pelayo, 893 F. Supp. 2d at 641 (“Because [the plaintiff] has failed to produce
evidence from which a reasonable juror could conclude that the [] defendants falsely arrested
her, her federal and state claims . . . based on the alleged false arrest fail as a matter of law.”);
Pierre-Antoine, 2006 WL 1292076, at *4 (“It is undisputed . . . that [the plaintiff] possessed a
weapon in open view, at least up until the time the struggle began, and that he resisted [the
lawful] arrest. Some use of force, therefore, was clearly justified.”). Therefore, Pelayo and
Pierre-Antoine are distinguishable from this case.
22

alternatively, if Plaintiff’s speech was protected, the speech occurred in a non-public forum.
(Defs. Objs. 6–8.)
To prevail on a First Amendment retaliation claim, a plaintiff must show that: (1) he has a
right protected by the First Amendment; (2) the defendant’s actions were motivated or
substantially caused by his exercise of that right; and (3) the defendant’s actions caused an injury.
Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (citation omitted); see also Maco
v. Baldwin Union Free Sch. Dist., --- F. Supp. 3d ---, ---, 2017 WL 1373425, at *3 (E.D.N.Y. Apr.
13, 2017) (“Private citizens alleging retaliation for their criticism of public officials are generally
required to show that they engaged in protected speech, persons acting under color of state law
took adverse action against them in retaliation for that speech, and the retaliation resulted in
actual chilling of their exercise of their constitutional right to free speech.” (citation and internal
quotation marks omitted)).
1.

Protected speech

Defendants’ argument that Plaintiff’s speech was not protected implicates three issues —
the nature of the forum, the content of the speech and the government’s ability to restrict the
content of speech based on the forum. (Defs. Objs. 6–8.) The Court addresses each below.
Determining whether an individual’s speech is protected is largely dependent on the
nature of the forum in which the speech occurs. See R.O. ex rel. Ochshorn v. Ithaca City Sch.
Dist., 645 F.3d 533, 539 (2d Cir. 2011) (“The level of scrutiny applied to a restriction on speech
depends upon the nature of the forum in which the speech occurs.”); Travis v. Owego-Apalachin
Sch. Dist., 927 F.2d 688, 691–92 (2d Cir. 1991) (“Government may [] properly regulate []
access” to its buildings to engage in expressive speech “depending on the nature of the property
at issue.” (citation omitted)). Courts in the Second Circuit have held that comments criticizing

23

the conduct of state law enforcement officers that occur in a public forum constitute expressive
speech, which is protected under the First Amendment. See Kuck v. Danaher, 600 F.3d 159,
167–68 (2d Cir. 2010) (holding that the criticism of the acts of a state department of public safety
officer constituted protected speech); Gogol v. City of New York, No. 15-CV-5703, 2017 WL
3449352, at *9 (S.D.N.Y. Aug. 10, 2017) (finding that the plaintiff’s statements criticizing a
police officer for failing to exercise “courtesy and respect” constituted protected speech);
Thomas v. City of New York, No. 05-CV-6449, 2008 WL 3456173, at *5 (S.D.N.Y. Aug. 12,
2008) (finding disputed issues of fact as to whether the plaintiff’s speech was protected where
the plaintiff made potentially critical statements about the officer’s conduct prior to the officer
issuing the plaintiff a summons). However, a government owned building, such as a courthouse,
is a non-public forum in which the government may restrict an individual’s speech so long as the
restriction is not aimed at suppressing the content of the speech and is reasonably related to the
forum’s purpose. See Susman v. Crawford, 548 F.3d 195, 199 (2d Cir. 2008) (“[R]estrictions on
speech in non-public fora must be reasonable in light of the purpose of the forum and reflect a
legitimate government concern.” (citation and internal quotation marks omitted)); Huminski v.
Crosones, 396 F.3d 53, 91 (2d Cir. 2005) (holding that “the interior of a courthouse is not a
public forum”); Travis, 927 F.2d at 692 (“In nonpublic forums, government may enforce both
time, place, and manner restrictions and reasonable content-based regulations on speech.
However, it may not suppress expression merely because it opposes the speaker’s point of view.”
(citation and internal quotation marks omitted)).
Plaintiff presents sufficient allegations to establish that he engaged in protected speech
and that the court officers’ actions in response were based on the content of his speech, rather
than a legitimate government concern. When Court Officer Williams informed Plaintiff that he

24

had to check his recorder at the security desk, Court Officer Williams gave Plaintiff a property
check-in form to fill out. (TAC ¶¶ 18–19.) Court Officer Williams rushed Plaintiff to either sign
the form or leave the courthouse. (Id. ¶ 19.) Plaintiff told Court Officer Williams that he should
not “get an attitude” due the length of time it was taking Plaintiff to read the form, and after
Court Officer Williams responded by threatening Plaintiff, Plaintiff asked to speak to a
supervising court officer. (Id. ¶¶ 19–20.) Court Officer Williams then told Court Officer Spinelli
that Plaintiff was causing trouble, which resulted in Court Officer Spinelli dragging Plaintiff out
of the courthouse by his arm. (Id. ¶¶ 24–25.) Once outside the courthouse, Plaintiff asked Court
Officer Spinelli to call a supervising court officer. (Id. ¶¶ 26.) Court Officer Spinelli called
Court Officer Alfieri. (Id. ¶ 27.) After Court Officer Alfieri arrived, Court Officer Spinelli told
Court Officer Alfieri that Plaintiff was causing trouble. (Id. ¶¶ 27–28.) Court Officer Alfieri
instructed Court Officer Spinelli to reenter the courthouse with Plaintiff and issue Plaintiff a
summons for disorderly conduct, and when Plaintiff replied that he wanted to go home, Court
Officer Alfieri pinned Plaintiff against the wall and told him that he would be handcuffed and
forced to reenter the courthouse to receive a summons if he did not comply. (Id. ¶¶ 28–29.)
Plaintiff complied, reentered the courthouse and received a summons for disorderly conduct.
(Id. ¶¶ 29, 36.)
Based on the foregoing facts, the Court rejects Defendants’ argument that Plaintiff’s
speech was not protected. Making reasonable inferences in Plaintiff’s favor, Plaintiff’s
comments that Court Officer Williams should not “get an attitude” and his requests to speak to a
supervising officer are criticisms of the court officers’ conduct that qualify as protected speech.
See Gogol, 2017 WL 3449352, at *9 (finding that the plaintiff’s statements criticizing a police
officer for failing to exercise “courtesy and respect” constituted protected speech); Thomas, 2008

25

WL 3456173, at *5 (finding a disputed issue of fact as to whether the plaintiff’s speech was
protected where the plaintiff made potentially critical statements about the officer’s conduct prior
to the officer issuing the plaintiff a summons). In addition, Defendants present no arguments as
to how the court officers’ responses to Plaintiff’s comments were reasonably related to a
legitimate government concern pertaining to the purpose of the forum, and not just retaliatory
acts based on the content of Plaintiff’s speech. See Zalaski v. City of Hartford, 462 F. App’x 13,
15 (2d Cir. 2011) (“If [the defendant-officer’s] motive for the arrest was message suppression
rather than content-neutral law enforcement, no reasonable officer could think that his actions
did not violate the First Amendment, regardless of the forum.” (citing Hotel Emps. & Rest. Emps.
Union, Local 100 of N.Y., N.Y. & Vicinity v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d
534, 544–46 (2d Cir. 2002))). Accordingly, the Courts finds that Plaintiff’s comments were
protected speech and the court officers’ actions in response were based on the speech’s content.
2.

Causation

Defendants argue that even assuming Plaintiff’s comments were protected speech,
Plaintiff fails to establish that the allegedly retaliatory seizure was motivated or substantially
caused by Plaintiff’s protected speech because there were “intervening events” between the
protected speech and the seizure. (Defs. Objs. 7–8.)
The second element of a First Amendment retaliation claim requires a plaintiff to show
that “the defendant’s actions were motivated or substantially caused” by the plaintiff’s First
Amendment activity. Dorsett, 732 F.3d at 160. To establish a “causal link between [] protected”
speech and [a] retaliatory action, a plaintiff may, “of course, rely on circumstantial evidence to
support the required inference of retaliatory intent.” Gronowski v. Spencer, 424 F.3d 285, 293
(2d Cir. 2005) (citation omitted); Berg v. Kelly, No. 12-CV-3391, 2016 WL 4257525, at *4

26

(S.D.N.Y. Aug. 10, 2016) (“Circumstantial evidence of retaliatory intent may supply the causal
connection between a plaintiff’s protected speech and a defendant’s [retaliatory] action.”
(citing Gronowski, 424 F.3d at 293)). Such circumstantial evidence includes a close temporal
relationship between the protected speech and the retaliatory action. See Hampshire Recreation,
LLC v. Village of Mamaroneck, 664 F. App’x 98, 100 (2d Cir. 2016) (holding, in First
Amendment retaliation case, that a “causal connection [is] established where protected activity is
closely follow in time by [an] adverse action” (internal quotation marks omitted) (quoting Cifra
v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001))); Gogol, 2017 WL 3449352, at *9 (finding,
in a First Amendment retaliation case, that “temporal proximity is strong evidence of improper
intent” (citation omitted)).
Plaintiff’s allegations establish sufficient circumstantial evidence of retaliatory intent
based on temporal proximity. Plaintiff’s allegations show the court officers’ retaliatory intent
based on the following sequence of events: Plaintiff commented on Court Officer Williams’
negative attitude toward Plaintiff while Plaintiff was reading the check-in form, (TAC ¶ 19);
Court Officer Williams responded with a threat that he will “punch [Plaintiff] in the face,”
(id. ¶ 20); Plaintiff requested to speak to Court Officer Williams’ supervising officer, (id. ¶ 24);
Court Officer Williams told Court Officer Spinelli that Plaintiff was “causing trouble,” (id.);
Court Officer Spinelli dragged Plaintiff outside of the courthouse, (id. ¶ 25); Plaintiff requested
to speak to Court Officer Spinelli’s supervising officer, (id. ¶ 26); Court Officer Spinelli radioed
Court Officer Alfieri, who arrived shortly thereafter, (id. ¶ 27); Court Officer Spinelli told Court
Officer Alfieri that Plaintiff was “causing trouble,” (id. ¶ 28); Court Officer Alfieri instructed
Court Officer Spinelli to issue Plaintiff a summons for disorderly conduct, (id.); Plaintiff said
that he will go home instead of receiving a summons, (id.); Court Officer Alfieri pinned Plaintiff

27

to a wall and then told him he will be handcuffed if he did not reenter the courthouse to receive
the summons, (id. ¶ 29); Plaintiff complied, reentered the courthouse and received a summons
for disorderly conduct, (id. ¶¶ 29, 36). Contrary to Defendants’ assertions of “intervening
events” between the protected speech and the seizure, Plaintiff’s allegations establish a close
temporal relationship between Plaintiff’s protected speech and the unlawful seizure. See Gogol,
2017 WL 3449352, at *9 (finding that retaliatory intent was established because “there was
exceedingly close temporal proximity between [the] [p]laintiff’s statement and the alleged
retaliation” where an officer arrested the plaintiff shortly after she stated that the officer should
exercise “courtesy and respect”); Thomas, 2008 WL 3456173, at *5 (finding sufficient indicia of
retaliatory intent where the defendant police officers questioned the plaintiff and subsequently
arrested the plaintiff based on what appeared to be their displeasure with comments the plaintiff
made during the questioning).
3.

Injury

The third element of a First Amendment retaliation claims requires a plaintiff to show
that “the defendant’s actions caused an injury.” Dorsett, 732 F.3d at 160. In the context of a
First Amendment retaliation claim based on a plaintiff’s speech to an officer that led to a seizure,
a plaintiff cannot establish an injury if the seizure was based on probable cause. See Goldoner v.
City of New London, 443 F. App’x 622, 624 (2d Cir. 2011) (holding that “probable cause is as a
complete defense to a claim of retaliatory arrest” (citing Mozzochi v. Borden, 959 F.2d 1174,
1179 (2d Cir. 1992))); see also Abeyta v. City of New York, 588 F. App’x 24, 25 (2d Cir. 2014)
(“Because . . . defendants had probable cause to detain plaintiff, . . . plaintiff’s challenge to the
[d]istrict [c]ourt’s dismissal of his First Amendment retaliation claim is without merit.” (citation
omitted)). If, however, the seizure was not supported by probable cause, the seizure satisfies the

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injury element of a First Amendment retaliation claim. See Zalaski, 462 F. App’x at 15
(affirming a district court’s decision denying summary judgment as to the plaintiff’s First
Amendment retaliation claims because of disputed issues of fact regarding probable cause to
arrest); Gogol, 2017 WL 3449352, at *9 (“Since a reasonable factfinder . . . could find that [the
plaintiff] was arrested and charged with . . . disorderly conduct in retaliation for the exercise of
her First Amendment rights, she has demonstrated injury sufficient to survive summary
judgment.”); Berg, 2016 WL 4257525, at *4 (finding that “as to the third element, the alleged
injury is the detention itself, which clearly constitutes a concrete harm” for “a claim for First
Amendment retaliation”); Adams v. City of New York, No. 15-CV-6741, 2016 WL 1169520, at *4
(S.D.N.Y. Mar. 22, 2016) (denying the “defendants’ motion to dismiss [the plaintiff’s] First
Amendment claim” because the plaintiff “ha[d] a plausible claim that his arrest was not
supported by probable cause or arguable probable cause”); Thomas, 2008 WL 3456173, at *5
(denying the defendants’ motion for summary judgement as to the plaintiff’s First Amendment
retaliation claim because there were disputed issues of fact as to probable cause).
Defendants do not argue that Plaintiff failed to establish an injury, and indeed, based on
the foregoing authority and considering that Defendants conceded that Plaintiff’s allegations as
to his false arrest claims against the court officers are sufficient to state a claim,10 (see R&R 15–
23; Defs. Objs.), such an argument would be meritless. Therefore, the Court finds that Plaintiff
establishes the injury element.
Accordingly, the Court denies Defendants’ motion to dismiss Plaintiff’s First Amendment
retaliation claim.

10

See note 8, supra.
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III. Conclusion
For the foregoing reasons, the Court adopts the R&R in its entirety. The Court denies
Plaintiff’s motion to amend. The Court (1) GRANTS: Defendants’ motion to dismiss Plaintiff’s
(a) federal excessive force claims against Court Officers Spinelli and Williams, (b) federal
malicious abuse of the criminal process claims against the court officers, (c) federal malicious
prosecution claims against the court officers, (d) federal fabrication of evidence claims against
the court officers, (e) federal selective enforcement claims against the court officers, (f) failure to
intervene claims against the court officers, (g) unconstitutional defamation claims against the
court officers, and (h) federal and state conspiracy claims against the officers; and (2) DENIES:
Defendants’ motion to dismiss (a) Plaintiff’s claims against Court Officers Spinelli and Williams
for lack of personal jurisdiction, (b) state and federal false arrest claims against the court officers,
(c) federal excessive force claim against Court Officer Alfieri, (d) state assault and battery claims
against the court officers, (e) state malicious prosecution claims against the court officers, and
(f) First Amendment retaliation claims against the court officers.
The Court grants Plaintiff an extension time to effect proper service on Court Officers
Spinelli and Williams. Plaintiff shall properly serve Court Officers Spinelli and Williams within
thirty (30) days of the date of this Memorandum and Order and file proof of such service with
the Clerk of Court. If Plaintiff fails to effect proper service on Court Officers Spinelli and
Williams within the time specified, Defendants may renew their motion to dismiss for failure of
proper service as to Court Officers Spinelli and Williams.

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The Court dismisses all of Plaintiff’s claims against Moody and dismisses her from the
action. The Clerk of Court is directed to amend the docket accordingly.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: September 26, 2017
Brooklyn, New York

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