May v. Levy et al

Filing 37

ORDER. For the reasons stated in the attached Memorandum and Order, the Court ADOPTS in part and MODIFIES in part Magistrate Judge Bloom's well-reasoned 23 Report and Recommendation, and GRANTS in part and DENIES in part Defendants' 17 , 22 motions to dismiss. The Court DENIES Nassau County Defendants' Rule 12(b)(5) motion to dismiss for insufficient service of process, adopts Magistrate Judge Bloom's alternative recommendation that the time for service be extended, an d GRANTS a 60-day extension of time for pro se Plaintiff to complete proper service. The Court GRANTS Nassau County Defendants' Rule 12(b)(1) motion to dismiss all claims against Defendant Levy for lack of subject matter jurisdiction. T he Court GRANTS Nassau County Defendants' and Defendant Neefus's Rule 12(b)(6) motions to dismiss Plaintiff's false arrest claims. The Court DENIES Nassau County Defendants' and Defendant Neefus's Rule 12(b)(6) motions to di smiss Plaintiff's excessive force claims as to Defendants Holmes and Lee, and GRANTS the motions to dismiss as to Defendants Oswald and Neefus. Within fourteen days of this Memorandum and Order, Nassau County Defendants shall provide via ECF, and with service at Plaintiff's correct address, the correct addresses for completion of service on any remaining defendant, including business and/or residential addresses where the summons and complaint may be properly delivered and maile d. Magistrate Judge Bloom is respectfully requested to issue an order-and hold a conference if necessary-determining which defendants must still be served, where they must be served and by what methods Plaintiff can properly effect service, and by w hat date. Plaintiff shall have sixty days to complete proper service from the date of Magistrate Judge Bloom's order.The Clerk of Court is respectfully directed to terminate Defendants Levy, Oswald, and Neefus from the case and serve a copy of this Memorandum and Order on pro se Plaintiff and note service on the docket by March 8, 2023. Ordered by Judge Kiyo A. Matsumoto on 3/7/2023. (AA)

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 1 of 30 PageID #: 593

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
SERENA A. MAY,
MEMORANDUM AND ORDER
Plaintiffs,
21-cv-3586(KAM)(LB)
-againstSTUART LEVY, EDWIN J. HOLMES,
CHRISTOPHER LEE, RYAN OSWALD, and
VINCENT NEEFUS.
Defendants.
--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Serena A. May (“Plaintiff”), acting pro se, brings
the above-captioned action against Defendants Stuart Levy, Edwin
Holmes,

Christopher

Defendants”),

and

Lee,
Vincent

Ryan

Oswald

Neefus

(the

(together,

“Nassau

County

“Defendants”),

alleging false arrest and excessive force claims under 42 U.S.C.
§ 1983.1 (See ECF No. 1, Complaint (“Compl.”)).

Currently before

the Court are Defendants’ motions to dismiss under Federal Rules
of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6).

(ECF No. 17,

Nassau County Defendants’ Motion to Dismiss; ECF No. 22, Defendant

The form complaint states the following: ““Color of Law, 42 U.S.C. 1983, 4th,
14, 13, 9, 6, False Charges, False Arrest, Assault, malistation [sic],
kidnapping, deprivation of rights.” (ECF No. 1, Compl. at 5.) The alleged
facts, however, appear to correspond to false arrest claim and excessive force
claims. (Id. at 9-10.) Because a “document filed pro se is to be liberally
construed,” and as discussed in detail below, the Court construes Plaintiff’s
complaint as bringing false arrest and excessive force claims.
Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks, italics,
and citations omitted).
1

1

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 2 of 30 PageID #: 594

Neefus Motions to Dismiss.)

On May 12, 2022, Magistrate Judge

Lois Bloom issued a report and recommendation (“R&R”) recommending
that Defendants’ motions be granted in part and denied in part.
(ECF No. 23, R&R at 1.)

Defendants timely filed objections.

(ECF

No. 24, Nassau County Defendants’ Objections (“Nassau Cnty. Defs.
Objs.”); ECF No. 25, Defendant Neefus’s Objections (“Def. Neefus
Objs.”).)
forth

Plaintiff did not file objections.

below,

the

Court

ADOPTS

in

part

and

For the reasons set
MODIFIES

in

part

Magistrate Judge Bloom’s well-reasoned R&R and GRANTS in part and
DENIES in part Defendants’ motions to dismiss.
BACKGROUND
For the purpose of deciding Defendants’ motions to dismiss,
the Court accepts as true the factual allegations in the complaint
and draws all reasonable inferences in Plaintiff’s favor.

See

Melendez v. City of New York, 16 F.4th 992, 1010 (2d Cir. 2021).
The Court may also consider “matters of which judicial notice may
be taken,” including judicial records, if relied upon “not for the
truth of the matters asserted in the other litigation, but rather
to establish the fact of such . . . filings.”

Kramer v. Time

Warner Inc., 937 F.2d 767, 773, 774 (2d Cir. 1991) (“The practice
of taking judicial notice of public documents is not new.”).
I.

Factual Background

Plaintiff commenced this action on May 10, 2021, against
Defendants Stuart Levy, Edwin J. Holmes, Christopher Lee, Ryan
2

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 3 of 30 PageID #: 595

Oswald, Vincent Neefus, and C. Lange Margoline.2

Defendant Holmes

is a Nassau County detective assigned as an investigator in the
Nassau

County

Oswald

are

District

deputy

Attorney’s

sheriffs

in

Office;

the

Defendants

Nassau

County

Lee

and

Sheriff’s

Department; Defendant Levy is an Assistant District Attorney in
the Nassau County District Attorney’s Office; and Defendant Neefus
is a Suffolk County detective assigned as an investigator in the
Suffolk County District Attorney’s Office.

(ECF No. 1, Compl., at

26-27; ECF No. 17-10, Nassau County Defendants Memorandum of Law
(“Nassau Cnty. Defs. Mem.”) at 1, 3); ECF No. 22-5, Defendant
Neefus Memorandum of Law (“Def. Neefus Mem.”) at 1.)
Plaintiff first alleges that on November 20, 2020, Defendant
Lee falsely pretended to be “the bank” and took pictures of her
home and car.

(ECF No. 1, Compl. at 6.)

Plaintiff then alleges

that on December 22, 2020, at 7:01 a.m., Defendants Holmes, Lee,
Oswald, and Neefus appeared at Plaintiff’s home and placed her
under arrest, without a warrant or probable cause.

(Id. at 9.)

During the arrest, Defendant Lee allegedly “grabbed [her] and held
[her] against [her] car”; Defendant Oswald allegedly pointed a gun
at her and stated, “do not move”; Defendant Neefus allegedly
blocked her car with his truck and screamed “Do not move Bitch”;
and Defendant Holmes allegedly beat her before handcuffing her.

2

Plaintiff voluntarily dismissed
(01/25/2022 Minute Entry.)

her

3

claims

against

Defendant

Margoline.

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 4 of 30 PageID #: 596

(Id. at 5-6, 9-10.)

Defendant Holmes also allegedly knocked her

front tooth loose, which later had to be removed by a doctor as it
“could

not

be

saved,”

and

touched

her

sexually,

buducks[sic],” and was “slugging racial words.”
10.)

“grinding

(Id. at 5-6, 9-

Plaintiff alleges that “each officer participated in the

arrest” by holding her down while Defendant Holmes handcuffed her.
(Id. at 5.)
Plaintiff further alleges that

Defendant Neefus appeared

after she was in jail and stated “your[sic] going to Suffolk next
Bitch, I been waiting for you.”

(Id. at 4.)

She also alleges

that Defendant Levy sent “30 men” to her home without a proper
warrant and taped her phone and email.

(Id.)

She includes general

allegations that she was arrested for filing a UCC, which she
alleges is not a crime under New York Law.

(Id.)

She includes as exhibits an unidentified photograph of a
sheriff outside of a home; a blurred screenshot of text; several
photos of law enforcement officers; a receipt for property taken
during her arrest; a letter from Eastchester Town Court indicating
her failure to appear at a court date in November 2019; a criminal
summons for her to appear on January 11, 2021, based on her filing
of

a

fraudulent

UCC

financial

statement

with

the

New

York

Department of State; a May 4, 2021 order vacating a district court
warrant based on a prior failure to appear for arraignment; and a

4

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 5 of 30 PageID #: 597

June 10, 2020 bankruptcy court order discharging Plaintiff’s debt
under 11 U.S.C. § 727.

(Id. at 16-29.)

The Court construes Plaintiff’s allegations to include Fourth
Amendment false arrest and excessive force claims.
II.

Procedural History

Plaintiff filed her complaint on May 10, 2021.

(ECF No. 1,

Compl.; ECF No. 2, Motion to Appoint Counsel; ECF No. 3, Motion to
Proceed in forma pauperis.) Magistrate Judge Bloom issued an order
on July 1, 2021, stating that Plaintiff was required to effect
proper service on Defendants and file proof of service with the
Court by September 27, 2021.

(ECF No. 6, Order.)

On September

27, 2021, Plaintiff filed affidavits of service as to Defendants
Levy, Holmes, Lee, Oswald, and Neefus.
County

Defendants

moved

for

a

pre

(ECF No. 10.)

motion

conference

Nassau
for

an

anticipated motion to dismiss, stating, inter alia, that they were
not properly served:
While two copies of the summons and complaint were
delivered to the District Attorney’s Office where Stuart
Levy and Edwin Holmes are employed, no subsequent
mailing was received consistent with New York CPLR §308
(2). One copy of the summons and complaint was delivered
to the Sheriff’s Department where Deputy Sheriffs
Christopher Lee and Ryan Oswald are employed, but again,
no follow up mailing was received. The return of service
has not been filed with the Court so it cannot be
determined whether plaintiff is taking the position that
service was properly made.
(ECF No. 9.)

At the November 2, 2021 pre motion conference, the

Court ordered Plaintiff to file “affidavits under penalty of
5

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 6 of 30 PageID #: 598

perjury that she mailed a copy of the Summons and the Complaint to
each Defendant, identifying the date of mailing and the address to
which it was sent” by November 5, 2021. (11/02/2021 Minute Entry.)
On

November

8,

2021,

Plaintiff

regarding all Defendants.

filed

affidavits

of

service

(ECF No. 13.)

On January 14, 2022, Nassau County Defendants filed a motion
to

dismiss

under

Federal

Rules

of

Civil

Procedure

12(b)(1),

12(b)(5),3 and 12(b)(6) for lack of subject matter jurisdiction,
failure to effect proper service and for failure to state a claim.
(ECF No. 17-10, Nassau Cnty. Defs. Mem. at 1.)

Regarding service,

Nassau County Defendants argue that the summons and complaint were
delivered to the Nassau County District Attorney’s Office and the
Nassau County Sheriff’s Department, but that Plaintiff did not
subsequently mail a copy, as required by New York law.
6.)

(Id. at

After Magistrate Judge Bloom ordered Plaintiff to provide

affidavits for service, Plaintiff’s affidavits failed to identify
dates or addresses for the mailed copies.
appeared

that

Plaintiff

completed

mail

(Id.)
service

violation of Federal Rule of Civil Procedure 4(c)(2).

Finally, it
herself,

in

(Id. at 7.)

Nassau County Defendants also assert that the Court lacks
subject matter jurisdiction over claims against Defendant Levy.

3

Nassau County Defendants assert their claim for failure to effect proper
service under Federal Rule of Civil Procedure 4. (ECF No. 17-10, Nassau Cnty.
Defs. Mem. at 1.) The Court construes this as arising under Federal Rule of
Civil Procedure 12(b)(5), which allows a motion to dismiss for insufficient
service of process. Fed. R. Civ. P. 12(b)(5).

6

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 7 of 30 PageID #: 599

(Id.)

Defendants note that if Defendant Levy is being sued in his

official capacity as an Assistant District Attorney for wrongful
prosecution, he is protected by New York’s sovereign immunity,
under the Eleventh Amendment.

(Id. at 7-8.)

If Defendant Levy is

being sued in his individual capacity for wrongful prosecution, he
is protected by prosecutorial immunity.
On

the

merits,

Nassau

County

(Id. at 8.)
Defendants

Plaintiff fails to state a false arrest claim.

contend

that

Defendants assert

that Plaintiff was indicted on November 24, 2020, on charges of
(1) offering a false instrument for filing; (2) falsifying business
records;

(3)

obstructing

aggravated harassment.
Indictment.)

government

administration;

and

(4)

(Id. at 2; ECF No. 17-8, Exhibit G,

They contend that these charges were in connection

with Plaintiff’s filling of false UCC Financing Statements—forms
that creditors file with the New York Secretary of State to give
notice that a creditor has an interest in a debtor’s property.
(ECF No. 17-10, Nassau Cnty. Defs. Mem. at 2.)

Nassau County

Defendants also assert that a warrant for Plaintiff’s arrest was
issued by a state court judge on November 24, 2020.
ECF No. 17-7, Exhibit F, Warrant.)

(Id. at 3;

Because the arresting officers

had a valid arrest warrant pursuant to a grand jury indictment,
there is a presumption of probable cause for Plaintiff’s arrest.
(ECF No. 17-10, Nassau Cnty. Defs. Mem. at 10-11.) And because
probable cause is a complete defense to a false arrest claim,
7

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 8 of 30 PageID #: 600

Plaintiff’s false arrest claim must be dismissed.

(Id. at 9, 11.)

Nassau County Defendants assert that they are also protected by
qualified immunity.
Finally, Nassau County Defendants argue that Plaintiff fails
to state an excessive force claim.
not

allege

sufficient

facts

to

They assert that Plaintiff did
have

“facial

plausibility,”

including “when the alleged beating took place or how it took
place.”

(Id. at 12.)

Moreover, they contend that Plaintiff did

not establish Defendants Lee and Oswald’s personal involvement in
the

alleged

beating

besides

defendants participated.

alleging

conclusorily

that

all

(Id. at 12.)

On April 15, 2022, Defendant Neefus moved to dismiss under
Rule 12(b)(6).

(ECF No. 22, Def. Neefus Mem. at 1.)

He requests

that the Court take judicial notice that Plaintiff was arrested
pursuant to an indictment and warrant.4

(Id.).

He argues that

Plaintiff fails to state a § 1983 claim against him: she alleged
only that he came to her house, blocked her car in the driveway
and cursed at her, and cursed at her again later in jail, which
does not amount to a constitutional violation.

(Id. at 4-5.)

He

also reiterates that probable cause is a complete defense to a
false arrest claim, and Plaintiff did not allege facts to rebut
the presumption of probable cause created by the indictment.

4

(Id.

Alternatively, Defendant Neefus requests that the Court convert his motion
into a motion for summary judgment under Federal Rule of Civil Procedure 56.
(ECF No. 22, Def. Neefus Mem. at 1 n.1.)

8

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 9 of 30 PageID #: 601

at 7.)

Defendant Neefus additionally argues that Plaintiff did

not allege his personal involvement in any claim: he is a Suffolk
County detective, whereas the arrest and beating allegedly took
place by Nassau County defendants.

(Id. at 8.)

asserts that leave to amend would be futile.

Finally, he

(Id.)

The Court referred both motions to dismiss to Magistrate Judge
Bloom for an R&R.

(01/25/2022 Order Referring Motion.)

On May

12, 2020, Magistrate Judge Boom issued an R&R recommending that
the Court grant in part and deny in part Defendants’ motions to
dismiss.

(ECF No. 23, R&R.)

Magistrate Judge Bloom recommended

that Nassau County Defendants’ Rule 12(b)(5) motion to dismiss for
improper service be denied: although Plaintiff did not demonstrate
proper service under New York CPLR § 308, the Court may liberally
construe Federal Rule of Civil Procedure 4 where a party has
received actual notice.
pro

se

status,

and

(Id. at 10-13.)

because

of

In light of Plaintiff’s

evidence

that

Nassau

County

Defendants had actual notice of the case—the summons and complaint
were delivered to their places of business and

they shortly

thereafter appeared by counsel and stated an intention to move to
dismiss—and thus would not be prejudiced by proceeding, Magistrate
Judge Bloom recommended that the Court deny the Rule 12(b)(5)
motion and deem service effectuated.

(Id.)

In the alternative,

Magistrate Judge Bloom recommended that the Court grant Plaintiff

9

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 10 of 30 PageID #: 602

an extension of time to properly serve Nassau County Defendants.
(Id. at 13 n.12.)
Magistrate

Judge

Bloom

recommended

that

Nassau

County

Defendants’ Rule 12(b)(1) motion to dismiss for lack of subject
matter jurisdiction be granted as to Defendant Levy.

(Id. at 14.)

Magistrate Judge Bloom recommend that, because a “prosecutor is
entitled

to

absolute

immunity

when

initiating

a

prosecution,

making charging decisions, and presenting evidence” to a grand
jury, Plaintiff’s claims against Defendant Levy—all based on his
charging decisions and subsequent actions—were barred.

(Id. at 15

(citing Bernard v. County of Suffolk, 356 F.3d 495, 503 (2d Cir.
2004)).
Magistrate Judge Bloom also recommended that Defendants’ Rule
12(b)(6) motions to dismiss for failure to state a claim be granted
as to Plaintiff’s false arrest claim.

(Id. at 13.) Magistrate

Judge Bloom took judicial notice that Plaintiff “was arrested
pursuant to a valid warrant following an indictment.”
14.)

(Id. at

Where an arrest occurs pursuant to an arrest warrant and an

indictment, the Court presumes the existence of probable cause,
which is a complete defense to a false arrest claim.
16.)

(Id. at 15-

Because Plaintiff did not allege any facts to overcome the

presumption that the warrant or indictment were based on probable
cause, her false arrest claims should be dismissed. (Id. at 16.)

10

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 11 of 30 PageID #: 603

Magistrate Judge Bloom recommended, however, that Defendants’
motions to dismiss for failure to state a claim be denied as to
Plaintiff’s excessive force claim. (Id. at 20.) Plaintiff alleged
that each defendant was involved in her arrest, and that they
“pointed a firearm at her, slammed her, held her down while she
was handcuffed, and caused damage to her tooth.”
the

motion

to

dismiss

stage,

where

the

(Id. at 20.)

Court

must

At

accept

Plaintiff’s factual allegations as true, Magistrate Judge Bloom
recommended that these allegations sufficed to state a plausible
excessive force claim, which requires a showing that the force
used

was

objectively

circumstances.

unreasonable

in

the

totality

(Id. at 18, 20-21.)

Defendants timely filed objections to the R&R.

(ECF No. 24,

Nassau Cnty. Defs. Objs.; ECF No. 25, Def. Neefus Objs.)
County

of

Defendants

first

object

that

Magistrate

Nassau

Judge

Bloom

improperly applied the requirements of Federal Rule of Civil
Procedure 4(m), which requires service within 90 days after the
filing of a complaint.
6.)

(ECF No. 24, Nassau Cnty. Defs. Objs. at

They argue that the Court does not have the discretion to

consider

service

properly

effectuated

because

Rule

4(m)

only

allows the Court to dismiss the action without prejudice or to
order an extension of time for service.

(Id. at 7.)

Second, they

object to the R&R’s conclusion that Plaintiff stated an excessive
force claim and argue that Plaintiff’s allegations (1) do not
11

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 12 of 30 PageID #: 604

suffice to establish such a claim and (2) do not establish personal
involvement

for

any

defendant

other

than

Defendant

Holmes,

especially as Plaintiff does not allege any injury from
interactions
Defendant

with

Defendants

Neefus

also

Lee

objects

and
to

Oswald.

the

R&R’s

(Id.

at

her
11.)

conclusion

on

Plaintiff’s excessive force claim: he asserts that his presence at
the arrest does not suffice to establish his personal involvement
for a § 1983 claim.

(ECF No. 25, Def. Neefus Objs. at 5-6.)

Plaintiff did not file objections to the R&R.

(ECF No. 26;

06/03/2022 Order; 09/23/2022 Order.)
On June 14, 2022, Nassau County Defendants informed the Court
that Plaintiff had been found incompetent to stand trial in the
underlying

state

criminal

psychiatric facility.

proceeding

and

was

remanded

(ECF No. 27, Motion to Stay.)

to

a

The Court

granted the Defendants’ motion to stay the instant proceedings
until Plaintiff had been found competent and released from the
psychiatric facility.

(06/15/2022 Order.)

On September 23, 2022,

after Nassau County Defendants informed the Court that Plaintiff
had been found competent to stand trial, the Court lifted the stay.
(ECF No. 34, Motion to Reopen; 09/23/2022 Order.)
LEGAL STANDARD
The Court “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1).

28

If a party makes specific and timely written
12

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 13 of 30 PageID #: 605

objections to a magistrate judge’s findings and recommendations,
the Court conducts a de novo review of “those portions of the
report . . . to which objection is made.”
Civ.

P.

72(b)(3).

“Where

no

Id.; see also Fed. R.

objection

to

a

Report

and

Recommendation has been timely made, the district court need only
satisfy itself that there is no clear error on the face of the
record.”

Minto v. Molloy Coll., No. 16-cv-276 (KAM), 2021 WL

804386, at *1 (E.D.N.Y. Mar. 3, 2021) (internal quotation marks
and citation omitted).

Moreover, where “the objecting party makes

only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the [R&R] strictly for
clear

error.”

Id.

(internal

quotation

marks

and

citations

Rule

12(b)(6),

omitted).
To

survive

a

motion

to

dismiss

under

“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)).

“A claim has

facial plausibility when the plaintiff pleads factual content that
allows the

court

to

draw

the

reasonable

inference

defendant is liable for the misconduct alleged.”

Id.

that

the

Although

“detailed factual allegations” are not required, “[a] pleading
that offers labels or conclusions or a formulaic recitation of the

13

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 14 of 30 PageID #: 606

elements of a cause of action will not do.”

Id. (internal

quotation marks and citation omitted).
“A document filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal
quotation marks, italics, and citations omitted).

“Nonetheless,

a pro se complaint must state a plausible claim for relief.”

Darby

v. Greenman, 14 F.4th 124, 128 (2d Cir. 2021) (internal quotation
marks omitted).
DISCUSSION
I.

Insufficient Service of Process

Upon de novo review, the Court agrees with Magistrate Judge
Bloom’s recommendation to deny Nassau County Defendants’ motion to
dismiss under Rule 12(b)(5) for insufficient service of process,
and adopts Magistrate Judge Bloom’s alternative recommendation to
grant Plaintiff additional time to properly serve Nassau County
Defendants.
Under Federal Rule of Civil Procedure 4, a plaintiff must
serve the summons and complaint on a defendant within ninety days
of filing the complaint.
provides

that

defendant,

the

must

Fed. R. Civ. P. 4(c)(1).

Court,

either

upon

“dismiss

a

failure

the

action

to

timely

without

Rule 4(m)
serve

prejudice

. . . or order that service be made within a specified time.”
14

a

Fed.

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 15 of 30 PageID #: 607

R. Civ. P. 4(m).

If a plaintiff can establish good cause for a

failure to serve, however, “the court must extend the time for
service for an appropriate period.”

Id.

The Second Circuit has made clear that district courts may
grant discretionary extensions of time to serve absent good cause.
Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007) (“We
hold that district courts have discretion to grant extensions even
in the absence of good cause.”).

A district court may extend time

to complete service if “after balancing the relative prejudice to
the parties and considering all relevant factors, it concludes
that such an extension is justified.”

Mares v. United States, 627

F. App’x 21, 24 (2d Cir. 2015) (summary order) (citing Zapata, 502
F.3d at 198-99).
The Second Circuit also has stated that when district courts
consider whether to dismiss a complaint for failure to properly
serve, pro se plaintiffs “should be granted special leniency.”
Thrall v. Cent. N.Y. Reg’l Trans. Auth., 399 F. App’x 663, 666 (2d
Cir. 2010) (summary order) (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) (summary
order) (reversing a district court’s decision to dismiss the pro
se plaintiff's complaint for failure of proper service.)

When a

defendant moves to dismiss under Rule 12(b)(5), however, “the
plaintiff bears the burden of proving adequate service.” Dickerson
15

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 16 of 30 PageID #: 608

v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010).
The Court agrees with Magistrate Judge Bloom that Plaintiff
has not demonstrated proper service on Nassau County Defendants
under Rule 4, which provides that a party may follow state law for
serving a summons on an individual defendant.
4(e)(1).

Fed. R. Civ. P.

In New York, state law provides that service may be

effected by delivering the summons and complaint to a defendant’s
place of business and leaving process “with a person of suitable
age” if a copy is also mailed to the defendant’s residence or place
of business.

N.Y. C.P.L.R. § 308(2); see Black v. Vitello, 841 F.

App’x 334, 335 (2d Cir. 2021) (summary order).

Although the

summons and complaint were delivered to Nassau County Defendants’
places of business, Plaintiff has not provided evidence that copies
of

the

documents

Defendants.

were

also

timely

mailed

to

Nassau

County

Plaintiff’s two affidavits of service are, as noted

by Magistrate Judge Bloom, “internally inconsistent” regarding the
addresses, dates, and methods of service.

(ECF No. 23, R&R at 11;

ECF No. 10, Summons Returned; ECF No. 13, Affirmation of Service.)
Further,

Plaintiff’s

documentation

states

that

she

effected

service herself, which violates Rule 4(c)(2), because a party
cannot serve the summons and complaint.
(ECF No. 13 at 1-5.)

Fed. R. Civ. P. 4(c)(2);

Plaintiff also has not submitted evidence to

demonstrate good cause for her failure to properly serve Nassau
County

Defendants.

Nevertheless,
16

Magistrate

Judge

Bloom

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 17 of 30 PageID #: 609

recommended

that

“[i]n

defendants’

actual

light

notice

of

of

plaintiff’s

the

pro

allegations

in

se

status,

plaintiff’s

complaint, and defendants’ appearances through counsel,” the Court
deny

the

motion

to

dismiss

for

defendants to have been served.”

improper

service

and

(ECF No. 23, R&R at 13.)

“deem
In the

alternative, Magistrate Judge Bloom recommended that the Court
grant Plaintiff an extension of time to properly serve Nassau
County Defendants.

(Id. at 13 n.12.)

Nassau County Defendants object that a district court may
only dismiss an action for improper service or extend the time for
proper service.

(ECF No. 24, Nassau Cnty. Defs. Objs. at 7.)

They

argue that Magistrate Judge Bloom erred in recommending that the
Court use its discretion to deem the summons and complaint properly
served.

(Id.)

They further argue that the action should be

dismissed in lieu of extending the time for service.

(Id. at 9.)

Regardless of whether the Court may deem the defendants to be
served, the Court has discretion to extend the time for Plaintiff
to complete service.

Zapata, 502 F.3d at 198-99.

The prejudice

of such an extension to Nassau County Defendants is low—they
concede that the summons and complaint were delivered to their
places of business within the time granted by Magistrate Judge
Bloom’s July 1, 2021 order.
Nassau Cnty. Defs. Mem. at 18.)

(07/01/2021 Order; ECF No. 17-10,
Further, Nassau County Defendants

appeared by counsel one week after Plaintiff filed proof of service
17

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 18 of 30 PageID #: 610

on the docket, and acknowledged that the summons and complaint had
been delivered to their businesses. (ECF No. 10, Summons Returned;
ECF No. 9, Motion.)

Accordingly, Nassau County Defendants had

actual notice of the action.

See Romandette v. Weetabix Co., 807

F.2d 309, 311 (2d Cir. 1986) (“Rule 4 . . . is to be construed
liberally to further the purpose of finding personal jurisdiction
in cases in which the party has received actual notice.” (internal
quotation marks omitted)).

Moreover, given Plaintiff’s pro se

status, Plaintiff “should be granted special leniency regarding
procedural matters,” particularly where, as here, she attempted
service.

Thrall, 399 F. App’x at 666.

Accordingly, the Court agrees with and adopts Magistrate
Judge Bloom’s alternative recommendation to extend the time for
Plaintiff to properly serve Defendants, and denies Nassau County
Defendants’ motion to dismiss under Rule 12(b)(5) for improper
service. Within fourteen days of this Memorandum and Order, Nassau
County

Defendants

shall

provide

via

ECF—and

with

service

at

Plaintiff’s correct address— the correct addresses for completion
of service on any remaining defendant, including business and/or
residential addresses where the summons and complaint may be
properly

delivered

and

mailed.

Magistrate

Judge

Bloom

is

respectfully requested to issue an order—and hold a conference if
necessary—determining which defendants must still be served, where
they must be served and by what methods Plaintiff can properly
18

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 19 of 30 PageID #: 611

effect service, and by what date.

Plaintiff shall have sixty days

to complete proper service from the date of Magistrate Judge
Bloom’s order.
II.

Subject Matter Jurisdiction

Upon clear error review,5 the Court agrees with Magistrate
Judge Bloom’s well-reasoned recommendation to grant Nassau County
Defendants’ motion to dismiss against Defendant Levy under Rule
12(b)(1) for lack of subject matter jurisdiction.
If the Court “determines at any time that it lacks subjectmatter jurisdiction, [it] must dismiss the action.”

Fed. R. Civ.

P. 12(h)(3); see Cortlandt St. Recovery Corp. v. Hellas Telecomms.,
S.A.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015) (holding that a court
may dismiss an action for lack of subject matter jurisdiction under
Rule 12(b)(1) when the court “lacks the statutory or constitutional
power to adjudicate it.” (quoting Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000))).

A plaintiff “bears the burden of

proving subject matter jurisdiction by a preponderance of the
evidence.”

Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d

635, 638 (2d Cir. 2005) (citation omitted).

The parties did not object to Magistrate Judge Bloom’s recommendation to grant
Nassau County Defendants’ motion to dismiss Defendant Levy for lack of subject
matter jurisdiction. See Minto, 2021 WL 804386, at *1 (“Where no objection to
a Report and Recommendation has been timely made, the district court need only
satisfy itself that there is no clear error on the face of the record.” (internal
quotation marks omitted)).
5

19

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Courts generally lack subject matter jurisdiction over § 1983
claims

against

prosecutors

because

the

doctrine

of

absolute

immunity shields prosecutors in their individual capacity from
liability for monetary damages.

See, e.g., Randolph v. Cuomo, No.

20-CV-4719(KAM)(LB), 2020 WL 6393015, at *4 (E.D.N.Y. Nov. 2, 2020)
(“Prosecutors performing duties related to their prosecutorial
function are protected by absolute immunity.”).

Absolute immunity

bars any § 1983 claim based on allegations stemming from the
“prosecutorial activities intimately associated with the judicial
phase of the criminal process.”

Anilao v. Spota, 27 F.4th 855,

864 (2d Cir. 2022) (internal quotation marks and citation omitted).
The “judicial phase” of a criminal prosecution covers a wide range
of activities, including “determining which offenses to charge,
initiating a prosecution, presenting a case to a grand jury, and
preparing for trial.”

Id.

Absolute immunity does not apply only

where there was a “clear and obvious absence of any authority” to
pursue prosecution.

Id. at 868 (citation omitted).

The Court agrees with Magistrate Judge Bloom that Plaintiff
has not demonstrated the Court’s subject matter jurisdiction over
Defendant Levy.

Defendant Levy is an Assistant District Attorney

in the Nassau County District Attorney’s Office, and thus is
protected by absolute immunity in his individual capacity for
actions related to his prosecutorial function.

Randolph, 2020 WL

6393015, at *4; (ECF No. 1, Compl., at 26-27; ECF No. 17-10, Nassau
20

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 21 of 30 PageID #: 613

Cnty. Defs. Mem. at 1, 3.)

Plaintiff alleges that Defendant Levy

incorrectly accepted false charges from Defendant Holmes, and sent
men to her home “without a warrant on bogus charges.”
Compl. at 4.)

(ECF No. 1,

All of Plaintiff’s allegations relate to the

“judicial phase” of a criminal prosecution, and Plaintiff has not
made any allegation supporting a “clear and obvious absence of
authority.”
15, 15 n.14.)

Anilao, 27 F.4th at 864, 869; (ECF No. 23, R&R, at
Accordingly, Plaintiff’s claims against Defendant

Levy in his individual capacity are barred by absolute immunity.
Additionally, if the Court construes Plaintiff’s claims as
brought against Defendant Levy in his official capacity, her claims
for monetary damages are barred by the doctrine of sovereign
immunity under the Eleventh Amendment.

Randolph, 2020 WL 6393015,

at *4 (citing Amaker v. N.Y. State Dept. of Corr. Servs., 435 F.
App’x. 52, 54 (2d Cir. 2011) (summary order).
Accordingly,

the

Court

grants

Nassau

County

Defendants’

motion to dismiss Defendant Levy under Rule 12(b)(1) for lack of
subject matter jurisdiction.
III. False Arrest
Upon clear error review,6 the Court agrees with Magistrate
Judge Bloom’s well-reasoned recommendation to grant Defendants’
motions to dismiss under Rule 12(b)(6) as to Plaintiff’s false
The parties did not object to Magistrate Judge Bloom’s recommendation to grant
Defendants’ motions to dismiss as to Plaintiff’s false arrest claim. See Minto,
2021 WL 804386, at *1.
6

21

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 22 of 30 PageID #: 614

arrest claim.
“Probable cause is a complete defense to a constitutional
claim of false arrest.”
Cir. 2014).

Betts v. Shearman, 751 F.3d 78, 82 (2d

Further, an arrest “pursuant to a warrant issued by

a neutral magistrate is presumed reasonable because such warrants
may issue only upon a showing of probable cause.”
496 F.3d 139, 155–56 (2d Cir. 2007).

Walczyk v. Rio,

To rebut probable cause, a

plaintiff must show that a warrant was obtained by fraud or is
facially invalid.

Johnson v. Dobry, 660 F. App’x 69, 71 (2d Cir.

2016) (summary order).

Probable cause may also be presumed where

an arrest occurs following an indictment.

Manganiello v. City of

New York, 612 F.3d 149, 162 (2d Cir. 2010).

That presumption is

rebuttable only “by evidence that the indictment was procured by
fraud, perjury, the suppression of evidence or other police conduct
undertaken in bad faith.”

Id. (internal quotation marks and

citation omitted.)
Here, Plaintiff alleges that she was arrested without a
warrant or probable cause.

(ECF No. 1, Compl. at 9.)

Defendants,

however, attach as exhibits the November 24, 2020 indictment
charging Plaintiff with offering a false instrument for filing,
falsifying

business

records,

obstructing

government

administration, and aggravated harassment, and the November 24,
2020 arrest warrant.
Exhibit G.)

(ECF No. 17-7, Exhibit F; ECF No. 17-8,

The Court takes judicial notice that Plaintiff was
22

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 23 of 30 PageID #: 615

subject to an indictment and an arrest warrant.7

See Smith v. City

of New York, No. 13-CV-2395(SJ)(RER), 2014 WL 4904557, at *4
(E.D.N.Y. Sept. 30, 2014) (taking judicial notice of an indictment
and an arrest warrant); Johnson v. City of New York, No. 15-CV8195, 2017 WL 2312924, at *2 n.2 (S.D.N.Y. May 26, 2017) (“The
Court takes judicial notice of the state arrest warrant as public
record.”); Bryant v. Rourke, No. 15-CV-5564, 2017 WL 1318545, at
*3 (E.D.N.Y. Feb. 8, 2017), adopted by 2017 WL 1317009 (E.D.N.Y.
Mar. 17, 2017) (“[J]udicial notice may be taken of public records,
including . . . arrest warrants.”).

Because Plaintiff offers no

allegation to rebut the presumption of probable cause for arrest,
based on the warrant and indictment—and in fact, only contests the
existence of the warrant and indictment—Plaintiff cannot prevail
in her challenge to Defendants’ complete defense to her false
arrest claims.
Accordingly, the Court grants Defendants’ motions to dismiss
under Rule 12(b)(6) as to Plaintiff’s false arrest claims.
IV.

Excessive Force

Upon de novo review, the Court adopts in part and modifies in
part Magistrate Judge Bloom’s recommendation to deny Defendants’
motions to dismiss under Rule 12(b)(6) as to Plaintiff’s excessive

On a Rule 12(b)(6) motion to dismiss, the Court may consider “matters of which
judicial notice may be taken.” Kalyanaram v. Am. Ass'n of Univ. Professors at
New York Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014) (quoting
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
7

23

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 24 of 30 PageID #: 616

force claim.
“The Fourth Amendment prohibits the use of unreasonable and
therefore excessive force by a police officer in the course of
effecting an arrest.”
Cir. 2010).
in

violation

Tracy v. Freshwater, 623 F.3d 90, 96 (2d

“Police officers’ application of force is excessive,
of

the

Fourth

Amendment,

if

it

is

objectively

unreasonable in light of the facts and circumstances confronting
them.”

Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.

2004) (internal quotation marks and citation omitted).

“Not every

push or shove, even if it may later seem unnecessary in the peace
of a judge’s chambers, violates the Fourth Amendment.”

Graham v.

Connor, 490 U.S. 386, 396 (1989) (internal quotation marks and
citation omitted).

Instead, courts must pay “careful attention”

to the facts of each case, including “the severity of the crime at
issue,” “whether the suspect poses an immediate threat to the
safety of the officers or others,” and “whether the suspect is
actively resisting arrest or attempting to evade arrest by flight.”
Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019)
(internal quotation marks and alterations omitted).
Plaintiffs must also allege how each defendant was personally
involved in the excessive force alleged.

See Demosthene v. City

of New York, 831 F. App’x. 530, 535 (2d Cir. 2020) (summary order)
(“It is axiomatic that claims under § 1983 for use of excessive
force . . . require personal involvement.” (citing Patterson v.
24

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 25 of 30 PageID #: 617

Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir 2004))).
Here, Plaintiff sufficiently states an excessive force claim
as to Defendant Holmes.

Assuming the allegations to be true, as

the Court must at this stage, Defendant Holmes beat Plaintiff—
knocking her front tooth loose—before he handcuffed her, touched
her sexually, and was “slugging racial words” at her.
Compl. at 9.)

(ECF No. 1,

Given that (1) Plaintiff was arrested for non-

violent offenses, mostly concerning the submission of fraudulent
records; (2) there is no indication that Plaintiff posed a safety
threat to Defendant Holmes or others; and (3) there is no evidence
in her complaint or Defendants’ motions that she attempted to flee
or resist arrest, Defendant Holmes’s alleged beating of Plaintiff
until she lost a front tooth was objectively unreasonable.

See

Cugini, 941 F.3d at 614; see also Hudson v. McMillian, 503 U.S. 1,
10 (1992) (noting that “loosened teeth, and a cracked dental plate,
are not de minimis for Eighth Amendment purposes”); Kilmartin v.
Schaffer,

No.

12-CV-1167

(FJS)(CFH),

2013

WL

5929447,

at

*5

(N.D.N.Y. Nov. 1, 2013), overruled on other grounds by Darnell v.
Pineiro, 849 F.3d 17 (2d Cir. 2017) (stating that “the loss of a
tooth is not a de minimis injury” for purposes of the Fourth
Amendment.)
Nassau County Defendants counter that Plaintiff submitted
only “bare bones allegations” as to Holmes.
Cnty. Defs. Objs. at 10.)

(ECF No. 24, Nassau

Though Plaintiff’s pro se complaint may
25

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 26 of 30 PageID #: 618

not be a model of detailed clarity, her allegations concerning
Defendant Holmes’s behavior, as described above, are unambiguous.
Nassau County Defendants further argue that her allegations of
injury

by

Defendant

Holmes

are

“flatly

contradicted”

by

the

“Physical Condition Questionnaire” that Plaintiff filled out after
her arrest, which states only that Plaintiff’s wrist was injured.
(ECF No. 17-9, Exhibit H.) This document is outside the pleadings,
however, and the Court does not consider it on a motion to dismiss.
Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) (“Generally,
consideration of a motion to dismiss under Rule 12(b)(6) is limited
to consideration of the complaint itself.”).

The Court therefore

agrees with Magistrate Judge Bloom’s recommendation to deny Nassau
County Defendants’ motion to dismiss as to Defendant Holmes.
Plaintiff also alleges sufficient facts to state an excessive
force

claim

against

Defendant

Lee.

Plaintiff

alleges

that

Defendant Lee arrived at Plaintiff’s home, “blocked her car in,”
demanded at gunpoint that Plaintiff get out of her car, slammed
Plaintiff out of her car, and then held her against her car.
No. 1, Compl. at 6, 9.)

(ECF

As in Brown v. City of New York, given

that Plaintiff does not appear to have been evading arrest, a
reasonable officer could have made it “clear that [Plaintiff] could
not leave until she submitted to handcuffing” without resorting to
allegedly

slamming

Plaintiff

out

gunpoint.

Brown v. City of New York, 798 F.3d 94, 100-01 (2d Cir.
26

of

and

against

the

car

at

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 27 of 30 PageID #: 619

2015).
Nassau County Defendants contend that Plaintiff failed to
establish personal involvement for Defendant Lee, and that the
allegations against Lee cannot establish a claim of excessive
force.

(ECF No. 24, Nassau Cnty. Defs. Objs. at 10-11.)

respectfully

disagrees.

Plaintiff

explicitly

The Court

alleges

facts

describing Defendant Lee’s use of force against her, including
that he “slammed” her out of her car and against her car.
No. 1, Compl. at 6.)

(ECF

A reasonable officer could have known that

exercising the force alleged against an individual who does not
appear to have been resisting arrest “employ[ed] a degree of force
beyond that which [was] warranted by the objective circumstances”
of the arrest, at least when assuming the allegations in the
complaint to be true. Cugini, 941 F.3d at 612. The Court therefore
agrees with Magistrate Judge Bloom’s recommendation to deny Nassau
County Defendants’ motion to dismiss as to Defendant Lee.
Plaintiff, however, does not sufficiently allege excessive
force claims against the remaining defendants, Oswald and Neefus.
She does not allege that Defendants Oswald and Neefus touched her
at

all,

except

participated

in

for

a

vague

the

arrest,

allegation
holding

Defendant Holmes handcuffed her.
The

Court

is

wary

of

that

Plaintiff

down”

officer
while

(ECF No. 1, Compl. at 6, 9.)

concluding

that

it

unreasonable for Defendants Oswald and Neefus
27

“each

was

objectively

to assist with

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 28 of 30 PageID #: 620

Plaintiff’s arrest by holding Plaintiff down while she was being
handcuffed during her arrest, given that (1) Plaintiff does not
allege that they did so forcefully; (2) she does not allege that
they

held

her

down

while

she

was

beaten;

and

(3)

her

only

allegation of injury is that her tooth was damaged by Defendant
Holmes’s use of force.

(See ECF No. 1, Compl.); see Rizk v. City

of New York, 462 F. Supp. 3d 203, 222 (E.D.N.Y. 2020) (“It is wellsettled that the right to make a lawful arrest carries with it the
right to use reasonable force to effectuate that arrest.” (internal
quotation marks and alterations omitted)); see also Graham, 409
U.S. at 396 (“Not every push or shove . . . violates the Fourth
Amendment.”).

Plaintiff also alleges that Defendants Oswald and

Neefus shouted at her and called her demeaning names, but “even
excessive rudeness . . . is not force, let alone excessive force.”
Brown, 798 F.3d at 105–06 (Jacobs, J., dissenting).
Accordingly, the Court respectfully declines to adopt Judge
Bloom’s

recommendation

against

Defendants

regarding

Oswald

and

the

Neefus,

excessive
and

force

grants

claims

Defendants’

motions to dismiss Plaintiff’s excessive force claims against
Defendants Oswald and Neefus.
CONCLUSION
For the forgoing reasons,

the

Court ADOPTS in part

and

MODIFIES in part Magistrate Judge Bloom’s well-reasoned R&R, and
GRANTS in part and DENIES in part Defendants’ motions to dismiss.
28

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The Court DENIES Nassau County Defendants’ Rule 12(b)(5) motion to
dismiss

for

insufficient

service

of

process,

adopts

the

recommendation that the time for service be extended, and GRANTS
a 60-day extension of time for pro se Plaintiff to complete proper
service.

The Court GRANTS Nassau County Defendants’ Rule 12(b)(1)

motion to dismiss all claims against Defendant Levy for lack of
subject matter jurisdiction.
Defendants’

and

Defendant

The Court GRANTS Nassau County

Neefus’s

Rule

dismiss Plaintiff’s false arrest claims.

12(b)(6)

motions

to

The Court DENIES Nassau

County Defendants’ and Defendant Neefus’s Rule 12(b)(6) motions to
dismiss Plaintiff’s excessive force claims as to Defendants Holmes
and Lee, and GRANTS the motions to dismiss as to Defendants Oswald
and Neefus.

Within fourteen days of this Memorandum and Order,

Nassau County Defendants shall provide via ECF, and with service
at

Plaintiff’s

completion
business

of

correct
service

and/or

address,
on

any

residential

the

correct

remaining

addresses

addresses

defendant,

where

complaint may be properly delivered and mailed.

the

for

including

summons

and

Magistrate Judge

Bloom is respectfully requested to issue an order—and hold a
conference if necessary—determining which defendants must still be
served, where they must be served and by what methods Plaintiff
can properly effect service, and by what date.

Plaintiff shall

have sixty days to complete proper service from the date of
Magistrate Judge Bloom’s order. The Clerk of Court is respectfully
29

Case 1:21-cv-03586-KAM-LB Document 37 Filed 03/07/23 Page 30 of 30 PageID #: 622

directed to terminate Defendants Levy, Oswald, and Neefus from the
case and serve a copy of this Memorandum and Order on pro se
Plaintiff and note service on the docket by March 8, 2023.

SO ORDERED
Dated:
March 7, 2023
Brooklyn, New York

HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

30