Syfert v. City of Rome

Filing 4

ORDER and REPORT-RECOMMENDATION re 1 Complaint and 2 MOTION for Leave to Proceed in forma pauperis filed by Mark Syfert. ORDERED that Plaintiff's 2 IFP Application is GRANTED and it is further RECOMMENDED that Plaintiff's 1 compla int be DISMISSED IN ITS ENTIRETY pursuant to 28 U.S.C. 1915 (e)(2)(B)(ii) for failure to state a claim. It is further RECOMMENDED that Plaintiff's time-barred claims, claims for conspiracy based upon the same, and Monell claims be dismissed wit h leave to amend. It is further RECOMMENDED that Plaintiff's claims for malicious prosecution and speedy trial, and claims for conspiracy based upon the same, be dismissed without leave to amend. (Objections to R&R due by 8/24/2017, Case Review Deadline 8/28/2017) Signed by Magistrate Judge Therese Wiley Dancks on 8/7/2017. (Copy served via regular and certified) (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
MARK SYFERT,
Plaintiff,
6:17-cv-0578
(GTS/TWD)

v.

CITY OF ROME,
Defendant.
_____________________________________________
APPEARANCES:
MARK SYFERT
Plaintiff, pro se
422 W. Embargo St. #2
Rome, NY 13440
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for initial review the complaint in this 42 U.S.C. § 1983
civil rights action brought by pro se Plaintiff Mark Syfert against Defendant City of Rome (also
the “City” or “Rome”). (Dkt. No. 1.) Also before the Court is Plaintiff’s application for leave to
proceed in forma paupers (“IFP Application”). (Dkt. No. 2.)
I.

PLAINTIFF’S IFP APPLICATION
A court may grant in forma pauperis status if a party “is unable to pay” the standard fee

for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff’s IFP
Application, the Court finds that Plaintiff meets this standard. Therefore, Plaintiff’s IFP
Application (Dkt. No. 2) is granted.

II.

LEGAL STANDARDS FOR INITIAL REVIEW
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. §

1915(e) directs that when a person proceeds in forma pauperis, “the court shall dismiss the case
at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the
complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989). “An action is frivolous when either: (1) the factual contentions are clearly baseless such
as when the claims are the product of delusion or fantasy; or (2) the claim is based on an
indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437
(2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution
should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse
party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin,
700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not
frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260
(2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua
sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to
state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil

2

Procedure, which sets forth the general rules of pleading, “does not require detailed factual
allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation.” Id.
In determining whether a complaint states a claim upon which relief may be granted, “the court
must accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)
(citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to
raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed “without
giving leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.
1999) (citation and internal quotation marks omitted). An opportunity to amend is not required
where “the problem with [the plaintiff’s] causes of action is substantive” such that “better
pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
III.

PLAINTIFF’S COMPLAINT
Plaintiff brings this action against the City of Rome. (Dkt. No. 1.) Plaintiff alleges a

history of retaliation, favoritism, and abuse of power by Rome employees, including Plumbing
Inspector Mike Mondrick, Codes Officer Patrick Hethington, and Codes Director Mark
Domenico. Id. at 2. 1 Plaintiff alleges the City engaged in acts designed to impede fair

1

Inasmuch as Plaintiff has not sequentially numbered the paragraphs in his complaint, page
references are to the page number assigned by the Court’s CM/ECF electronic docketing system.
3

competition and to undermine the success of his plumbing business, a direct competitor of Mr.
Mondrick’s plumbing business. Id. Rome’s alleged retaliatory acts culminated in a “malicious
prosecution” in October 2013, based on false charges that Plaintiff violated City building codes
at his property located at 422 West Embargo Street, located in Rome, New York (the “property”
or “422 West Embargo Street”). Id. at 2.
A.

Background

Plaintiff alleges the City of Rome has been retaliating against him for decades. Id. at 3.
In 1984, Plaintiff purchased the property at issue, a three story house with an in-law apartment
on the third floor by outbidding Ronnie Cardillo, who at that time was the Codes Director. Id.
In 1991, Plaintiff outbid Mr. Cardillo on another house at a City tax auction. 2 In 1993, Plaintiff
successfully grieved the City’s tax assessment of that house, causing Mr. Cardillo to consider
Plaintiff “an enemy forever [and] passing that resentment on to his successor [Mr.] Domenico.”
Id.
In 1994, Plaintiff was “winning bids for contracts with the City” to replace furnaces as
part of Rome’s neighborhood improvement program. Id. In 1995, Plaintiff became a licensed
master plumber. Id. From 1994 until 2006, Plaintiff “won” most of the advertised plumbing and
heating bids for contracts with Rome. Id. at 3-4.
B.

Mistreatment by Rome Employees

In 2007, Mr. Mondrick was appointed City Plumbing Inspector. Id. at 4. At that time,
Mr. Mondrick and other Rome city officials “changed the way plumbing contracts were bid [on]

The Court notes that Plaintiff’s “Factual Background” section, consists of single paragraph
spanning six typewritten pages. (See Dkt. No. 1 at 3-9.)
2

Actually, Plaintiff outbid Mr. Cardillo’s father because the City’s Corporation Counsel told
Mr. Cardillo that he could not bid on that house. Id.
4

in Rome.” Id. Specifically, instead of bidding on plumbing jobs directly, plumbers were forced
to bid through a contractor. Id. This policy change had a “negative” impact on Plaintiff’s
business and “fostered favoritism.” Id.
In 2008, Plaintiff went to “get a plumbing permit” and Mr. Mondrick “happened to be
behind the counter.” Id. Plaintiff immediately recognized Mr. Mondrick as one of the
individuals that “stole” lumber from his 10 acre plot of wooded land in Lee Center in 2005. Id.
Plaintiff became “very angry.” Id. Plaintiff expressed his concerns to City officials, including
the mayor, that Mr. Mondrick “would abuse his position with the [C]ity to interfere with [his]
business.” However, Plaintiff’s concerns were not taken seriously and he was “brushed” off. Id.
By letter dated July 16, 2009, Mr. Domenico falsely accused Plaintiff of “having an
illegal third floor apartment with separate utility meters that was a city codes violation.” Id.
Plaintiff informed Mr. Domenico that the third floor apartment existed in 1984 when he
purchased the property. Id. Plaintiff asked Mr. Domenico to “look up the minutes” from zoning
board meetings in March and April of 1984, which would “prove” Plaintiff was innocent of code
violations. Id. Mr. Domenico “apparently did not do this; or he did and willfully and
maliciously pursued a criminal complaint against [Plaintiff] for code violations.” Id.
In August 2009, Plaintiff obtained a plumbing permit for construction of a new house in
Rome. Id. Mr. Mondrick inspected and passed Plaintiff’s “rough work.” Id. Plaintiff was to
perform the second phase of the plumbing job in the spring of 2010. Id. However, in September
2010, Plaintiff learned that the second phase of the plumbing contract was completed by
someone else, which Mr. Mondrick inspected and passed. Id. at 5. Plaintiff was “shocked”
because his name was on the permit and “by law” Mr. Mondrick could not inspect a job without
the named permit holder present. Id. As a result, Mr. Domenico issued an “illegal” certificate of

5

occupancy at this house, and Plaintiff was unable to collect his final payment for this contract.
Id.
In October 2009, Mr. Mondrick “abused his authority and public trust” by discriminating
against Plaintiff in requiring Plaintiff to perform a “water test” at a potential job, while not
requiring another plumber, who happened to be Mr. Mondrick’s friend, to perform the water test.
Id.
On January 4, 2011, Plaintiff paid the fee for his Master Plumber’s License. Id. at 6.
However, on or before January 31, 2011, Plaintiff’s name was removed “from the list prepared
by the City of Rome,” which includes all Rome Master Plumbers. Id. As a result, “[i]n the eyes
of the public [Plaintiff] lost [his] Master Plumber’s License.” Id.
By letter dated March 1, 2011, Mr. Mondrick notified Plaintiff that he was revoking
Plaintiff’s Master Plumber’s License and told Plaintiff that he would have to “re-test for the
plumbing exam.” Id. Plaintiff claims Mr. Mondrick had “no legal authority” to revoke his
license because he had paid the fee. Id. By letter dated March 4, 2011, Plaintiff sent Mr.
Mondrick a copy of his cancelled check proving that he had paid his Master Plumber fee. Id. By
letter dated March 9, 2011, Mr. Domenico explained that Mr. Mondrick’s March 1, 2011, letter
merely informed Plaintiff that his insurance had expired. Id. However, according to Plaintiff,
“[t]his is NOT what the letter stated.” Id. (emphasis in original). From January 2011 to May
2014, Plaintiff’s name was not included in Rome Master Plumber’s list, thereby dramatically
impacting his business and income. Id.
In 2012, Plaintiff learned that Mr. Mondrick passed final inspections for two plumbing
contracts, even though Plaintiff was the plumber on each permit in violation of Rome Plumbing
Code Article V, Sec. 14-310(e). According to Plaintiff, that section states: “Upon completion of

6

the entire plumbing installation, the plumber shall apply for the final inspection.” Id. at 7. Thus,
Mr. Domenico must have issued an illegal certificate of occupancy.
In February 2012, Plaintiff went to Rome’s “corporation counsel’s office requesting
clarification of the Rome Plumbing Code,” and was told that Mr. Mondrick, as the Plumbing
Inspector, “could interpret the plumbing codes as he sees fit; even if the interpretation does not
match the black letter of the law as it is written.” Id.
C.

Building Code Violations and Criminal Charges at the Property

In March 2010, Plaintiff repaired the roof of 422 West Embargo Street. Id. at 6. Plaintiff
did not obtain a permit because “you don’t need a permit for repairs.” Id. During this project the
chimney collapsed and “left [a] huge hole.” Id. Plaintiff “decided to the fill the area with a dorm
window.” Id. Plaintiff finished this project in September 2010. Id. Significantly, “[a]t no time
did anyone from codes enforcement contact [Plaintiff] about the roof or the dorm window.” Id.
In April 2012, Plaintiff began installing an air conditioning unit at 422 West Embargo
Street. Id. at 7. In order to move the heavy unit up to the third floor, Plaintiff set up exterior
scaffolding. Id.
On June 6, 2012, Plaintiff received a “stop work” order from Rome City Code
Enforcement for “construction without a permit.” Id. Plaintiff telephoned the number listed on
the stop work order and spoke with the “code officer in charge of [his] neighborhood.” Id.
Plaintiff was informed that the scaffolding “was too high and needed to come down.” Id.
Plaintiff complied and took the scaffolding down “within a week without putting the AC unit on
the roof.” Id. Plaintiff “heard nothing more” from the City. Id.
Thereafter, on November 20, 2013, Plaintiff received Summons #13-232, from Defendant
Rome, signed by Rome City Judge Daniel Wilson, Docket # 56462, which stated:

7

An accusatory instrument having been filed with the Court,
charging you with the offense of: Sect. NYSPMC-107.1.4
UNLAWFUL STRUCTURE; and Sect. NYSPMC-304.2 EXTER
SURFACE NOT MAINTAINED; you are directed to appear in the
City Court of Rome . . . on 3 day of December, 2013 at 9:00 AM.
Failure to will result in a warrant being issued for your arrest.
Dated Nov. 20, 2013.
Id. As instructed, Plaintiff appeared on December 3, 2013, in Rome City Court before Judge
Wilson. Id. Because of Plaintiff’s low income, his request for a court appointed attorney was
granted. Id. Plaintiff’s attorney said that she would “have the case dismissed and told [him]
‘these guys down in codes have way too much time on their hands.’” Id. at 7-8. Plaintiff’s
attorney requested a trial. Id. at 8.
Over the course of the next several months, Plaintiff was in constant fear that he would
“be unjustly thrown in jail by Rome.” Id. Plaintiff appeared for court hearings in January and
April 2014. 3 Id. In June 2014, the prosecutor and Plaintiff’s court appointed attorney said they
were “ready for trial.” Id. However, over a year went by and Plaintiff was not notified of his
trial date. Id. His court appointed attorney would not return his telephone calls. Id. In August
2015, Plaintiff called the Rome City Court Clerk to request a new court appointed attorney. Id.
D.

First Civil Action against City of Rome and “Dismissal” of Criminal Action

On September 24, 2015, Plaintiff commenced a pro se civil rights action in the Northern
District of New York, No. 6:15-cv-01149 (LEK/ATB) (“Syfert I”) against the City of Rome,
alleging: (1) violations of his rights to conduct a legal business without fear of retaliation; (2)
ongoing and never ending work related retaliation, revenge, harassment by Rome’s Code
Department and Mr. Mondrick; (3) failure to conduct a speedy and fair trial; and (4) destruction

3

According to Plaintiff, after Judge Wilson’s retirement on January 1, 2014, Judge Gannon
presided over Plaintiff’s criminal charges. (Dkt. No. 1 at 7.)
8

and tampering of evidence when Mr. Domenico erased city records “proving” Plaintiff’s “total
innocence” of the Class A Misdemeanor (false statements). Syfert I, Dkt. No.1 at 6.
On October 5, 2015, Magistrate Judge Andrew T. Baxter granted Plaintiff’s IFP
Application but recommended dismissal of the complaint pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). Id., Dkt. No. 4 at 20-21. As to the first and second causes of actions, Judge
Baxter found that the following conduct, all of which occurred prior to September 24, 2012, was
barred by the statute of limitations:
Plaintiff claims that Mr. Mondrick issued plaintiff an “expired”
license in 2008; the notice from the Code Department about
plaintiff’s grass was also in 2008; the letter from Mark Domenico
regarding plaintiff’s “three family” residence was in July of 2009;
the alleged “illegal” occupancy was issued by Mr. Mondrick and
Mr. Hetherington in October of 2009; Mr. Mondrick ordering
plaintiff to perform a “water test” when another plumber was not
required to do so was in October of 2009; Mr. Mondrick allegedly
attempting to “remove” plaintiff’s license, and the City of Rome
charging plaintiff for its renewal for failure to pay the fee occurred
in March of 2011; the allegation that plaintiff’s name was thrown
in the trash occurred in March of 2011; and the “stop work” order
for plaintiff’s air conditioning installation occurred on June 6,
2012.
Id. at 13. Judge Baxter found that Plaintiff’s allegations did not amount to a continuing
violation. Id. at 13-14. In addition, Judge Baxter noted that it “appears very unlikely that
[Plaintiff] can state federal constitutional claims based upon the allegations that he has made in
his complaint.” Id. at 20. However, Judge Baxter recommended dismissal of Plaintiff’s first and
second causes of action without prejudice and with leave to file a proposed amended complaint
that addressed the issue of why the statute of limitations should be equitably tolled. Id.
Plaintiff’s third and fourth causes of action related to criminal charges. Syfert I, Dkt. No.
1 at 6. Specifically, Plaintiff alleged that he had been denied a speedy and fair trial, his right to
be innocent until proven guilty had been violated, and Mr. Domenico erased a City record from

9

1984 that would prove Plaintiff’s innocence of the charges. Id. Judge Baxter recommended
dismissal as barred by Younger v. Harris, 401 U.S. 37, 43-54 (1971) and Heck v. Humphrey, 512
U.S. 477 (1944). Id. at 9-10. The court noted, however, that “[i]f Plaintiff obtains dismissal of
the charges prior to trial and conviction, then he may bring an action raising any constitutional
violations that may have preceded the charges.” Id. at 11 n.11.
In this complaint in this action, Plaintiff claims that he brought a copy of Judge Baxter’s
October 5, 2015, Report and Recommendation to the November 2015, hearing before Judge
Gannon, which, indicated that “the three year statute of limitations” had expired. (Dkt. No. 1 at
8.) Judge Gannon “agreed and decided to dismiss Rome’s criminal complaint against [Plaintiff]
because the third floor window dorm was in since before September 2010” and Rome filed the
“code violation complaint in October 2013 AFTER the three year statute expired.” Id. (unaltered
text). However, when Plaintiff asked Judge Gannon for the dismissal in writing, he “got mad” at
Plaintiff and told him not to return in front of him again. Id.
Thereafter, on November 5, 2015, the District Court approved and adopted Judge
Baxter’s October 5, 2015, Report-Recommendation in Syfert I, and ordered Plaintiff’s complaint
dismissed without prejudice and with leave to amend as to Plaintiff’s first and second causes of
action, but without leave to amend as to Plaintiff’s third and fourth causes of action. Syfert I,
Dkt. No. 5. Plaintiff was ordered to file an amended complaint within forty-five days if he
wished to proceed with the action. Id.
However, because Rome “dropped” the criminal charges, Plaintiff did not see any reason
to pursue Syfert I. (Dkt. No. 1 at 8.) On December 22, 2015, judgment in favor of the City of
Rome was entered in Syfert I. Id.

10

E.

“Revival” of the Criminal Action

In January 2016, Plaintiff’s court appointed attorney telephoned Plaintiff to tell him that
his criminal case was “not dismissed” because “[c]ode violations have NO statute of limitations.”
(Dkt. No. 1 at 8.) Plaintiff was advised to “plead guilty” or “go to jail and . . . be fined.” Id.
Plaintiff stated that he wanted to go to trial. Id.
The Rome City Court Clerk told Plaintiff a hearing was scheduled for the first week in
February 2016, and also told Plaintiff “to be there or Judge Gannon would put out an arrest
warrant for me.” Id. During the February 2016, hearing, Judge Gannon told Plaintiff “to get a
permit for the third floor dorm window only to satisfy the case against me.” Id. at 8-9.
On February 17, 2016, Mr. Domenico denied Plaintiff’s permit application. Id. at 9. Mr.
Domenico told Plaintiff that they needed “to do a whole house inspection” from the basement to
the third floor. Id. at 9. Plaintiff refused because “nothing legally warranted such an invasive
inspection of [his] property and invasion of [his] privacy for a permit for a dorm window that
had been installed in 2010.” Id.
During the February 25, 2014, hearing, Plaintiff told Judge Gannon why Mr. Domenico
would not issue the permit. Id. Thereafter, the prosecuting attorney called Mr. Domenico. Id.
“When she came back the judge told me to resubmit the application.” Id. Plaintiff resubmitted
his application for the dorm window on February 29, 2016. Id.
On March 1, 2016, Mr. Domenico telephoned Plaintiff and told him about the City’s
“mistake made in 1989” that indicated Plaintiff’s property was only two stories, instead of three

11

stories. Id. Mr. Domenico advised Plaintiff that he “fixed the mistake so this would never
happen again.” Id. 4
On March 4, 2016, Plaintiff was issued the permit, which indicated Plaintiff’s property
was “a 2.5 story house.” Id. Later that day, Plaintiff brought a copy of the permit to his court
hearing. Id. Plaintiff gave a copy of the permit to Judge Gannon. Id. Judge Gannon stated the
case was “now satisfied” and told Plaintiff that if he “did not get into trouble for six months it
was dismissed like it never happened.” Id. Judge Gannon then “went on to compare [Plaintiff]
to a wife beater. This was humiliating.” Id.
Approximately one week later, a “codes officer came through and inspected only the
third floor dorm window [and] it passed.” Id.
Based on the above, Plaintiff claims that Rome “did nothing to correct or restrain its
employees from . . . egregious acts of retaliation made with intent to harm” Plaintiff, by ruining
his reputation and destroying his business. Id. at 2-3. Plaintiff has “lost [his] health as a result of
Rome’s malicious prosecution.” Id. at 3. Plaintiff has also endured “horrible mental suffering
caused by nearly three years of fear that [he] would be unjustly imprisoned over these false
claims of criminal code violations.” Id.
F.

Causes of Action

Plaintiff has organized his complaint into six causes of action: (1) Discrimination and
Interference with Civil Rights; (2) Civil Action for Deprivation of Rights; (3) Rome Code

4

However, Mr. Domenico did not fix this error. (Dkt. No. 1 at 9.) Eventually, on March 1,
2017, the city assessor “fixed the error that was introduced by Rome employees in the
description of Plaintiff’s house and property for the August 1989 update that excluded the whole
third floor from Plaintiff’s house.” Id. Finally, on March 21, 2017, Plaintiff “received the full
historical legal description of [his house] and property going back to 1957. The original legal
description dated to 1957 clearly states that the third floor was 100% finished and existing before
1957.” Id.
12

Enforcement Policies and Procedurals are Unconstitutional; (4) Rome Plumbing and Plumber
Licensing Policies and Procedures are Unconstitutional; (5) Defendant Denied of a Speedy Trial;
and (6) Malicious Prosecution. Id. at 9-12. Plaintiff seeks significant compensatory and punitive
monetary damages. Id. at 13.
IV.

DISCUSSION
Plaintiff brings this action against the City of Rome pursuant to 42 U.S.C. § 1983. “To

state a valid claim under § 1983, the plaintiff must allege that the challenged conduct (1) was
attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the United States.” Whalen v. Cty.
of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d
Cir. 1994)). Thus, § 1983 does not create any independent substantive right, but rather “provides
a civil claim for damages” to “redress . . . the deprivation of [federal] rights established
elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).
The statute of limitations for a § 1983 action accruing in New York is three years. See
Shomo v. City of N. Y., 579 F.3d 176, 181 (2d Cir. 2009). The statute of limitations begins to run
on the date that the plaintiff’s claims accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007).
Federal law governs the accrual date. Morse v. Univ. of Vt., 973 F.2d 122, 125 (2d Cir. 1992).
Generally, under federal law, a cause of action accrues when “the plaintiff knows or has reason
to know the injury which is the basis of his action.” Covington v. New York, 171 F.3d 117, 121
(2d Cir. 1999) (quoting Singleton v. City of N.Y., 632 F.2d 185, 191 (2d Cir. 1980)). That is so
even if “the full extent of the injury is not then known or predictable.” Fahs Const. Group, Inc.
v. Gray, 725 F.3d 289, 292 (2d Cir. 2013) (per curiam). State law tolling rules determine

13

whether the limitations period has been tolled. See Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir.
1997).
A claim for malicious prosecution accrues when there is a “favorable termination of
criminal proceedings” against the plaintiff. Norwood v. Salvatore, No. 3:12-CV-1025
(MAD/DEP), 2013 WL 1499599, at *15 (Apr. 10, 2013 5) (citations omitted). “Ordinarily, a
claim for abuse of process accrues at such time as the criminal process is set in motion—
typically at arrest—against the plaintiff.” Tirse v. Gilbo, No. 6:15-CV-0987 (GTS/ATB), 2016
WL 4046780, at *16 (N.D.N.Y. July 27, 2016) (quoting Duamutef v. Morris, 956 F. Supp. 1112,
1118 (S.D.N.Y. 1997) (Sotomayor, J.)).
Although the statute of limitations is an affirmative defense, where it is clear from the
face of the complaint that a claim is barred by the applicable statute of limitations, the claim is
subject to dismissal for failure to state a claim on 28 U.S.C. § 1915(e)(2)(B) review. See Pino v.
Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding that a complaint can be dismissed on initial review
based on a defense that appears on the face of the complaint); Syfert I, Dkt. No. 5 (dismissing all
claims barred by the statute of limitations on initial review pursuant to 28 U.S.C. §
1915(e)(2)(B)).
A.

Time-Barred Claims
1.

Mistreatment by Rome

Plaintiff commenced this action on May 24, 2017. (Dkt. No. 1.) Three years prior to the
filing date is May 24, 2014. Any causes of action in Plaintiff’s complaint that accrued prior to
May 24, 2014, are likely barred by the statute of limitations. As was the case in Syfert I, the

5

Copies of unpublished decisions will be provided to Plaintiff in accordance with LeBron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
14

Court assumes that events from 1984 through 2006 are merely an explanation of how the alleged
animosity between Plaintiff and Mr. Mondrick began.
However, most of the incidents listed on Plaintiff’s complaint occurred prior to May 24,
2014. Specifically, Plaintiff claims that (1) Mr. Mondrick was appointed Plumbing Inspector
and changed the way contracts were bid on in Rome in 2007; (2) Mr. Domenico accused Plaintiff
of having an “illegal” third floor apartment in 2009; (3) Mr. Mondrick ordered Plaintiff to
perform a “water test” when another plumber was not required to do so in 2009; (4) Plaintiff’s
name was omitted from Rome’s Master Plumber list in 2011, even though Plaintiff paid the
annual renewal fee; (5) Mr. Mondrick sent a fraudulent letter telling Plaintiff he would have to
“re-test for the plumbing exam” in 2011; (6) Code Enforcement issued a “stop work” order on
his air conditioning installation in 2012; (7) Plaintiff learned that Mr. Mondrick passed final
plumbing inspections on two permits issued to Plaintiff without his knowledge in 2012 and that
Mr. Domenico issued “illegal” certificates of occupancy on those permits; (8) Rome’s
Corporation Counsel told Plaintiff that Mr. Mondrick could interpret the plumbing codes as “he
sees fit” in 2012; (9) Plaintiff was served Summons # 13-232 on November 20, 2013, based on
false criminal charges, and appeared in court on December 3, 2013. 6 All of the conduct
occurring prior to May 24, 2014, is barred by the statute of limitations.
Plaintiff’s allegations do not amount to a “continuing violation.” The continuing
violation doctrine, where applicable, is an “exception to the normal knew-or-should-have-known

6

The Court liberally construes Plaintiff’s claim based on service of the Summons as a claim for
abuse of process. In New York, “a malicious abuse-of-process claim lies against a defendant
who (1) employs regularly issued legal process to compel performance or forbearance of some
act (2) with intent to do harm without excuse of justification, and (3) in order to obtain a
collateral objective that is outside the legitimate ends of the process.” Savino v. City of New
York, 331 F.3d 63, 76 (2d Cir. 2003) (citation omitted). Malicious abuse of criminal process also
supports liability under § 1983. Id. at 76-77 (citation omitted).
15

accrual date” if there is evidence of an ongoing discriminatory policy or practice. Gonzalez v.
Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (quoting Harris v. City of N.Y., 186 F.3d 243, 248 (2d
Cir. 1999)). The continuing violation doctrine does not apply to “discrete acts,” even where
those discrete acts are a part of a “serial violation,” but only to claims that “by their nature accrue
only after the plaintiff has been subjected to some threshold amount of mistreatment.” Id.
(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 (2002)). When the doctrine
applies, the limitations period begins to run when the defendant has engaged in “enough activity
to make out an actionable . . . claim,” as long as the plaintiff has alleged some non-time-barred
acts which contributed to the alleged violation. Id. (quoting Morgan, 536 U.S. at 117; Harris,
186 F.3d at 250) (internal quotations omitted). A continuing violation cannot “be established
merely because the claimant continues to feel the effects of a time-barred discriminatory act.”
Harris, 186 F.3d at 250.
The continuing violation doctrine is generally disfavored in this Circuit. See Town of
Ramopo v. Town of Clarkstown, No. 16 Civ. 2004 (NSR), 2017 WL 782500, at *5 (S.D.N.Y.
Feb. 27, 2017); Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d 269, 292 (S.D.N.Y. 2011)
(“Courts in the Second Circuit and elsewhere have been loath to apply the continuing violation
doctrine absent a showing of compelling circumstances.”) (internal citation, quotation marks, and
brackets omitted).
Here, all of the above incidents occurred prior to May 24, 2014. Even assuming that
Plaintiff was being targeted for mistreatment, each act is a discrete event, including facts
resulting in Plaintiff’s criminal charges. Most of the alleged conduct occurred many months, if
not years, apart. The fact that Rome changed the way plumbers obtained permits in 2007, or that
Plaintiff had to perform a water test in 2009, while another plumber did not, or that Plaintiff was

16

omitted from the Master Plumber list in 2011, or Plaintiff was issued a stop work order for the
air conditioning installation in 2012, or that Plaintiff was issued a Summons based on false
criminal charges in 2013, are all discreet acts, which if actionable at all, would have been
actionable at the time they occurred. To be sure, Plaintiff seems to have issues with Mr.
Mondrick and other employees of the City, but the Court finds no compelling circumstances
present to warrant applying the continuing violation doctrine.
In addition, there is no indication at this time that this is one of those extraordinary cases
in which equitable tolling should apply. Plaintiff has suspected for a long time that Mr.
Mondrick and employees of the City do not like him, and there is no indication that Plaintiff was
prevented from filing a lawsuit. As such, the Court finds equitable tolling does not apply.
Therefore, the Court recommends dismissing Plaintiff’s claims based on the above timebarred events pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
2.

Code Enforcement and Procedures

By his third cause of action, Plaintiff challenges the constitutionality of Rome’s code
enforcement policies and procedures. (Dkt. No. 1 at 11.) Specifically, Plaintiff contends that the
June 6, 2013, stop work order was “exceptionally vague.” Id. Plaintiff claims that City
employees “misinformed [him] over the phone that the problem was the scaffolding; when
apparently it wasn’t.” Id. Plaintiff claims that “[n]o policy was in place to correctly and with
specificity communicate exactly what violated the Rome City Codes; and exactly what I needed
to do to fix the problem.” Id. Nor was there a “follow-up procedure” in place to “make sure”
Plaintiff knew what was expected of him. Id. Plaintiff alleges he “was given no opportunity to
correct the problem . . . because it was never communicated to [him].” Id. According to

17

Plaintiff, it was not until December 3, 2013, when Plaintiff appeared in court that he learned
removing the scaffolding did not resolve the issue. Id.
In addition, Plaintiff claims that Rome’s “code enforcement policies and procedures open
the door for Rome codes officials to arbitrarily and discriminatorily make accusations of code
violations; and then to arbitrarily and discriminatorily enforce and prosecute those violations as
they did with [Plaintiff].” Id. Plaintiff thus claims that “Rome’s code enforcement policies and
procedure (or lack thereof) encourage its employees and officials to abuse the authority of their
offices of public trust to discriminate against the citizens of Rome based on their own biases.”
Id.
Here, Plaintiff’s claim, if actionable at all, accrued on June 6, 2013, when Rome issued
the stop work order or, at the very latest, on December 3, 2016, when Plaintiff appeared in court.
Thus, Plaintiff’s claim became timed-barred on December 3, 2016. The continuation violation
doctrine and tolling are inapplicable to this claim for the same reasons discussed in Section
IV.A.1. Therefore, without addressing the merits, the Court recommends dismissing Plaintiff’s
third cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
3.

Rome’s Plumbing and Plumber Licensing Policies and Procedure

Similarly, by his fourth cause of action Plaintiff claims that “Rome’s policies and
procedures regarding the licensing of plumbers, Rome’s Master Plumber list and the methods
and means used by Defendant Rome to bid and award plumbing contracts are unconstitutional.”
(Dkt. No. 1 at 12.)
As discussed above, Plaintiff claims Mr. Mondrick and other city officials “changed the
way plumbing contracts were bid [on] in Rome” after Mr. Mondrick became the City’s Plumbing
Inspector in 2007. Id. at 4. As a result of this policy change, Plaintiff’s business was negatively

18

impacted. Id. In 2008, Plaintiff expressed his concerns to City officials that Mr. Mondrick could
“abuse his position with the [C]ity to interfere” with Plaintiff’s livelihood. Id. In this instance,
Plaintiff’s claim, if actionable at all, accrued at the latest in 2008, when Plaintiff was aware that
Rome’s change in policy had a negative impact on his business. As such, this claim became
time-barred in 2011.
Plaintiff also claims he was omitted from Rome’s Master Plumber list in 2011, even
though he paid the renewal fee. Id. at 6. As such, Plaintiff’s claim, if actionable at all, accrued
on March 7, 2011, when he received Mr. Mondrick’s letter dated March 1, 2011, stating that
Plaintiff’s plumbing license was being “revoked” for failure to pay the annual renewal fee. Id.
As such, this claim became timed-barred on March 7, 2014.
The Court finds the continuing violation doctrine and equitable tolling are inapplicable to
this claim for the same reasons discussed in Section IV.A.1. Therefore, the Court recommends
dismissing Plaintiff’s fourth cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure
to state a claim.
B.

Malicious Prosecution and Speedy Trial Claims

By his fifth and sixth causes of action, Plaintiff claims that the “manner in which
Defendant Rome prosecuted [him] was malicious and unconscionable.” Id. at 12. Specifically,
Plaintiff claims that he was caused “to suffer nearly three years of constant threats to [his]
liberty.” Id. Plaintiff “lived in fear and extreme mental anguish and distress throughout this
period . . . [which] had a negative impact on [his] over-all health.” Id. Plaintiff claims that he
was “humiliated” and his “reputation has been dragged through the mud for no just cause.” Id.
Plaintiff posits that “prosecution for a code violation that never actually occurred that extends
beyond two years has got to be unconstitutional.” Id.

19

To state a §1983 claim for malicious prosecution, a plaintiff must allege the four
elements of a malicious prosecution claim under New York law—“(1) the initiation or
continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in
plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4) actual
malice as a motivation for defendant’s actions”—as well as a violation of the plaintiff’s rights
under the Fourth Amendment. Manganiello v. City of N.Y., 612 F.3d 149, 160-61 (2d Cir. 2010)
(citations and quotation marks omitted).
As set forth above, a malicious prosecution claim accrues when there is a “favorable
termination of criminal proceedings” against the plaintiff. Norwood, 2013 WL 1499599, at *15.
According to Plaintiff, the criminal charges at issue were “dismissed” on March 4, 2016. (Dkt.
No. 1 at 9.) Although not time-barred, the Court finds Plaintiff’s malicious prosecution claim
fails to state a claim upon which relief may be granted because Plaintiff did not receive “a
favorable termination.”
As discussed above, Plaintiff claims that in February 2016, Judge Gannon “told
[Plaintiff] to get a permit for the third floor dorm window only to satisfy the case against [him].”
(Dkt. No. 1 at 9.) On March 4, 2016, Plaintiff was issued a permit for the dorm window. Id.
Later that day, Plaintiff brought a copy of the permit to Judge Gannon. Id. Judge Gannon told
Plaintiff “the case was now satisfied and [that] if [he did not] get into trouble for six months it
was dismissed like it never happened.” Id. As such, Plaintiff apparently received an
adjournment in contemplation of dismissal. See N.Y. Crim. Proc. Law § 170.55 (McKinney
2017).
However, “[i]t is black letter law that, under New York law, ‘an adjournment in
contemplation of dismissal is not considered to be a favorable termination.’” Lopez v. City of

20

New York, No. 15 Civ. 1650 (NRB), 2017 WL 213243, at *4 (S.D.N.Y. Jan. 10, 2017) (quoting
Shain v. Ellison, 273 F.3d 56, 68 (2d Cir. 2001), abrogated on other grounds by Florence v. Bd.
of Choses Freeholders of Cty. of Burlington, 566 U.S. 318 (2012)); see also Smith-Hunter v.
Harvey, 712 N.Y.S.2d 438, 442 (N.Y. 2000) (“[A]n adjournment in contemplation of
dismissal—a disposition that requires the consent of the prosecutor, the accused and the court—
does not qualify as a favorable termination.”) (internal citation omitted).
Similarly, “in order to adequately plead a claim under § 1983 that he was tried and
convicted in violation of his Sixth Amendment right to a speedy trial, plaintiff must allege that
the criminal proceeding terminated in his favor.” Bussey v. Devane, No. 13-CV-3660
(JS/WDW), 2013 WL 4459059, at *5-6 (E.D.N.Y. Aug. 16, 2013) (citing Montane v. Pettie, No.
10 Civ. 4404 (ARR), 2012 WL 1617713, at *3 (E.D.N.Y. May 8, 2012)); see also Corley v.
Vance, No. 15 Civ. 1800 (KPF), 2015 WL 4164377, at *3 (S.D.N.Y. June 22, 2015) (“As
pleaded, [the plaintiff’s] speedy trial, false arrest, false imprisonment, and malicious prosecution
claims are barred because his criminal proceedings were not terminated in his favor.”) (citing
Heck, 512 U.S. at 484-87); Davis v. New York, No. 90 Civ. 6170(MBM), 2003 WL 1787151, at
*1 (S.D.N.Y. Apr. 2, 2003) (dismissing speedy trial claim where the plaintiff could not show that
his conviction had been invalidated).
Plaintiff also claims that “Defendant Rome prosecuted me for a minor offense from
December 2013 until March 2016[,] well beyond the statutory time limits permitted for
prosecution” under New York Law. (Dkt. No. 1 at 12.) To support this allegation, Plaintiff
relies on Article 30 of New York Criminal Procedure, which provides, in relevant part, “a
prosecution for a misdemeanor must be commenced within two years after the commission
thereof; a prosecution for a petty offense must be commenced within one year after the

21

commission thereof.” N.Y. Crim. Proc. Law §§ 30.10(2)(c)-(d). The Court finds this argument
misplaced. First, based on the facts as pleaded, it appears that the prosecution was in fact
commenced within the statutory period of time. In any event, a violation of New York
Procedural Law “is not in itself a violation of the Constitution or federal law, an element of a [§]
1983 claim.” Fobbs v. City of N.Y., No. 15-cv-6736 (PKC), 2017 WL 2656207, at *3 (S.D.N.Y.
June 19, 2017).
Therefore, the Court recommends dismissing Plaintiff’s fifth and sixth causes of action
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
C.

Conspiracy Claims

By his first and second causes of action, Plaintiff alleges in conclusory fashion that
“Defendant Rome and its employees engaged in a pattern of cooperative activities designed to
interfere in the exercise of [his] civil rights and that these activities in fact did deprive [Plaintiff]
of [his] civil rights under the United States Constitution[.]” Id. at 10; see also id. at 11.
The elements of a conspiracy claim under § 1983 are: (1) an agreement between two or
more state actors or between a state actor and private actor; (2) to act in concert to inflict an
unconstitutional injury on plaintiff; and (3) an overt act committed in furtherance of that goal
causing damages. Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); Ciambriello v. Cty.
of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002).
To state a claim for a conspiracy under § 1985(3), a plaintiff must allege “four elements:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal privileges and immunities under the
laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his
person or property or deprived of any right or privilege of a citizen of the United States.”

22

Robinson v. Allstate Ins. Co., 508 F. App’x 7, 9 (2d Cir. 2013) (summary order) (quoting United
Board of Carpenters v. Scott, 463 U.S. 825, 828-29 (1983)).
Vague and conclusory allegations that defendants have engaged in a conspiracy must be
dismissed. Ciambriello, 292 F.3d at 325; Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003)
(to maintain a conspiracy action, the plaintiff “must provide some factual basis supporting a
meeting of the minds”); Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (“A complaint
containing only conclusory, vague, or general allegations of conspiracy to deprive a person of
constitutional rights cannot withstand a motion to dismiss.”). “[A]lthough a plaintiff does not
need to provide detailed factual allegations, the allegations in the complaint must be ‘enough to
raise a right to relief above the speculative level.’” Flores v. Levy, No. 07-CV-3753, 2008 WL
4394681, at *9 (E.D.N.Y. Sep. 23, 2008) (quoting Twombly, 550 U.S. at 554). Moreover,
conspiracy claims under §§ 1983 and 1985 “fail[] as a matter of law where there is no underlying
constitutional violation.” Tirse, 2016 WL 4046780, at *18.
Here, inasmuch as the Court is recommending dismissal of the predicate claims, the
Court also recommends dismissing Plaintiff’s conspiracy claims under §§ 1983 and 1985. See,
e.g., McGee v. Doe, 568 F. App’x 32, 36, 39 (2d Cir. 2014) (affirming dismissal of malicious
prosecution claim and conspiracy claim predicated upon malicious prosecution where the
plaintiff did not receive a favorable termination); LaRocco v. Jackson, No. 10-CV-01651
(NGG)(LB), 2012 WL 947554, at *3 (E.D.N.Y. Mar. 19, 2012) (“Because [the plaintiff’s] claim
for false arrest and malicious prosecution are dismissed, his claim for conspiracy to commit
those violations must be dismissed as well.”) (citing Curley v. Village of Suffern, 268 F.3d 65, 72
(2d Cir. 2001); Pugh v. New York City, No. 01-CV-0129 (ILG), 2002 WL 398804, at *2 n.4
(E.D.N.Y. Jan. 15, 2002)).

23

Additionally, the Court finds that Plaintiff’s allegations, even when read with the utmost
of special liberality, are impermissibly vague and conclusory to plausibly suggest a conspiracy.
Further, Plaintiff has not alleged any race or class based animus as required to support a § 1985
conspiracy claim. “In this context, ‘class-based animus’ encompasses only those groups with
discrete and immutable characteristics such as race, national origin, and sex.” Martin v. N.Y.S.
Dep’t. of Corr. Servs., 115 F. Supp. 2d 307, 316 (N.D.N.Y. 2000) (citations omitted).
Moreover, even if Plaintiff’s conspiracy claims were found to be more than conclusory
and not time-barred, as pleaded, Plaintiff’s claims would likely be barred by the “intra-agency
conspiracy” doctrine. See Griffin-Nolan v. Providence Washington Ins. Co., No. 5:04-CV-1453
(FJS/GJD), 2005 WL 1460424, at *10-11 (N.D.N.Y. June 20, 2005); see also Little v. City of N.
Y., 487 F. Supp. 2d 426, 441-42 (S.D.N.Y. 2007) (citations omitted). Generally, that doctrine
provides that officers, agents or employees of a single corporate entity are legally incapable of
conspiring together. Everson v. New York City Transit Auth., 216 F. Supp. 2d 71, 76 (E.D.N.Y.
2002) (citation omitted).
Therefore, the Court recommends dismissing Plaintiff’s first and second causes of action
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
D.

Municipality Liability

Plaintiff seeks to hold the City of Rome liable for the above outlined events. However,
his complaint fails to allege facts meeting the standard for establishing municipality liability as
laid out in Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978). In order to set
forth a cognizable claim for municipal liability under § 1983, a plaintiff must plead and prove
that a deprivation of his constitutional rights “was caused by a governmental custom, policy, or
usage of the municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing

24

Monell, 436 U.S. at 690-61); see also Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.
1985) (“The plaintiff must first prove the existence of a municipal policy or custom in order to
show that the municipality took some action that caused his injuries beyond merely employing
the misbehaving officer. Second, the plaintiff must establish a causal connection an ‘affirmative
link’ between the policy and the deprivation of his constitutional rights.”) (citing Oklahoma v.
Tuttle, 471 U.S. 808, 824 n. 8 (1985)). Indeed, municipalities may only be held liable when the
municipality itself deprives an individual of a constitutional right; it “may not be held liable on a
theory of respondeat superior.” Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000).
Here, even liberally construed, Plaintiff has failed to identify or allege any facts showing
the existence of a municipal policy or custom of the City of Rome with regard to any of his
claims. Therefore, the Court recommends that the action be dismissed against the City for
failure to state a claim pursuant to 28 U.S.C. §1915(e)(2)(B). See Plair, 789 F. Supp. 2d at 469
(“Following Iqbal and Twombly, Monell claims must satisfy the plausibility standard[.]”); see
also Meehan v. Kenville, 555 F. App’x 116, 117 (2d Cir. 2014) (summary order) (claim against
municipal entity was properly dismissed under 28 U.S.C. § 1915 for “failure to plausibly allege
that any constitutional violation resulted from a custom, policy or practice of the municipality”);
Irvine v. City of Syracuse, No. 5:14-CV-1565 (TJM/DEP), 2015 WL 2401722, at * 6-7
(N.D.N.Y. May 19, 2015) (dismissing Monell claim pursuant to 28 U.S.C. § 1915(e)(2)(B) for
failure to state a claim); Santagata v. City of N.Y., No. 17-CV-3053 (PKC)(CLP), 2017 WL
2963453, at *2 (E.D.N.Y. July 11, 2017) (same).

25

V.

OPPORTUNITY TO AMEND
Based on the foregoing, the Court recommends dismissal of Plaintiff’s complaint in its

entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief
may be granted.
Generally, when the court dismisses a pro se complaint sua sponte, the plaintiff should be
afforded the opportunity to amend at least once. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (citation omitted). However, leave to re-plead may be denied where any amendment
would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is
present when the problem with plaintiff’s causes of action is substantive such that better pleading
will not cure it. Cuoco, 222 F.3d at 112 (citation omitted); see Ruffolo, 987 F.2d at 131 (“Where
it appears that granting leave to amend is unlikely to be productive . . . it is not an abuse of
discretion to deny leave to amend.”).
For the reasons discussed is Section IV.A., all of Plaintiff’s claims that accrued prior to
May 24, 2014, are barred by the statute of limitations. Nonetheless, a district court typically
should not dismiss claims as time-barred without providing a pro se plaintiff with “notice and
opportunity to be heard” as to whether there might be a meritorious tolling argument or other
reason why the complaint might be considered. See Abbas, 480 F.3d at 640. Therefore, it is
recommended that Plaintiff’s time-barred claims be dismissed with leave to amend. Likewise, it
is recommended that Plaintiff’s conspiracy claims predicated upon his time-barred claims be
dismissed with leave to amend. This by no means suggests that Plaintiff’s time-barred claims are
meritorious, as it appears very unlikely that Plaintiff can state federal constitutional claims based
upon any of the time-barred claims in his complaint.

26

It is also recommended that Plaintiff’s Monell claims be dismissed with leave to amend.
Cuoco, 222 F.3d at 112. See, e.g., Lynch v. Claus, No. 1:13-cv-830 (GLS/CFH), 2013 WL
4455625, at * (N.D.N.Y. Aug. 16, 2013) (affording pro se plaintiff an opportunity to amend
potential Monell claims).
For the reasons set forth in Section IV.B., the problem with Plaintiff’s malicious
prosecution and speedy trial claims is substantive, such that better pleading will not cure it. See
Ruffolo, 987 F.2d at 131. Therefore, it is recommended that Plaintiff’s malicious prosecution
and speedy trial claims be dismissed without leave to amend. See, e.g., LaRocco, 2012 WL
947554, at *3-4 (dismissing malicious prosecution claim with prejudice where the plaintiff could
not plead essential elements of the claim, including favorable discharge). Likewise, it is
recommended that Plaintiff’s conspiracy claims predicated upon his malicious prosecution and
speedy trial claims be dismissed without leave to amend. Id. (dismissing conspiracy claim
predicated on malicious prosecution with prejudice).
WHEREFORE, based on the findings above, it is hereby
ORDERED that Plaintiff’s IFP Application (Dkt. No. 2) is GRANTED; and it is further
RECOMMENDED that Plaintiff’s complaint (Dkt. No. 1) be DISMISSED IN ITS
ENTIRETY pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim; and it is
further
RECOMMENDED that Plaintiff’s time-barred claims, claims for conspiracy based upon
the same, and Monell claims be dismissed with leave to amend; and it is further
RECOMMENDED that Plaintiff’s claims for malicious prosecution and speedy trial,
and claims for conspiracy based upon the same, be dismissed without leave to amend; and it is
further

27

ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on
Plaintiff, along with a copy of the unpublished decision cited herein in accordance with the
Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report. 7 Such objections shall be filed with the Clerk of the
Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1)
(Supp. 2013); Fed. R. Civ. P. 72, 6(a).

Dated: August 7, 2017
Syracuse, New York

7

If you are proceeding pro se and are served with this Order and Report-Recommendation by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Order and Report-Recommendation was mailed to you to serve
and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
28

Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

2013 WL 1499599
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Douglas NORWOOD, III, Leeann Norwood,
D.N., Minor Son of Plaintiffs Norwood, Paul
Orlowski, and Lena Orlowski, Plaintiffs,
v.
Michael SALVATORE, Individually and in his
capacity as Town of Hancock Code Enforcement
Officer and Town of Hancock, Defendants.
No. 3:12–CV–1025 (MAD/DEP).
|
April 10, 2013.
Attorneys and Law Firms
Office Of John V. Janusas, Esq., John V. Janusas, Esq., of
Counsel, Brooklyn, NY, for Plaintiffs.
Mackenzie, Hughes Law Firm, Jeffrey D. Brown, Esq., of
Counsel, Syracuse, NY, for Defendants.

MEMORANDUM–DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
INTRODUCTION
*1 The within action was commenced by unrelated
property owners in the Town of Hancock who claim
that they applied for certificates of occupancy, building
permits and other certificates/permits from defendants.
Plaintiffs commenced this action pursuant to 42 U.S.C. §
1983 alleging that defendants violated of their Fourteenth
Amendment rights to substantive due process and equal
protection. The Norwood plaintiffs also assert a cause
of action for declaratory relief seeking a building permit
and certificate of occupancy. The Orlowski plaintiffs
also assert malicious prosecution claims. Presently before
the Court is defendants' motion to dismiss plaintiffs'
complaint pursuant to Fed.R.Civ.P. 12(b)(5) and 12(b)
(6). (Dkt. No. 8). Plaintiffs have opposed the motion.
(Dkt. No. 12).

COMPLAINT 1
1

The background information is taken from plaintiffs'
complaint and is presumed true for the purposes of
this motion. These are not findings of fact by the
Court.

The Norwood Plaintiffs
In 1988, plaintiffs Douglas Norwood, III, Leeann
Norwood and D.N. (“the Norwood plaintiffs”) purchased
real property, with a home, in the Town of Hancock.
In May 2009, the Norwood plaintiffs' home on said
property was completely destroyed as a result of a fire.
In July 2009, the Norwood plaintiffs contacted defendant
Michael Salvatore (“Salvatore”), the Town of Hancock
Code Enforcement Officer (“CEO”), to apply for a
building permit on said property. Salvatore stated that he
would visit the premises and then advise the Norwood
plaintiffs how to proceed. During the visit, Salvatore
told the Norwood plaintiffs that they needed to perform
“prep” work before a building permit could be issued.
Salvatore demanded a set of plans for the proposed
work, an elevation certificate and engineering plans.
Salvatore also directed the Norwood plaintiffs to install
concrete footings and piers with steel reinforcements.
After the piers were installed, Norwood plaintiffs installed
the floor plan to stabilize the concrete piers. Salvatore
then insisted upon the installation of flooding vents,
which required alterations to some previous work. The
Norwood plaintiffs completed all the aforementioned
work pursuant to Salvatore's direction and repeatedly
asked for the building permit. Salvatore stated that the
permit would be issued when “prep” work was completed.
On September 15, 2009, Salvatore arrived at the property
for one of many inspections and issued additional
demands for “prep” work. The Norwood plaintiffs claim
that Salvatore raised his voice, in the presence of their
fourteen year old son, and allegedly stated, “you really
do not want to rebuild at this location, because Angelo
Valenti is going to have niggers and spics moving
across the street”. The Norwood plaintiffs contend that
Salvatore also yelled, “niggers and spics will be using all
the units that Angelo Valenti was planning to install”.
In September 2009, after all of the “prep” work was
complete, Salvatore told the Norwood plaintiffs to halt

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

construction and stated that he would not issue a building
permit or certificate of occupancy.

Orlowski Plaintiffs
*2 In March 2009, Lena Orlowski contacted Salvatore,
via telephone, about moving a manufactured home from
one location on their property to another. The Orlowski
plaintiffs initiated contact to determine whether a building
permit from the Town of Hancock was necessary to
relocate the home. Salvatore told Orlowski that if the
home was being relocated without being re-occupied or
connected to utilities then no building permit would be
necessary. A few months later, the Orlowski plaintiffs
relocated the home and Salvatore approved the new
location.
In April 2010, the Orlowski plaintiffs received a letter
from Salvatore warning that the relocation of the home
violated the Town of Hancock Local Law # 1, Subdivision
A, “Building without a Permit”. 2 Salvatore allegedly
threatened to fine the Orlowski plaintiffs $1,000.00
per day if the home was not moved. Upon receiving
the correspondence, the Orlowski plaintiffs confronted
Salvatore at the Town of Hancock Building Department
and demanded an explanation. Salvatore responded by
saying, “I don't remember speaking to you by phone” and
asked “do you have anything in writing”. The Orlowski
plaintiffs indicated they did not and Salvatore responded,
“then that's too bad”.
2

The letter was not annexed to plaintiffs' complaint.

In April 2010, the Orlowski plaintiffs received an
appearance ticket charging them with Building without a
Permit. During a September 2010 court appearance, The
Orlowski plaintiffs indicated to Salvatore that the same
requirements did not apply to their neighbor, Joel May,
who installed a manufactured home without a building
permit in 2008, connected it to utilities and has occupied
it ever since without a certificate of occupancy. Salvatore
did not respond. The Orlowski plaintiffs refused to pay the
$600 fine and requested a trial date. On October 25, 2010,
the Orlowski plaintiffs were found not guilty after trial.
On November 16, 2010, Orlowski plaintiffs again received
a letter from Salavatore stating that the relocation of the
home constituted a violation of the Town of Hancock
Local Law # 1 and threatened to fine Orlowski plaintiffs

up to $1,000.00 per day. 3 The Orlowski plaintiffs
dismantled and disposed of the manufactured home.
3

The letter is not part of the record herein.

On June 22, 2012, plaintiffs filed the within action and
asserted claims against Salvatore in both his individual
and official capacities. On October 2, 2012, plaintiffs
served the complaint on the Town Clerk at Town Hall,
Melody Oliver, at 661 West Main Street, in the Village
of Hancock. On October 23, 2012, defendants filed
the within motion to dismiss plaintiffs's complaint, in
its entirety based upon insufficient service or, in the
alternative, for failure to state a claim.

DISCUSSION
I. DEFENDANTS' MOTION TO DISMISS UNDER
12(B)(5)
When a defendant moves to dismiss the complaint
under Rules 12(b) (5) and 12(b)(6), the court must
address the issue of proper service before the alleged
failure to state a claim. Schwasnick v. Fields, 2010 WL
2679935, at *2 (E.D.N.Y.2010). In considering a Rule
12(b)(5) motion to dismiss for insufficient service of
process, the court “must look to matters outside the
complaint to determine whether it has jurisdiction.” Allen
v. Nassau Cnty. Executive Office, 2011 WL 1061019, at *4
(E.D.N.Y.2011). “[W]hen a defendant moves to dismiss
under rule 12(b)(5), the plaintiff bears the burden of
proving adequate service.” Id. (citations omitted).
*3 On June 22, 2012, plaintiffs filed the complaint in
this Court. (Dkt. No. 1). On October 18, 2012, plaintiffs
filed Proof of Service with this Court indicating that the
summons for the Town of Hancock and Salvatore had
been served upon Melody Oliver, Town Clerk for the
Town of Hancock on October 2, 2012. (Dkt. No. 7).
Defendants move to dismiss plaintiffs' complaint arguing
that Salvatore and the Town of Hancock were not timely
served within 60 days of the filing of the complaint, in
accordance with this Court's Local Rules. In addition,
defendant Salvatore argues that service was insufficient
because he did not receive a mailed copy of the complaint.
Plaintiffs do not offer any evidence or argument in
opposition but request that, should the Court agree with
defendants, that plaintiffs be granted additional time to
re-serve defendants. See Dkt. No. 12, p. 5.

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2

Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

A. Town of Hancock
Rule 4(m) of the Federal Rules of Civil Procedure
provides, in pertinent part, as follows:
If a defendant is not served within
120 days after the complaint is filed,
the court-on motion 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.
Fed.R.Civ.P. 4(m).
Local Rule 4.1(b) requires “service of process upon all
defendants within sixty (60) days of the filing of the
complaint. This expedited service is necessary to ensure
adequate time for pretrial discovery and motion practice.
In no event shall service of process be completed after the
time specified in Fed.R.Civ.P. 4.” N.D.N.Y. L.R. 4.1(b);
see also New York State Teamsters Council Health and
Hosp. Fund v. C & D Specialized Transp., Inc., 1995 WL
79176, at *1 (N.D.N.Y.1995) (Local Rule 4.1(b) requires
service of process preferably within 60 days from the date
the complaint is filed with the clerk of the court, but in any
case within the time allowed by Fed.R.Civ.P. 4).
Here, the Town of Hancock was served, via the Town
Clerk, on October 2, 2012. While this was not within
the 60 day time period set forth in Local Rule 4.1(b),
service was effectuated within 120 days as provided in
Fed.R.Civ.P. 4(m). Defendants do not claim that Melody
Oliver was not authorized to accept service on behalf
of the Town. While plaintiffs failed to complete service
within 60 days after filing the complaint, in violation of
the local rules, plaintiffs completed service within 120
days of when the complaint was filed and established
personal jurisdiction over the Town of Hancock. See
Edsell v. Indep. Freightway, Inc., 1995 WL 375827, at
*3 (N.D.N.Y.1995). Accordingly, defendants' motion to
dismiss the complaint against the Town of Hancock based
upon insufficient service is denied.

B. Salvatore 4
4
Defendant does not specify whether he seeks dismissal
of all claims, in both his individual and official
capacity, based upon lack of personal jurisdiction.
However, the Court will assume the motion applies to
all claims asserted against Salvatore.

1. Official Capacity
Service of process upon a municipal office is governed by
Federal Rule of Civil Procedure 4(j)(2) which states that
service may be completed by: “(A) delivering a copy of the
summons and the complaint to its chief executive officer;
or (B) serving a copy of each in the manner prescribed by
that state's law for serving a summons or like process on
such a defendant.” Fed.R.Civ.P. 4(j)(2).
*4 C.P.L.R. § 307(2), provides that:
Personal service on a state officer
sued solely in an official capacity or
state agency, which shall be required
to obtain personal jurisdiction over
such an officer or agency, shall be
made by 1) delivering the summons
to such officer or to the chief
executive officer of such agency or
to a person designated by such
chief executive officer to receive
service, or (2) by mailing the
summons by certified mail, return
receipt requested, to such officer
or to the chief executive officer
of such agency, and by personal
service upon the state in the manner
provided by subdivision one of this
section.
Service on a town board or town supervisor is sufficient
where the pleadings are left with the town clerk.
Schwasnick, 2010 WL 2679935, at *3 (citing Contento
v. Veteran, 1981 LEXIS 13478, at *3 (S.D.N.Y.1981)
(finding that serving the town clerk on behalf of town
board members and the town supervisor in their personal
capacities was only insufficient because the plaintiff did
not mail a copy to the defendant after personal service));
see also Wendell v. N.Y. State Ins. Dep't, 2007 LEXIS
62314 *10–12 (E.D.N.Y.2007) (sufficiency of service on
Superintendent in his individual capacity determined

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Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

under Rule 4(e) and C.P.L. R. 308, in his official capacity
under Rule 4(j)(2) and C.P.L.R. 307).
Based upon the record herein, service upon Melody
Oliver, on behalf of Salvatore in his official capacity, is
sufficient.

2. Individual Capacity
Service of process upon an individual within a judicial
district of the United States is governed by Rule 4(e) which
states that service may be completed by:
(1) following state law for serving a summons in an
action brought in courts of general jurisdiction in the
state where the district court is located or where service
is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the
complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or
usual place of abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed.R.Civ.P. 4(e).
Pursuant to N.Y.C.P.L.R. § 308(2), service of process on
an individual is sufficient where the summons is left with
a “person of suitable age and discretion at the actual place
of business” and mailing a copy to the same. Serving
the Town Clerk on behalf of the Town Supervisor in
his individual capacity is insufficient if the plaintiff does
not mail copy after personal service. See Allen, 2011 WL
1061019, at *4 (collecting cases).
Without evidence indicating that the summons and
complaint were also mailed to Salvatore, the claims
against Salvatore, in his individual capacity, must be
dismissed. The record contains no proof of service
indicating that Salvatore was personally served the
summons and complaint within the 120–day statutory
window of Rule 4(m). Moreover, there is no proof of
mailing. Therefore, plaintiffs claims against Salvatore,
in his individual capacity, must be dismissed. See

Polite v. Town of Clarkstown, 60 F.Supp.2d 214, 216
(S.D.N.Y.1999).

C. Request for Additional Time
*5 Good cause to excuse deficient service generally
requires proof of “exceptional circumstances” that were
“beyond [the plaintiff's] control.” Weston Funding, LLC
v. Consorcio G Grupo Dina, S.A. de C.V., 451 F.Supp.2d
585, 591 (S.D.N.Y.2006). In order to establish good cause
for an extension of time for service a plaintiff must show
“reasonably diligent efforts” to serve defendants within
the allotted time frame. Forte v. Lutheran Augustana
Extended Care and Rehab. Ctr., 2009 WL 4722325, at *3
(E.D.N.Y.2009) (citations omitted).
In this matter, plaintiffs have failed to establish set forth
any argument to establish “good cause” with respect to
the efforts to serve Salvatore as an individual. Plaintiffs
allege that their agent was “told by Melody Oliver that
she was authorized to accept service”. There is no affidavit
in the record from the process server attesting to this
conversation. And even so, plaintiffs have not explained
their failure to comply with § 308 or their failure to
make additional efforts to serve Salvatore in his individual
capacity. Thus, plaintiffs' request for an extension of time
to re-serve Salvatore is denied.

II. DEFENDANTS' MOTION TO DISMISS UNDER
12(B)(6)
A. STANDARD
A motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of the party's claim for relief
and pleadings without considering the substantive merits
of the case. Global Network Commc'ns v. City of New
York, 458 F.3d 150, 155 (2d Cir.2006); Patane v. Clark,
508 F.3d 106, 111–12 (2d Cir.2007). In considering the
legal sufficiency, a court must accept as true all wellpleaded facts in the pleading and draw all reasonable
inferences in the pleader's favor. See ATSI Commc'ns, Inc.
v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (citation
omitted). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation
omitted). “Generally, consideration of a motion to dismiss
under Rule 12(b)(6) is limited to consideration of the
complaint itself” unless all parties are given a reasonable

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opportunity to submit extrinsic evidence. Faulkner v. Beer,
463 F.3d 130, 134 (2d Cir.2006). In ruling on a motion
to dismiss pursuant to Rule 12(b)(6), a district court
generally must confine itself to the four corners of the
complaint and look only to the allegations contained
therein. Robinson v. Town of Kent, N.Y., No. 11 Civ. 2875,
2012 WL 3024766, at *3–4 (S.D.N.Y.2012) (citing Roth v.
Jennings, 489 F.3d 499, 509 (2d Cir.2007)).
To survive a motion to dismiss, a party need only plead “a
short and plain statement of the claim,” see Fed.R.Civ.P.
8(a) (2), with sufficient facts “to ‘sho[w] that the pleader
is entitled to relief[.]’ “ Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(quotation omitted). Under this standard, the pleading's
“[f]actual allegations must be enough to raise a right of
relief above the speculative level,” see id. at 555 (citation
omitted), and present claims that are “plausible on [their]
face.” Id. at 570. “The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (citation omitted). “Where a
complaint pleads facts that are ‘merely consistent with’
a defendant's liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’ “ Id.
(quoting Twombly, 550 U.S. at 557). Ultimately, “when
the allegations in a complaint, however true, could not
raise a claim of entitlement to relief,” Twombly, 550 U.S.
at 558, or where a plaintiff has “not nudged [its] claims
across the line from conceivable to plausible, the [ ]
complaint must be dismissed[.]” Id. at 570.
*6 The Second Circuit has held that, on a motion to
dismiss, a court may consider “documents attached to
the complaint as an exhibit or incorporated in it by
reference, ... matters of which judicial notice may be
taken, or ... documents either in plaintiffs' possession or of
which plaintiffs had knowledge and relied on in bringing
suit.” Brass v. Am. Film Tech. Inc., 987 F.2d 142, 150
(2d Cir.1993). The Second Circuit has clarified, however,
that “[b]ecause this standard has been misinterpreted on
occasion, we reiterate ... that a plaintiff's reliance on the
terms and effect of a document in drafting the complaint
is a necessary prerequisite to the court's consideration
of the document on a dismissal motion; mere notice or
possession is not enough.” Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir.2002) (citation and footnote
omitted). 5

5

At this early juncture, the Court declines to convert
this motion to dismiss to one for summary judgment
pursuant to Rule 12(d) of the Federal Rules of Civil
Procedure. See, e.g., Global Network Commc'ns, Inc.,
458 F.3d 150, 155 (2d Cir.2006) (holding that “[t]he
conversion requirement of Rule 12(b) ... deters trial
courts from engaging in factfinding when ruling on a
motion to dismiss and ensures that when a trial judge
considers evidence [outside] the complaint, a plaintiff
will have an opportunity to contest defendant's
relied-upon evidence by submitting material that
controverts it” (citations omitted)).

B. Substantive Due Process Claims
The Fourteenth Amendment provides, in relevant part,
that “[n]o state shall ... deprive any person of life, liberty,
or property, without due process of law.” U.S. Const.
amend. XIV, § 1. In order to demonstrate a violation
of either substantive or procedural due process rights,
the plaintiff must first demonstrate the possession of a
federally protected property right to the relief sought.
Puckett v. City of Glen Cove, 631 F.Supp.2d 226, 236
(E.D.N.Y.2009) (citing Lisa's Party City, Inc. v. Town of
Henrietta, 185 F.3d 12, 16 (2d Cir.1999)). To establish
a substantive due process violation, a plaintiff must
demonstrate that: (1) there is a valid property interest;
and (2) defendants infringed on that property right in an
arbitrary or irrational manner. Cine SK8, Inc. v. Town of
Henrietta, 507 F.3d 778, 784 (2d Cir.2007).
Property interests “are created and their dimensions are
defined by existing rules or understandings that stem
from an independent source such as state law-rules
or understandings that secure certain benefits and that
support claims of entitlement to those benefits.” Bd. of
Regents of State Coll. v. Roth, 408 U.S. 564, 577, 92 S.Ct.
2701, 33 L.Ed.2d 548 (1972) (holding that the plaintiff
must have more than a unilateral expectation; the plaintiff
must have a legitimate claim of entitlement to the benefit).
“In order for an interest in a particular land-use benefit
to qualify as a property interest for the purposes of the ...
due process clause[,] a landowner must show a ‘clear
entitlement’ to that benefit.” Natale v. Town of Ridgefield,
170 F.3d 258, 263–64 (2d Cir.1999). “This inquiry stems
from the view that a property interest can sometimes exist
in what is sought—in addition to the property interest that
exists in what is owned—provided there is a ‘legitimate
claim of entitlement’ to the benefit in question.” Zahra v.
Town of Southold, 48 F.3d 674, 679–80 (2d Cir.1995.

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5

Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

“[I]n order to establish a federally protectable property
interest in a state or local permit for which a plaintiff
has applied, the plaintiff must show that, at the time the
permit was denied, there was no uncertainty regarding
his entitlement to it under applicable state or local law,
and the issuing authority had no discretion to withhold it
in his particular case.” See id. at 263 n. 1. “The analysis
focuses on the extent to which the deciding authority may
exercise discretion in arriving at a decision, rather than
on an estimate of the probability that the authority will
make a specific decision. Zahra, 48 F.3d at 679–80; see also
Walz v. Town of Smithtown, 46 F.3d 162, 168 (2d Cir.1995)
(homeowner had property interest in an excavation permit
because superintendent of highways had no discretion to
decline to issue it if the application stated the nature,
location, extent and purpose of the proposed excavations).
*7 Defendants argue that the denial of an application
for permission to develop property does not implicate
a vested property interest if the government has the
authority to grant or deny the application. Defendants
claim that Local Law # 1 affords the Code Enforcement
Officer discretion in deciding whether to issue building
permits. Defendants further argue that even assuming
plaintiffs properly plead a vested property interest,
plaintiffs' substantive due process claims are subject to
dismissal because the complaint does not allege egregious
and arbitrary conduct. Defendants set forth different
arguments in support of dismissal of Norwoods' and
Orlowskis' portions of the complaint.

1. Local Law # 1
The relevant law in this matter is Local Law # 1 formally
entitled, “A Local Law Providing for the Administration
and Enforcement of the New York State Uniform Fire
Prevention and Building Code”. The relevant portions
provide:
Section 3. Code Enforcement Officer and Inspectors
(a) The office of Code Enforcement Officer is
hereby created. The Code Enforcement Officer shall
administer and enforce all the provisions of the
Uniform Code, the Energy Code and this local
law. The Code Enforcement Officer shall have the
following powers and duties:
(1) to receive, review and approve or disapprove
applications for Building Permits [ ... ]

Section 4.
(a) Building Permits Required. Except as otherwise
provided in subdivision (b) of this section, a Building
Permit shall be required for any work which must
conform to the Uniform Code and/or the Energy
Code, including, but not limited to, the construction,
enlargement, improvement, removal, relocation or
demolition of any building or structure or any
portion thereof, and the installation of a solid fuel
burning heating appliance, chimney or flue in any
dwelling unit. No person shall commence any work
for which a Building Permit is required without first
having obtained a Building Permit from the Code
Enforcement Officer.
(f) Issuance of Building Permits. An application for
a Building Permit shall be examined to ascertain
whether the proposed work is in compliance with the
applicable requirements of the Uniform Code and
Energy Code. The Code Enforcement Officer shall
issue a Building Permit if the proposed work is in
compliance with the applicable requirements of the
Uniform Code and Energy Code.

2. Norwood Plaintiffs
The Norwood plaintiffs argue that Salvatore directed
them to expend monies before even accepting the
application for the building permit. The Norwood
plaintiffs argue that this demand is in contravention of
Local Law # 1 because the CEO is not empowered with the
authority to refuse to accept the application for a permit.
In response, defendants argue that it is “indisputable that
on November 24, 2008, plaintiffs Norwood submitted a
signed building permit application to the Town and paid
the required fee”. 6 Defendants claim that upon receipt of
that application, Salvatore had broad discretion to review
and approve or disapprove the application.
6

Defendants annexed a copy of the alleged building
permit application to the reply papers. The
application has not been properly authenticated.

*8 In a case involving a similar code provision, the
district court in the Eastern District, held that the
plaintiff sufficiently plead a property interest in obtaining
a building permit. In Hampton Bays Connections, Inc.
v. Duffy, 127 F.Supp.2d 364, 378 (E.D.N.Y.2001), the
plaintiffs claimed that the defendants deprived them

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of their substantive due process rights by arbitrarily
denying land use permits including an application for a
building permit for the construction of a McDonald's.
The applicable code provided, “[a]ny person wishing to
construct a building must obtain a building permit from
the Building Inspector”. The Court cited to the relevant
portions of the Town Code:
the Town Code does state that after receiving the
application, the Building Inspector “shall examine
the premises for which” the application has been
received “for the purpose of ensuring compliance with
laws, ordinances and regulations governing building
construction”, shall examine the application, as well as
the plans, specifications and documents filed therewith,
shall refer the application to the Town Director of
Natural Resources, who will determine whether an
additional permit is necessary for construction in
a Wetlands area, and shall issue a building permit
upon approval of the application. If the application,
together with plans, specifications and other documents
filed therewith, describes proposed work which does
not conform to all of the requirements of the
applicable building regulations, the building official
shall disapprove the same.
Id. at 379 (internal citations omitted).
The Court found that, “[t]he Town Code does not
explicitly set forth whether the Building Inspector must
approve certain applications, whether he may deny
an application, or the circumstances under which the
Building Inspector will approve or deny an application.”
Id.
The Court held:
Given these provisions of the Town
Code, the Court finds that the
Building Inspector has very little
discretion when deciding whether
a permit should issue. Rather,
the Town Code indicates that if
the application meets all relevant
regulations and ordinances, then the
Building Inspector shall approve the
application and issue the permit.
The Court acknowledge that, “later in the litigation,
it may become clear that the Building Inspector does

exercise his discretion when he applies the relevant
building ordinances and regulations to a particular
application”. Id. However, the Court concluded, “at this
early stage in the litigation, without information regarding
the types of ordinances and regulations that are applicable
to this case and the manner in which they are examined,
the Court finds that the Building Inspector does not retain
sufficient discretion to defeat the plaintiffs' substantive
due process claim.” Id. (citing inter alia RRI Realty
Corp. v. Inc. Vill. of Southampton, 870 F.2d 911, 918 (2d
Cir.1985)).
Viewing the evidence in a light most favorable to plaintiff,
as the Court must do on a motion to dismiss, the Court
finds that the Local Law does not provide the CEO
with the discretion to direct that “prep” work must be
performed prior to the issuance of a building permit.
Moreover, pursuant to Section 4(f), the CEO is not
vested with broad discretionary authority to grant or
deny a permit or application. Section (f) clearly provides
that a permit shall be issued if the proposed work is in
compliance with the applicable codes. Here, the record
does not contain any information relevant to the issue
of whether Norwood plaintiffs' application or proposed
work complied with the Uniform or Energy Code.
*9 In cases where courts have found that the plaintiff
does not possess a property interest in a permit, those
cases involved distinguishable codes and regulations that
provided the governmental body with broad discretion
over whether a permit was granted. See A.B. C. Home
Furnishings, Inc. v. Town of East Hampton, 947 F.Supp.
635, 645 (E.D.N.Y.1996) (both the Town Code, and
the permit application expressly provide that the permit
“may” be revoked under certain circumstances and
according to the permit application signed by the plaintiff,
without notice or a hearing, providing the defendants
with sufficient discretion in the determination as to
whether to revoke a permit to defeat ABC's claim of a
property interest); see also Application/Action of 89 JPS,
L.L.C. v. Joint Vill. of Lake Placid and Town of N. Elba
Review Bd., 2011 WL 4344020, at *15 (N.D.N.Y.2011)
(pursuant to the Land Use Code at issue, the defendant
had the discretion to “approve, approve with stipulated
conditions, modification or disapprove any application”
presented); see also Quick Cash of Westchester Ave.
LLC v. Vill. of Port Chester, 2013 WL 135216, at *11
(S.D.N.Y.2013) (the plain language of the statute gives
discretion to the mayor or local licensing authority to

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grant the license “as he shall deem proper,” and to
limit licenses to those who meet the standard of “good
character.”). In this matter, Local Law # 1 does not
contain such broad discretionary language.
The Court has reviewed the cases cited by defendants
in support of the motion to dismiss and notes that
those cases involved motions for summary judgment or
motions after a jury trial. See RRI, 870 F.2d 911; see
also Tomlins v. Vill. of Wappinger Falls, 812 F.Supp.2d
357, 368 (S.D.N.Y.2001). Applying Hampton Bay to the
facts at hand, at this stage of the litigation, the Norwood
plaintiffs have adequately plead a property interest in the
building permit.
To meet the second prong, plaintiff must establish that
the government action transgresses “the outer limit”
of legitimate government action and that the officials
actions were “shocking, abusive, capricious or arbitrary”.
Cathedral Church of the Intercessor v. Inc. Vill. of
Malverne, 353 F.Supp.2d 375, 385 (E.D.N.Y.2005).
Here, plaintiffs allege that Salvatore willfully, maliciously,
selectively, wrongfully and intentionally denied them
the ability to rebuild their home. Plaintiffs assert that
defendants acted “in an arbitrary and irrational manner”
and issued “onerous and unreasonable demands”
directing plaintiffs to “perform unnecessary work, which
wrongfully depleted the funds that were available to
plaintiffs to complete the reconstruction of their home”.
Plaintiffs contend that the demands were made for
the purposes of “supporting a racist agenda and ‘de
facto’ zoning scheme designed to exclude minorities from
residing in the Town of Hancock”.
Taking all of the plaintiffs' allegations together and
viewing them in the light most favorable to the plaintiff,
the Court finds that the Norwood plaintiffs have
sufficiently stated an arbitrary denial and a substantive
due process claim with respect to the denial of the building
permit.

3. Orlowski Plaintiffs
*10 The Orlowski plaintiffs claim that they “clearly
had a property interest in their manufactured home”.
Defendants argue that the issue is not whether they had
a property interest in the manufactured home, but rather,
whether they had a property interest in the location of the
home.

While not discussed by either party, the ripeness doctrine
precludes the Orlowski plaintiffs from seeking review in
this Court. Land use challenges, whether pursued as a
takings claim under the Fifth Amendment or as violations
of equal protection or due process, are subject to the
ripeness requirement articulated in Williamson County
Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172,
105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), which states
that a land use challenge is not ripe for judicial review
until the government entity charged with implementing
the relevant regulations has reached a “final decision”
regarding their application to the property at issue.
Lost Trail LLC v. Town of Weston, 289 F. App'x
443, 444 (2d Cir.2008). Where there has been no final,
definitive decision alleged either in the complaint or
in plaintiffs' opposition papers that prohibited plaintiffs
from developing and using the property, there is no
constitutional violation. See Grossi v. City of New York,
2009 WL 4456307, at *5 (E.D.N.Y.2009) (the plaintiff
failed to complete the paperwork and file the application
with the appropriate offices) (citing Goldfine v. Kelly, 80
F.Supp.2d 153, 160 (S.D.N.Y.2000) (“Informal efforts to
gain approval for land development are insufficient, by
themselves, to constitute final government action.”)).
In this matter, the Orlowski plaintiffs do not allege
that they applied for a building permit to move their
home, nor do they allege that they were denied the
right to file any such application. At best, the Orlowski
plaintiffs “informally” discussed whether they needed to
apply for a permit with Salvatore. Defendants were not
presented with an application and thus, made no decision
regarding any building permit application. Consequently,
the Orlowski plaintiffs claims are not ripe for review. See
Homefront Org., Inc. v. Motz, 570 F.Supp.2d 398, 406–11
(E.D.N.Y.2008) (finding claims not ripe for review when
“plaintiffs cannot even argue that they made, and were
denied, a meaningful application”). 7 Defendants' motion
to dismiss the Orlowski plaintiffs' substantive due process
claims is granted.
7

As the Court has found that the Orlowski plaintiffs'
substantive due process claims are not ripe for review,
the Court takes no position on whether the Orlowski
plaintiffs possessed a vested property right or whether
defendants' actions were egregious and/or arbitrary.

C. Equal Protection Claims

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8

Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to
any person within its jurisdiction the equal protection
of the laws,’ which is essentially a direction that all
persons similarly situated should be treated alike.” City
of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439,
105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To prevail on
an equal protection claim based on a theory of selective
enforcement, plaintiffs must show both (1) that they were
treated differently from other similarly situated businesses
and (2) that “such differential treatment was based on
impermissible considerations such as race, religion, intent
to inhibit or punish the exercise of constitutional rights,
or malicious or bad faith intent to injure a person.”
Cine SK8, Inc., 507 F.3d at 790. Where plaintiffs merely
alleged less favorable treatment than “similarly situated”,
plaintiffs fail to state viable equal protection claim. Ruston
v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 59
(2d Cir.2010). In order to prevail, plaintiffs must allege
facts plausibly indicating that the defendants would have
enforced similar regulations when faced with the request
of another resident whose situation was similar to the
plaintiffs. Nemeth v. Vill. of Hancock, 2011 WL 56063,
at *6 (N.D.N.Y.2011). At the motion to dismiss stage,
a court must determine whether, based on a plaintiff's
allegations in the complaint, it is plausible that a jury
could ultimately determine that the comparators are
similarly situated. Thus, “[w]ell-pled facts showing that
the plaintiff has been treated differently from others
similarly situated remains an essential component of
such a claim [and][c]onclusory allegations of selective
treatment are insufficient to state an equal protection
claim.” Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley
Hills, 815 F.Supp.2d 679, 698 (S.D.N.Y.2011).

1. Norwood plaintiffs
*11 Defendants argue that plaintiffs complaint fails to
allege an equal protection claim because they failed to
plead that they were treated differently from similarly
situated individuals. Defendants claim that the Norwood
plaintiffs failed to identify any such similarly situated
individual and only identified Joel May in response to
the within motion. Moreover, defendants claim that even
assuming that plaintiffs' allegations are deemed true as to
May, plaintiffs fail to allege a sufficient degree of similarity
to sustain a cause of action.
In the complaint, the Norwood plaintiffs allege that they
have been deprived of equal protection:

Compared with other similar
situations involving other property
owners in the Town of Hancock,
plaintiffs Norwood have been
adversely selectively treated.
The Norwood plaintiffs' portion of the complaint does
not refer to Joel May. Because “[t]he totality of
[p]laintiffs' allegations regarding[their] Equal Protection
claim is a conclusory assertion, without any detail”,
the claim is subject to dismissal. See Dellutri v. Vill.
of Elmsford, 2012 WL 4473268, at *15 (S.D.N.Y.2012)
(the plaintiff alleged that the defendant differed in its
“treatment to other similarly situated property owners.”).
In plaintiffs' opposition to the within motion, counsel
states, “[p]laintiffs Norwood were treated differently from
the Mays, who are similarly situated in that they won
property in the same local jurisdiction”. Even assuming
the Court accepted the assertions regarding Mr. May
contained in the Norwood plaintiffs' opposition to this
motion, plaintiffs allegations, are insufficient. Plaintiffs do
not allege Joel May or the Mays applied for, and were
denied, a building permit, under similar circumstances.
Possible comparators for the treatment alleged by the
plaintiffs herein may be other residents who applied for
permits and whose complaints were treated differently,
but the Norwood plaintiffs do not identify any such
people or allege their existence. See Caldarola v. Town of
Smithtown, 2010 WL 6442698, at *9 (E.D.N.Y.2010). The
Norwood plaintiffs fail to allege that defendants permitted
other landowners with substantially similar properties to
develop their land without the need for “prep work”
prior to receiving a building permit. Plaintiffs' conclusory
statements that defendants acted maliciously and with an
intent to harm plaintiffs fail as a matter of law. See Grossi,
2009 WL 4456307, at *9.
Based upon the complaint, even viewing the evidence in
a light most favorable to the Norwood plaintiffs, the
Court finds that the Norwood plaintiffs have failed to
sufficiently allege that they were similarly situated to any
property owner.

2. Orlowski plaintiffs
In the complaint, the Orlowski plaintiffs allege:
At this Court appearance, the plaintiffs Orlowski
indicated to defendant Salvatore that the same onerous

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9

Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

requirements did not apply to the next-door neighbor of
the plaintiffs, Joel May, who installed a manufactured
home without a permit in 2008, connected it to utilities
without a building permit, and has occupied it since
then without a certificate of occupancy.

***
*12 Compared with other similar situations involving
other property owners in the Town of Hancock,
plaintiffs Orlowski have been adversely selectively
treated.
Assuming the allegations in the complaint as true, the
Court finds that the Orlowski plaintiffs have sufficiently
plead that they were similarly situated to May. However,
upon review of the complaint, the Court finds that
plaintiffs have failed to establish the second element
necessary for an equal protection claim. Plaintiffs'
allegations with respect to “malicious or bad faith intent
to injure” are wholly conclusory. Plaintiffs allege:
As a result of the actions of
defendant Salvatore in falsely
indicating that it was proper
for plaintiffs Orlowski to relocate
their manufactured home, and then
issuing false violations contrary to
his specific directions, and willfully,
maliciously, selectively, wrongfully
and
intentionally
prosecuting
plaintiffs Orlowski in an effort to
prevent them from utilizing their
manufactured home, in selectively
prosecuting plaintiffs Orlowski for
relocating a manufactured home
while allowing their next door
neighbor Joel may to do so openly
and without sanction, defendants
have deprived plaintiffs Orlowski of
a substantial property interest.
See Pl. Cmplt at ¶ 17.
However, plaintiffs fail to explain Salvatore's motive. See
Laidlaw Energy and Envtl., Inc. v. Town of Ellicottville,
New York, 2011 WL 4954881, at *11 (W.D.N.Y.2011) (the
plaintiff's complaint was filled with allegations regarding
the defendant's illicit motives but an economic interest did
not equate to malicious motives nor were the allegations

compatible with an intention to injure the plaintiff).
Without more than mere conclusory allegations, this does
not suffice to establish an intent to harm plaintiffs.

3. Leave to Amend
Pursuant to Rule 15(a) of the Federal Rules of Civil
Procedure, leave to amend a pleading shall be freely
given when justice so requires. See Livingston v. Piskor,
215 F.R.D. 84, 85 (W.D.N.Y.2003). “Absent evidence of
undue delay, bad faith or dilatory motive on the part of the
movant, undue prejudice to the opposing party, or futility,
Rule 15's mandate must be obeyed.” Monahan v. New
York City Dep't of Corr., 214 F.3d 275, 283 (2d Cir.2000)
(citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227,
9 L.Ed.2d 222 (1962)). In their opposition to defendants'
motion, plaintiffs seek leave to amend the complaint.
See Dkt. No. 12, p. 14. Plaintiffs did not file a cross
motion nor did they file a proposed amended complaint.
“While the Court is skeptical that plaintiffs can cure the
deficiencies, the Court finds it would not be futile to
permit plaintiffs the opportunity to amend other portions
of their pleading .” MacPherson v. Town of Southampton,
738 F.Supp.2d 353, 375 (E.D.N.Y.2010) (the plaintiffs'
opposition papers contain a general request for “an
opportunity to amend their pleading as Rule 15 permits,
in the event that the Court finds anything lacking.”). If
the Norwood plaintiffs are able to allege that similarly
situated property owners were treated differently, naming
such owners, and that they were treated differently as a
result of malice, bad faith or intentional discrimination,
the Norwood plaintiffs could allege an equal protection
claim sufficient to pass Rule 12(b)(6) muster. Accordingly,
the Norwood plaintiffs' are granted leave to replead
their equal protection claim only. See A.B. C. Home
Furnishings, Inc. v. Town of East Hampton, 947 F.Supp.
635, 647 (E.D.N.Y.1996).
*13 With respect to the Orlowski plaintiffs, since there is
no evidence of undue prejudice to defendants or dilatory
motives by plaintiffs, the Court grants plaintiffs' motion
to amend their complaint. Plaintiffs' amended complaint
may not add any additional claims, but simply include
additional facts in support of their arguments on the equal
protection claim.

D. Norwood's Request for Declaratory Relief
Defendants argue that this Court lacks subject matter
jurisdiction over the Norwood plaintiffs' request for

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10

Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

declaratory relief because plaintiffs failed to commence an
Article 78 proceeding in state court within the applicable
statute of limitations. Plaintiffs do not present any
argument in support of this claim but assert, “these
claims [ ... ] are properly made, however, [plaintiffs]
respectfully leave determination of this portion of the
complaint within the sound discretion of this Honorable
Court”. Because plaintiffs fail to sufficiently respond to
defendants' arguments for the dismissal of this claim,
defendants' burden with regard to those arguments is
modest. See Douglas v. New York State Adirondack Park
Agency, 2012 WL 3999763, at *30 (N.D.N.Y.2012).
Article 78 affords meaningful and constitutionallyadequate post-deprivation dueprocess. C.C.S.comUSA,
Inc. v. Gerhauser, 2012 WL 1118625, at *7 (E.D.N.Y.2012)
(citing inter alia Manza v. Newhard, 2012 WL
917286, at *2 (2d Cir.2012) (noting that Article 78
provided plaintiff with adequate post-deprivation due
process)); see also Hampton Bays, 127 F.Supp.2d at 381
(E.D.N.Y.2001) (availability of Article 78 proceeding
precluded procedural due process claim arising from
denial of building permit). A proceeding pursuant to
N.Y.C.P.L.R. Art. 78 is available to challenge whether
an ordinance was enacted in accordance with the proper
procedures. Save Pine Bush, Inc. v. City of Albany,
70 N.Y.2d 193, 202, 518 N.Y.S.2d 943, 512 N.E.2d
526 (1987). The statute of limitations for Article 78
proceedings is four months. N.Y.C.P.L.R. § 217; Erie
Boulevard Triangle Corp. v. City of Schenectady, 250
F.Supp.2d 22, 36 (N.D.N.Y.2003) (citing Matter of Save
the Pine Bush v. City of Albany, 70 N.Y.2d 193, 203, 518
N.Y.S.2d 943, 512 N.E.2d 526 (1987)).
In the Third Cause of Action, the Norwood plaintiffs
seek a judgment declaring that plaintiffs are entitled to a
building permit and Certificate of Occupancy. Plaintiffs
claim that Salvatore improperly ordered plaintiffs to
perform work in anticipation of a building permit in
an effort to advance his “racist agenda”. The claim
for declaratory judgment is, “an inappropriate vehicle”
because plaintiffs are not challenging the validity of any
portion of the Code. See Sandy Hollow Assoc. LLC v. Inc.
Vill. of Port Washington N., 2010 WL 6419570, at *24–
26 (E.D.N.Y.2010) (citing Janiak v. Town of Greenville,
203 A.D.2d 329, 331, 610 N.Y.S.2d 286 (2d Dep't 1994)
(declaratory judgment action is the appropriate vehicle
for bringing a challenge that is “clearly legislative in
nature, as evinced by its general applicability, indefinite

duration and formal adoption”)). Since plaintiffs' claim
is that Salvatore acted beyond the scope of his authority
under the Code, the proper forum for plaintiffs' claims
was an Article 78 proceeding in the appropriate New
York State Supreme Court. Id. (citing N.Y. C.P.L.R.
§ 7803); see also Trager v. Town of Clifton Park, 303
A.D.2d 875, 877, 756 N.Y.S.2d 669 (3d Dep't 2003) (claim
alleging that “defendant illegally and arbitrarily imposed,
and then increased, certain municipal fees” “should have
been challenged in a CPLR article 78 proceeding”). In the
complaint, the Norwood plaintiffs allege that Salvatore
demanded that they perform “prep work” in July 2009
and that he reiterated those demands in September 2009.
Plaintiffs' time to bring an Article 78 proceeding has
expired. Because plaintiffs did not challenge Salvatore's
exercise of authority within four months, plaintiffs are
now barred from alleging such claims here.
*14 Defendants' motion to dismiss the Norwood
plaintiffs' third cause of action for declaratory relief is
granted.

E. Orlowski Plaintiffs' Claim for Malicious Prosecution
Defendants vaguely argue that the Orlowski plaintiffs'
malicious prosecution claim must be dismissed because it
is barred by the applicable statute of limitations. As noted
supra, plaintiffs failed to present any clear argument in
support of this claim.
Initially, the Court notes that plaintiffs' malicious
prosecution claims are ambiguous and it is unclear
whether the claim is asserted pursuant to federal
and/or state law. In the complaint, the Orlowski
plaintiffs' third cause of action is for “malicious
prosecution pursuant to 42 USC 1983”. However, in
their opposition to defendants' motion to dismiss, the
Orlowski plaintiffs allege that their “state law claim”
for malicious prosecution is “properly made”. While
neither party presents any cohesive argument in support
or in opposition to this claim, the Court, upon it's
own independent review, finds that plaintiffs' malicious
prosecution claim, regardless of how it is plead, is subject
to dismissal.
In order to state a viable claim for malicious prosecution
in New York, a plaintiff must show: (1) the initiation
and continuation of criminal process against the plaintiff;
(2) termination of the proceeding in plaintiff's favor;
(3) the lack of probable cause for commencing the

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Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

proceeding; and (4) actual malice as a motivation for
the defendant's actions. See Jocks v. Tavernier, 316 F.3d
128, 136 (2d Cir.2003). In addition, to prevail upon a
Section 1983 malicious prosecution claim, a plaintiff must
also show that there was a Fourth Amendment “seizure”.
Washington v. Cnty. of Rockland, 373 F.3d 310, 316 (2d
Cir.2004). To satisfy the constitutional element, plaintiff
must show a seizure or other “perversion of proper legal
procedures” implicating plaintiff's personal liberty and
privacy interests under the Fourth Amendment. Id.
Here, plaintiffs § 1983 malicious prosecution claim is
insufficient because plaintiffs failed to plead the seizure
element. The Second Circuit has held that “the issuance
of a pre-arraignment, non-felony summons requiring
a later court appearance, without further restrictions,
does not constitute a Fourth Amendment seizure.”
Dellutri v. Vill.of Elmsford, 2012 WL 4473268, at
*12 (S.D.N.Y.2012) (citing Burg v. Gosselin, 591 F.3d
95, 98 (2d Cir.2010)). Some courts have held that a
criminal process involving multiple court appearances
effects a seizure under the Fourth Amendment. Id.
(citations omitted). “However, the weight of district
court authority in circumstances [ ... ] involving a
plaintiff charged with non-felony offenses who was neither
arraigned nor physically detained but who might have
made a number of court appearances, counsels against
finding a constitutional injury.” Id. (citation omitted);
see also Manbeck v. Micka, 640 F.Supp.2d 351, 370
(S.D.N.Y.2009) (finding that a seizure had not occurred
where plaintiff had not been detained at any point after
she had been “issued appearance tickets to appear in
Town Justice Court to answer misdemeanor charges of
violations of the Town's Zoning Laws” and had a civil
jury trial on the alleged violations); see also Subirats
v. D'Angelo, 938 F.Supp. 143, 149 (E.D.N.Y.1996) (the
plaintiff was issued two summonses to appear in a state
court as a result of his alleged violation of the Huntington
Town Code).
*15 Here, not only have plaintiffs failed to plead a
“seizure” to satisfy the constitutional element, plaintiffs
have failed to specify the number of court appearances
made in connection with the charge. See Dellutri, 2012 WL
4473268 at *12 (the plaintiff did not identify the number
of court appearances he made in connection with his trial).
There is no evidence that plaintiffs were required to post
bail, or that their ability to travel was limited. Given
the vague allegations in the complaint, the Court grants

defendants' motion to dismiss plaintiffs' 1983 claim for
malicious prosecution.
To the extent that plaintiffs intend to assert a claim for
malicious prosecution under New York State law, that
claim is also subject to dismissal. The statute of limitations
under New York law for malicious prosecution is one
year. See N.Y. CPLR § 215(3); see also Brown v. Seniuk,
2002 WL 32096576, at *3 (E.D.N.Y.2002) (the Statute of
Limitations for actions for malicious prosecution is three
years under 42 U.S.C. § 1983, and one year under New
York state law). The cause of action accrues when there
is a favorable termination of criminal proceedings against
the plaintiff. Baggett v. Town of Lloyd, 2011 WL 4565865,
at *4 (N.D.N.Y.2011) (citing Roman v. Comp USA, Inc.,
38 A.D.3d 751, 832 N.Y.S.2d 270 (2d Dep't 2007)).
In this matter, plaintiffs allege that they were found
“not guilty” after a trial on October 25, 2010. Therefore,
because more than one year elapsed between the
termination of the proceedings and the filing of the
complaint, plaintiffs state law claim for malicious
prosecution is untimely and must be dismissed.

F. Qualified Immunity
Defendants claim that dismissal is warranted based
upon qualified immunity. “The doctrine of qualified
immunity shields public officials from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which
a reasonable person would have known.” Salahuddin v.
Goord, 467 F.3d 263, 273 (2d Cir.2006) (citing Harlow
v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982)). For a constitutional right to be
“clearly established” for purposes of determining whether
an officer is entitled to qualified immunity, the “contours
of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates
that right. This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
that in the light of pre-existing law the unlawfulness must
be apparent.” Mollica v. Volker, 229 F.3d 366, 370–71 (2d
Cir.2000) (quoting Anderson v. Creiehton, 483 U.S. 635,
640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (emphasis in
original). “Where the right at issue in the circumstances
confronting [the] officials was clearly established but
was violated, the officials will nonetheless be entitled to
qualified immunity ‘if ... it was objectively reasonable for

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12

Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

them to believe their acts did not violate those rights.’
“ Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir.2007)
(quotation and other citation omitted).

ORDERED that defendants' motion to dismiss plaintiffs'
complaint (Dkt. No. 8) is GRANTED IN PART AND
DENIED IN PART AS FOLLOWS; it is

*16 The determination of whether an official's conduct
was objectively reasonable is a mixed question of law
and fact. See Zellner, 494 F.3d at 367 (citing Kerman v.
City of New York, 374 F.3d 93, 109 (2d Cir.2004)) (other
citations omitted). “The ultimate question of whether it
was objectively reasonable for an official to believe that
his conduct did not violate a clearly established right,
i.e., whether officials of reasonable competence could
disagree as to the lawfulness of such conduct, is to be
decided by the court. However, ‘[a] contention that ...
it was objectively reasonable for the official to believe
that his acts did not violate those rights has “its principle
focus on the particular facts of the case.” Id. (quotation
and other citations omitted). If there is no dispute as
to any material fact, the issue of whether the official's
conduct was objectively reasonable is an issue of law to be
decided by the court. See id. at 368 (citation omitted). Any
unresolved factual issues, however, must be resolved by
the jury. See id. (quoting Kerman, 374 F.3d at 109) (other
citations omitted). Once the court has received the jury's
decision as to “what the facts were that the officer faced or
perceived,” the court must then “make the ultimate legal
determination of whether qualified immunity attaches on
those facts.” Stephenson v. Doe, 332 F.3d 68, 81 (2d
Cir.2003) (quotation omitted); see also Lennon v. Miller,
66 F.3d 416, 421 (2d Cir.1995) (quotation omitted).

ORDERED, that defendant Town of Hancock's motion
to dismiss plaintiffs' complaint due to insufficient service
is DENIED; it is further

Having carefully considered the present record, the
Court is not well-positioned at this early stage to
dismiss plaintiff's claims on the basis of qualified
immunity. The Court finds that “[r]esolution of qualified
immunity depends on the determination of certain factual
questions that cannot be answered at this stage of the
litigation.” Denton v. McKee, 332 F.Supp.2d 659, 666
(S.D.N.Y.2004). For the Court to find that defendants are
entitled to qualified immunity, it would have to engage in
improper credibility determinations, which it is unwilling
to do. See Robison v. Via, 821 F.2d 913, 923–24 (2d
Cir.1987).

CONCLUSION
IT IS HEREBY

ORDERED, that defendant Salvatore's motion to dismiss
plaintiffs' claims against him in his official capacity, for
lack of personal jurisdiction, is DENIED; it is further
ORDERED, that defendant Salvatore's motion to dismiss
plaintiffs' claims against him in his individual capacity, for
lack of personal jurisdiction, is GRANTED; it is further
ORDERED, that defendants' motion to dismiss Norwood
plaintiffs' substantive due process claims is DENIED; it is
further
*17 ORDERED, that defendants' motion to dismiss
Orlowski plaintiffs' substantive due process claims is
GRANTED; it is further
ORDERED, that defendants' motion to dismiss Norwood
plaintiffs' equal protection claims is GRANTED with leave
to amend as discussed supra; it is further
ORDERED, that defendants' motion to dismiss Orlowski
plaintiffs' equal protection claims is GRANTED with leave
to amend as discussed supra; it is further
ORDERED, that defendants' motion to dismiss Norwood
plaintiffs' third cause of action for declaratory relief is
GRANTED; it is further
ORDERED, that defendants' motion to dismiss the
Orlowski plaintiffs' malicious prosecution claims is
GRANTED; it is further
ORDERED, that defendants' motion to dismiss the
complaint based upon qualified immunity is DENIED; it
is further
ORDERED, that plaintiffs shall file and serve their
amended complaint with respect to equal protection
claims only, consistent with this Order, within fourteen
days of the date of this Order in accordance with the Local
Rules.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

13

Norwood v. Salvatore, Not Reported in F.Supp.2d (2013)
2013 WL 1499599

IT IS SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2013 WL 1499599

End of Document

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© 2017 Thomson Reuters. No claim to original U.S. Government Works.

14

Tirse v. Gilbo, Slip Copy (2016)
2016 WL 4046780

2016 WL 4046780
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Jorge Tirse, Plaintiff,
v.
David Gilbo in his official capacity as a Lieutenant
in the Johnstown Police Dep't; Johnstown Police
Dep't; Gloversville Police Dep't; Donald Vandeusen
in his official capacity as the Chief of Police of
the Gloversville Police Department; Louise Sira
in her official capacity as District Attorney of the
County of Fulton; John P. Sira, Jr., in his official
capacity as a Captain in the Gloversville Police
Dep't; Jesse Ashdown in his official capacity as a
Special Prosecutor and Assistant District Attorney
in the County of Saratoga District Attorney's Office;
Fulton County; Mark Gifford in his official capacity
as the Chief of Police of the Johnstown Police
Dep't; and Darryl Bazan in his official capacity
as a New York State Police Investigator in the
Bureau of Criminal Investigation, Defendants.
6:15-CV-0987 (GTS/ATB)
|
Signed 07/27/2016
Attorneys and Law Firms
JORGE TIRSE, 53 Park Street, Gloversville, New York
12078, Plaintiff Pro Se.
MURPHY, BURNS, BARBER & MURPHY, LLP,
226 Great Oaks Blvd., OF COUNSEL: THOMAS K.
MURPHY, ESQ., STEPHEN M. GROUDINE, ESQ.,
Albany, New York 12203, Counsel for Defendants David
Gilbo, Johnstown Police Dept., and Mark Gifford.
LEMIRE JOHNSON, LLC, P.O. Box 2485, 2534 Route
9, OF COUNSEL: APRIL J. LAWS, ESQ., GREGG T.
JOHNSON, ESQ., Malta, New York 12020, Counsel for
Defendants Louise Sira, Donald VanDeusen, Gloversville
Police Dept., John P. Sira, Jr., Jesse Ashdown, and Fulton
County.
ERIC T. SCHNEIDERMAN, 615 Erie Blvd. West, Suite
102, OF COUNSEL: KEVIN M. HAYDEN, ESQ.,

Assistant Attorney General, Syracuse, New York 13204,
GLENN T. SUDDABY, Chief United States District
Judge, Attorney General for the State of New York,
Counsel for Defendant Darryl Bazan.

DECISION and ORDER
Hon. Glenn T. Suddaby, Chief U.S. District Judge
*1 Currently before the Court, in this pro se civil
rights action filed by Jorge Tirse (“Plaintiff”) against the
County of Fulton, Louise Sira in her official capacity
as the District Attorney for the County of Fulton
(collectively “County Defendants”), the Gloversville
Police Department, Donald VanDeusen in his official
capacity as the Chief of Police of the Gloversville Police
Department, John P. Sira, Jr., in his official capacity as
a Gloversville Police Captain (collectively “Gloversville
Defendants”), Jessie Ashdown in his official capacity as
a special prosecutor and an Assistant District Attorney
for the County of Saratoga (“Defendant Ashdown”),
the Johnstown Police Department, Mark Gifford in his
official capacity as the Chief of Police of the Johnstown
Police Department, David Gilbo in his official capacity
as a Lieutenant in the Johnstown Police Department
(collectively “Johnstown Defendants”), and Darryl Bazan
in his individual and official capacity as a New York State
Police Investigator (“Defendant Bazan”), are Defendants'
respective motions to dismiss Plaintiff's Complaint (Dkt.
No. 1) for failure to state a claim upon which relief can
be granted, pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt.
Nos. 11, 14, 26, 27, 30). For the reasons set forth below,
Defendants' motions are granted.

I. RELEVANT BACKGROUND
Generally, liberally construed, Plaintiff's Complaint
alleges as follows. On November 29, 2011, Plaintiff's
business was closed due to a civil dispute with his landlord,
Joseph Andrews. (Dkt. No. 1, ¶ 1 [Pl.'s Compl.].) On
the same day, Plaintiff was given a notice from the
Johnstown Police Department not to trespass on the
property. (Id., ¶ 3.) On December 1, 2011, Plaintiff went
to the Johnstown Police Department to file a complaint
against Mr. Andrews and Mr. Andrews's friend, “Sgt.
Stevens,” for not allowing Plaintiff to access the property
and for threatening to arrest him even though he had
a lease with Mr. Andrews. (Id., ¶ 2.) While at the
police department, Plaintiff was interviewed by Defendant

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1

Tirse v. Gilbo, Slip Copy (2016)
2016 WL 4046780

Gilbo, who secretly recorded the interview. (Id., ¶ 4.)
In that interview, Plaintiff described everything that had
happened. (Id.) The interview lasted nine minutes and 32
seconds; however, Defendants Gilbo and Bazan conspired
to edit the video so it would show only three minutes
of the interview. (Id., ¶¶ 4-5, 31, 34.) The unedited
video would have constituted proof that Plaintiff had not
committed a crime; but, because it was edited, it depicted
Plaintiff admitting to a crime that he never committed.
(Id., ¶ 7.) The video was later used in Plaintiff's criminal
prosecution. (Id., ¶ 6.)
On December 7, 2011, Plaintiff commenced a breach-ofcontract action against Mr. Andrews in New York State
Supreme Court, Fulton County. (Id., ¶ 10.) The following
day, Mr. Andrews filed a criminal complaint against
Plaintiff, alleging that Plaintiff had forged his signature
on the lease. (Id., ¶ 11.) This was a false accusation,
evidenced by the fact that Plaintiff had sent the lease to
the New York State Liquor Authority on November 23,
2011, one week before Mr. Andrews prohibited Plaintiff
from entering the premises. (Id., ¶ 13.) On January 13,
2012, Plaintiff was falsely arrested by Defendant Bazan for
felony forgery. (Id., ¶¶ 14-15.) During Plaintiff's criminal
and civil proceedings, he was advised by the court and
Defendant Ashdown that, if Plaintiff dropped his civil
suit against Mr. Andrews, the criminal charges against
him would be withdrawn. (Id., ¶¶ 16-17.) Defendant
Ashdown was assigned as a special prosecutor to handle
Plaintiff's criminal prosecution due to Defendant Louise
Sira's relationship with Mr. Andrews. (Id., ¶ 18.) Plaintiff
alleges that the forgery charge was a “trump charge” to use
as leverage against him and to coerce him into dismissing
his civil action against Mr. Andrews. (Id., ¶¶ 18-21.)
*2 Furthermore, “in-house police reports” generated by
the Gloversville Police Department were used in bad faith
and to maliciously prosecute Plaintiff. (Id., ¶¶ 22, 26-27.)
Plaintiff alleges that Defendant John Sira conspired in
Plaintiff's malicious prosecution by forwarding these inhouse police reports to Gerard McAuliffe, Mr. Andrews's
attorney, who in turn sent them to Defendant Ashdown.
(Id., ¶¶ 22, 24, 26.) Defendant John Sira knew that using or
sharing these in-house documents violated federal, state,
and local laws. (Id., ¶ 29.) Defendant John Sira is married
to Defendant Louise Sira. (Id., ¶ 28.)
On August 15, 2012, Plaintiff received a copy of the video
that recorded his interview with Defendant Gilbo. (Id., ¶

30.) Defendant Ashdown also received a copy of this video
but claims he never watched it. (Id., ¶ 33.) Plaintiff had
difficulty viewing the video because it was saved under
the editing software used by the police department. (Id.,
¶ 35.) Plaintiff went to the Johnstown Police Department
and received assistance from an officer in accessing
the videotape. (Id.) When Plaintiff finally viewed the
videotape, he noticed that it did not end correctly. (Id., ¶
36.) As a result, Plaintiff made a Freedom of Information
Law (“FOIL”) request for the entire videotape, which
was denied by Defendant Gilbo. (Id.) Plaintiff spoke
with Defendant Gifford regarding the matter, including
the fact that the videotape had been tampered with and
had been done so out of malice. (Id., ¶ 37.) Defendant
Gifford told Plaintiff that he “shouldn't of [done] what
[he] did” and hung up the telephone. (Id.) Plaintiff left
several messages for Defendant Gifford but they were
never returned. (Id., ¶ 38.) Plaintiff also contacted public
officials, such as the local Mayor, regarding the issue but
to no avail. (Id., ¶¶ 39-40, 43.) Plaintiff eventually sent the
videotape to be analyzed and the results confirmed that it
had been edited and tampered with. (Id., ¶ 40.)
Based upon the foregoing allegations, the Complaint
asserts the following eight causes of action: (1) a claim
that Defendants maliciously abused their power by using
legal process to accomplish some ulterior purpose outside
the legitimate ends of process in violation of the Fifth
and Fourteenth Amendments and 42 U.S.C. §§ 1981,
1983, 1985, and 1986; (2) a claim that Defendants
deliberately abused legal process in violation of the
Fifth and Fourteenth Amendments and 42 U.S.C. §§
1981, 1983, 1985, and 1986; (3) a claim that Defendants
intentionally inflicted emotional distress on Plaintiff in
violation of the Fifth and Fourteenth Amendments and
42 U.S.C. §§ 1981, 1983, 1985, and 1986; (4) a claim
that Defendants falsely arrested Plaintiff and deprived
him of his constitutional rights in violation of the Fifth
and Fourteenth Amendments and 42 U.S.C. §§ 1981,
1983, 1985, 1986, and 1988; (5) a claim that Defendants
maliciously prosecuted Plaintiff in violation of the Fifth
and Fourteenth Amendments and 42 U.S.C. §§ 1981,
1983, 1985, and 1986; (6) a claim that Defendants
conspired to violate Plaintiff's constitutional rights in
violation of the Fifth and Fourteenth Amendments and
42 U.S.C. §§ 1983 and 1985; (7) a claim that Defendants
refused or neglected to prevent Plaintiff's constitutional
rights from being violated in violation of the Fifth and
Fourteenth Amendments and 42 U.S.C. § 1983; and (8) a

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claim that Defendants Gifford and VanDeusen failed to
train, supervise, and discipline their subordinates in their
respective police departments in violation of the Fifth and
Fourteenth Amendments and 42 U.S.C. § 1983. (Id. at
9-16.)

II. PARTIES' BRIEFING ON DEFENDANTS'
MOTIONS TO DISMISS
1. Defendants' Memoranda of Law in Chief on Their
Respective Motions to Dismiss
a. The County Defendants' Memorandum of Law in Chief
*3 Generally, in their memorandum of law, the County
Defendants assert thirteen arguments with regard to
Plaintiff's claims against them. (Dkt. No. 11, Attach. 5
[Cty. Defs.' Mem. of Law].)
First, the County Defendants argue that Defendant
Louise Sira is entitled to prosecutorial immunity because
(a) she acted within the scope of her duties in initiating the
criminal prosecution against Plaintiff, and (b) she recused
herself from the criminal prosecution itself. (Id. at 5-7.)
Second, the County Defendants argue that Plaintiff's
claims for abuse of process, false arrest, and conspiracy
are time-barred by New York's three-year statute of
limitations for personal injury. (Id. at 7.)
Third, the County Defendants argue that the Complaint
fails to allege facts plausibly suggesting a claim under 42
U.S.C. § 1981 because it does not allege that Plaintiff
is a member of a racial minority or that Defendants
discriminated against Plaintiff on the basis of his race. (Id.
at 9.)
Fourth, the County Defendants argue that the Complaint
fails to allege facts plausibly suggesting a claim under 42
U.S.C. § 1985 because it does not allege that they acted
with racial animus toward Plaintiff. (Id. at 10-11.)
Fifth, the County Defendants argue that the Complaint
fails to allege facts plausibly suggesting a claim under
42 U.S.C. § 1986 because (a) it does not allege facts
indicating that they had any involvement in Plaintiff's
criminal prosecution, and (b) a viable § 1985 claim is a
prerequisite for an actionable § 1986 claim. (Id. at 11.)

Sixth, the County Defendants argue that Plaintiff's 42
U.S.C. § 1983 claim must be dismissed because the
Complaint fails to allege facts plausibly suggesting that
they violated his constitutional rights. (Id. at 9-10.)
Seventh, the County Defendants argue that Plaintiff's
malicious abuse of power and abuse of process claims
must be dismissed because the Complaint fails to allege
facts plausibly suggesting that they acted with malice and/
or that they attempted to achieve a collateral purpose
beyond Plaintiff's criminal proceeding. (Id. at 12-14.)
Eighth, the County Defendants argue that Plaintiff's false
arrest claim must be dismissed because (a) the New York
Court of Claims has already determined that there was
probable cause to arrest him, and (b) the Complaint fails
to allege facts plausibly suggesting any involvement by the
County Defendants in Plaintiff's arrest in that Plaintiff
alleges that he was arrested by the New York State
Police following an investigation by the Johnstown Police
Department and then prosecuted by a special prosecutor
from Saratoga County (i.e., Defendant Ashdown). (Id. at
14-15.)
Ninth, the County Defendants argue that the Complaint
fails to allege facts plausibly suggesting a malicious
prosecution claim against them because (a) the Complaint
alleges that Plaintiff's criminal proceeding was initiated by
the New York State Police as well as Defendant Ashdown
and not the County Defendants, (b) Plaintiff did not
receive a favorable termination of the criminal charges
against him, and (c) the New York Court of Claims has
already determined that there was probable cause to arrest
him. (Id. at 15-16.)
Tenth, the County Defendants argue that Plaintiff's
conspiracy claim must be dismissed because the
Complaint fails to allege facts plausibly suggesting a
“meeting of the minds” between the County Defendants
and the other Defendants regarding an agreement to
conspire against Plaintiff. (Id. at 16-17.)
*4 Eleventh, the County Defendants argue that
Plaintiff's state law claim for intentional infliction of
emotional distress must be dismissed because (a) Plaintiff
never served them with a notice of claim, and (b) the
Complaint fails to allege facts plausibly suggesting that
they engaged in extreme or outrageous conduct. (Id. at
18-19.)

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Twelfth, the County Defendants argue that the Complaint
fails to allege facts plausibly suggesting a Monell claim
because it does not cite to and/or describe any Fulton
County policy or custom that allegedly caused him a
constitutional deprivation. (Id. at 20.)
Thirteenth, and finally, the County Defendants argue that
Defendant Louise Sira is entitled to qualified immunity
because (a) she recused herself from Plaintiff's criminal
investigation and prosecution, and (b) the New York
Court of Claims has determined that there was probable
cause to arrest Plaintiff and, therefore, Defendant Louise
Sira did not violate any of his clearly established rights.
(Id. at 21-22.)

b. The Gloversville Defendants'
Memorandum of Law in Chief
The Gloversville Defendants have substantially restated
all of the County Defendants' arguments in support of
their motion to dismiss. (Compare Dkt. No. 14, Attach.
3, at 5-17, 22-23 [Gloversville Defs.' Mem. of Law] with
Dkt. No. 11, Attach. 5, at 7-19 [Cty. Defs.' Mem. of
Law].) Accordingly, for the sake of brevity, the Court will
not repeat those arguments here. Rather, the Court will
merely summarize the three additional arguments that the
Gloversville Defendants assert.
First, the Gloversville Defendants argue that
governmental immunity, which shields public entities
from liability for discretionary actions taken during
the performance of governmental functions, bars any
state law negligence claim asserted against them for the
following reasons: (a) responding to a FOIL request is
a discretionary act; (b) Plaintiff has failed to allege facts
plausibly suggesting that he had a special relationship
with any of the Gloversville Defendants, which acts
as an exception to governmental immunity; and (c)
Plaintiff has not alleged facts plausibly suggesting either
(i) the existence of a City policy or identifiable custom
under which his alleged injury occurred, or (ii) a causal
connection between such policy and a constitutional
deprivation. (Dkt. No. 14, Attach. 3, at 18-19 [Gloversville
Defs.' Mem. of Law].)

dismissed because the Complaint fails to allege specific
facts plausibly suggesting their personal involvement in
the constitutional violations alleged. (Id. at 19-20.) More
specifically, they argue that the only specific allegations
regarding Defendant VanDeusen and Defendant John
Sira are that Defendant Sira responded to a third-party
FOIL request in his capacity as chief FOIL officer for
the Gloversville Police Department. (Id. at 20.) The
Gloversville Defendants argue that Plaintiff's conclusory
allegation that Defendant VanDeusen failed to supervise
Defendant Sira when he responded to the FOIL request is
insufficient to plausibly suggest a constitutional violation
or supervisory liability. (Id.)
Third, the Gloversville Defendants argue that, in any
event, Defendant VanDeusen and Defendant John Sira
are entitled to qualified immunity because (a) even though
these Defendants did not participate in Plaintiff's criminal
investigation, the New York Court of Claims has already
determined that there was probable cause to arrest him,
and (b) the Complaint fails to allege facts plausibly
suggesting that they violated Plaintiff's clearly established
rights, or that they had reason to believe that Plaintiff's
rights were being violated when they processed the nonparty FOIL request. (Id. at 20-22.)

c. Defendant Ashdown's Memorandum of Law in Chief
*5 Defendant Ashdown substantially restates the
County Defendants' arguments in support of his motion
to dismiss. (Compare Dkt. No. 26, Attach. 3, at 7-21
[Ashdown Mem. of Law] with Dkt. No. 11, Attach. 5, at
5-19 [Cty. Defs.' Mem. of Law].) Accordingly, for the sake
of brevity, the Court will not repeat those arguments here.

d. Defendant Bazan's Memorandum of Law in Chief
Defendant Bazan substantially restates the County
Defendants' arguments in support of his motion to
dismiss. (Compare Dkt. No. 27, Attach. 3, at 10-20 [Bazan
Mem. of Law] with Dkt. No. 11, Attach. 5, at 7-19 [Cty.
Defs.' Mem. of Law].) Accordingly, for the sake of brevity,
the Court will not repeat those arguments here.

Second, the Gloversville Defendants argue that any
claims against them in their individual capacities must be

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e. The Johnstown Defendants'
Memorandum of Law in Chief
The Johnstown Defendants substantially restate the
County Defendants' arguments in support of their motion
to dismiss. (Compare Dkt. No. 30, Attach. 3, at 4-7
[Johnstown Defs.' Mem. of Law] with Dkt. No. 11, Attach.
5, at 7-19 [Cty. Defs.' Mem. of Law].) Accordingly, for the
sake of brevity, the Court will not repeat those arguments
here. Rather, the Court will merely summarize the three
additional arguments that the Johnstown Defendants
assert.
First, the Johnstown Defendants argue that Plaintiff's
claims against the Johnstown Police Department must
be dismissed for the following reasons: (a) it is an
administrative arm of the City of Johnstown and,
therefore, does not have its own legal identity; (b) the
County of Fulton is the proper party in interest; and
(c) Plaintiff has failed to allege facts plausibly suggesting
an official policy, practice or custom that caused his
constitutional rights to be violated in order to state a
Monell claim. (Dkt. No. 30, Attach. 3, at 9-10 [Johnstown
Defs.' Mem. of Law].)
Second, the Johnstown Defendants argue that Plaintiff's
state law tort claims for intentional infliction of emotional
distress and negligence must be dismissed because (a) he
failed to serve a notice of claim, and (b) the claims are timebarred by the one-year and ninety-day limitations period.
(Id. at 10-12.)
Third, the Johnstown Defendants argue that Defendants
Gifford and Gilbo are entitled to qualified immunity
because the New York Court of Claims has already
determined that probable cause existed to arrest Plaintiff.
(Id. at 12-13.)

2. Plaintiff's Opposition Memorandum of Law
a. Plaintiff's Memorandum of Law in Opposition
to the County Defendants' Motion to Dismiss
Generally, liberally construed, Plaintiff asserts three
arguments in opposition to the County Defendants'
motion to dismiss. (Dkt. No. 32 [Pl.'s Opp'n Mem. of
Law].)

First, with respect to Defendant Louise Sira, Plaintiff
argues that she is not entitled to prosecutorial immunity
for the following three reasons: (a) she knew that
she was not supposed to interfere with Plaintiff's
prosecution but did so by reviewing statements made by
Defendants, providing Defendant Bazan with a subpoena,
and assisting him throughout his investigation; (b) she
was aware of the conflict of interest regarding her
involvement in the criminal investigation against Plaintiff
but continued to assist in the investigation in order to
find probable cause to arrest him; and (c) she recused
herself only after the criminal investigation had been
completed and she had collected sufficient evidence to
secure Plaintiff's arrest. (Id. at 6-8.)
*6 Second, Plaintiff argues that his Monell and §
1983 claims against the County of Fulton should
not be dismissed for the following reasons: (a) the
County violated N.Y. Gen. Mun. Law § 18 because
of its numerous monetary contracts with the City
of Gloversville and allowing Defendant John Sira to
be employed as Captain of the Gloversville Police
Department and Louise Sira to be employed as district
attorney despite the fact that they are married, which
created an inherent conflict of interest; (b) the County
allowed Defendant Louise Sira to assist in the criminal
investigation against Plaintiff despite the conflict of
interest that existed due to her relationship with Mr.
Andrews; (c) the County turned a blind eye to these
numerous conflicts of interest; and (d) the County is
vicariously liable for the actions of Defendant Ashdown
because it appointed him as special prosecutor to handle
Plaintiff's criminal prosecution. (Id. at 8-9.)
Third, Plaintiff argues that his claims for abuse of process,
false arrest, and conspiracy are not barred by the three
year limitations period for the following reasons: (a)
he did not agree to a plea deal on July 5, 2012, but
instead the criminal charges against him were dropped
on that date and the case was ultimately dismissed on
November 28, 2012; (b) he did not have knowledge of
the substance forming the basis of his claims because
all records were sealed by the N.Y. Supreme Court and
he did not have access to them until they were released
by the N.Y. Attorney General's Office in the subsequent
N.Y. Court of Claims action on July 13, 2013; and (c)
he received additional information regarding his claims

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during Defendant Bazan's deposition on May 30, 2013.
(Id. at 14.)

b. Plaintiff's Memorandum of Law in Opposition
to the Gloversville Defendants' Motion to Dismiss
Generally, liberally construed, Plaintiff asserts four
arguments in opposition to the Gloversville Defendants'
motion to dismiss. (Dkt. No. 35 [Pl.'s Opp'n Mem. of
Law].)
First, with respect to Defendant John Sira, Plaintiff
argues as follows: (a) he conspired with other Defendants
and allowed “in-house” police reports to be used in
Plaintiff's criminal prosecution, to maliciously prosecute
him, and to coerce him into taking a plea deal; (b) he
impermissibly sent these “in-house” police reports to Mr.
Andrews's attorney, Gerard McAuliffe, at his request so
that they could be used against him; and (c) he ordered
his subordinates at the Gloversville Police Department to
harass Plaintiff and his family. (Id. at 6-8.) Because of
these actions, Plaintiff argues that Defendant John Sira
was forced into an early retirement from the Gloversville
Police Department. (Id. at 9.)
Second, with respect to Defendant VanDeusen and the
Gloversville Police Department, Plaintiff argues that they
(a) harassed and discriminated against his family, and (b)
willfully ignored Defendant John Sira's unlawful conduct.
(Id. at 8.)
Third, Plaintiff argues that the Gloversville Defendants
are not entitled to qualified immunity because (a) they
violated his constitutional rights, (b) Defendant John Sira
violated FOIL laws and police department policies, and
(c) Defendant John Sira was aware that his conduct was
unlawful while Defendant VanDeusen was aware of this
conduct as well but failed to intervene. (Id. at 12-13.)
Fourth, and finally, Plaintiff argues that his claims are not
time-barred for the reasons discussed above in Part II.2.a.
of this Decision and Order.

c. Plaintiff's Memorandum of Law in Opposition
to Defendant Ashdown's Motion to Dismiss

Generally, liberally construed, Plaintiff asserts three
arguments in opposition to Defendant Ashdown's motion
to dismiss. (Dkt. No. 51 [Pl.'s Opp'n Mem. of Law].)
First, Plaintiff argues that Defendant Ashdown violated
his right to due process when Defendant Ashdown
impermissibly conditioned any plea agreement to drop the
criminal charges against Plaintiff on Plaintiff agreeing to
discontinue his civil lawsuit against Mr. Andrews, paying
for the locks to be changed on the subject premises, and
moving his property out of Mr. Andrew's building. (Id. at
10-11.)
*7 Second, Plaintiff argues that Defendant Ashdown
conspired with Defendant Bazan by using his arrest as
leverage to get the civil lawsuit against Mr. Andrews
dismissed. (Id. at 11.) Furthermore, Plaintiff argues that
Defendant Ashdown conspired with Mr. McAuliffe by
impermissibly requesting, and receiving, the “in-house”
police reports from Mr. McAuliffe, which were then used
against Plaintiff in his criminal prosecution. (Id. at 11-12.)
Third, Plaintiff argues that Defendant Ashdown is not
entitled to prosecutorial or qualified immunity for the
following four reasons: (a) Defendant Ashdown violated
Plaintiff's constitutional rights on numerous occasions
as described above; (b) there was no probable cause
to charge Plaintiff with felony forgery, a fact that
Defendant Ashdown was aware of; (c) despite the lack of
probable cause, Defendant Ashdown maliciously pursued
the criminal charge anyway in an attempt to get Plaintiff's
civil lawsuit dismissed against Mr. Andrews; and (d)
Defendant Ashdown's actions were outside the scope of
his duties as prosecutor. (Id. at 12-13.)

d. Plaintiff's Memorandum of Law in Opposition
to Defendant Bazan's Motion to Dismiss
Generally, liberally construed, Plaintiff asserts two
arguments in opposition to Defendant Bazan's motion to
dismiss. (Dkt. No. 50 [Pl.'s Opp'n Mem. of Law].)
First, Plaintiff argues that Defendant Bazan is not entitled
to qualified immunity because (a) he tampered with
evidence, coerced witness statements, and intentionally
ignored exculpatory evidence, and (b) he engaged in
unlawful conduct by tampering with evidence. (Id. at 10.)

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Second, Plaintiff argues that Defendant Bazan tampered
with the videotape containing his interview at the police
station. (Id. at 7, 11, 14.) In addition, Plaintiff argues
that the tampering with the videotape, coupled with the
tampering of witness statements, negates the probable
cause for his arrest. (Id. at 11.)

e. Plaintiff's Memorandum of Law in Opposition
to the Johnstown Defendants' Motion to Dismiss
Generally, liberally construed, Plaintiff asserts three
arguments in opposition to the Johnstown Defendants'
motion to dismiss. (Dkt. No. 48 [Pl.'s Opp'n Mem. of
Law].)
First, Plaintiff argues that Defendant Gilbo is not entitled
to qualified immunity because (a) he violated Plaintiff's
constitutional rights by falsifying evidence and submitting
it to the court in order to facilitate Plaintiff's malicious
prosecution, (b) he did not comply with Plaintiff's FOIL
request but instead provided Plaintiff with an edited copy
of his video taped interview at the police station, and (c)
he has threatened Plaintiff's life for pursuing this matter
against him. (Id. at 12-13.)
Second, Plaintiff argues that he has alleged facts plausibly
suggesting a Monell claim because he has alleged that the
Johnstown Police Department violated FOIL request laws
by tampering with the evidence that he requested. (Id. at
11.)
Third, Plaintiff argues that his claim is not time-barred by
the three-year statute of limitations period because he first
learned on August 14, 2012, that the video taped disk of
his interview at the police station was tampered with. (Id.
at 8.)

the following reasons: (a) Plaintiff's various admissions
and evidence contained in his opposition papers make
it clear that Defendant Louise Sira played no role in
his prosecution or the decision to arrest him; (b) even if
Defendant Louise Sira processed a subpoena before being
recused, this conduct was clearly within the scope of her
duties in initiating and pursuing a criminal prosecution;
and (c) Plaintiff's claim that Defendant Louise Sira
conspired with Defendant John Sira is speculative at best.
(Id. at 2-3.)
*8 Second, the County Defendants argue that Plaintiff's
§ 1983 claims are time-barred because his excuse that he
did not have access to his criminal legal file until it was
released by the New York Attorney General's Office is not
valid for purposes of tolling the limitations period. (Id. at
3-4.) More specifically, the County Defendants argue that
Plaintiff, as a defendant in a criminal prosecution, had
knowledge of the charges against him and was present and
acting on his own behalf when the charges were eventually
dismissed. (Id. at 4.)
Third, the County Defendants argue that Plaintiff's claims
under §§ 1981, 1983, 1985, and 1986 should be dismissed
for the reasons stated in their memorandum of law. (Id.
at 4-5.)
Fourth, the County Defendants argue that Plaintiff's
claim for intentional infliction of emotional distress
should be dismissed because (a) he admits that he never
served a notice of claim, and (b) he has not alleged
facts plausibly suggesting that they engaged in extreme or
outrageous conduct. (Id. at 5-6.)
Fifth, the County Defendants argue that Plaintiff's Monell
claim must be dismissed because he has failed to allege
facts plausibly suggesting and/or describing a policy or
custom that caused his constitutional deprivations. (Id. at
6.)

3. Defendants Respective Reply Memoranda of Law
a. The County Defendants' Reply Memorandum of Law
Generally, the County Defendants assert seven arguments
in reply to Plaintiff's opposition. (Dkt. No. 37 [Cty. Defs.'
Reply Mem. of Law].)

Sixth, the County Defendants argue that Defendant
Louise Sira is entitled to qualified immunity because, even
if she did not recuse herself, the Complaint still does not
allege facts plausibly suggesting anything that would have
informed her that (a) there was insufficient probable cause
to arrest Plaintiff, and (b) she acted unlawfully or violated
Plaintiff's constitutional rights. (Id. at 6-7.)

First, the County Defendants argue that Defendant
Louise Sira is entitled to prosecutorial immunity for

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Seventh, the County Defendants argue that Plaintiff
should not be given an opportunity to amend his
Complaint because any amendments would be futile
for the following two reasons: (a) the documentary
evidence submitted by Plaintiff in his opposition papers
demonstrate that the County Defendants had nothing
to do with his criminal investigation, arrest, and/or
prosecution; and (b) his federal claims are time-barred by
the applicable statute of limitations. (Id. at 7-8.)

b. The Gloversville Defendants'
Reply Memorandum of Law
Generally, the Gloversville Defendants assert six
arguments in reply to Plaintiff's opposition. (Dkt. No. 38
[Gloversville Defs.' Reply Mem. of Law].)
First, the Gloversville Defendants argue that Plaintiff's
§ 1983 claims for malicious abuse of power, abuse of
process, false arrest, and conspiracy are time-barred
because, contrary to Plaintiff's argument that he did not
have the requisite knowledge regarding these claims until
a later date, Plaintiff had knowledge of the charges levied
against him (as the defendant in a criminal proceeding)
and was present when the criminal charges were eventually
dismissed. (Id. at 3-4.)
Second, the Gloversville Defendants argue that Plaintiff's
§§ 1981, 1983, 1985, and 1986 claims should be dismissed
for the reasons stated in their memorandum of law. (Id.
at 4.) Similarly, the Gloversville Defendants argue that
Plaintiff has failed to allege facts plausibly suggesting a
claim for malicious abuse of power, abuse of process,
false arrest, malicious prosecution, and conspiracy for the
reasons set forth in their memorandum of law. (Id. at
4-5.) In addition, the Gloversville Defendants argue that
Plaintiff has failed to make any arguments in opposition to
their motion to dismiss demonstrating that they had any
involvement in the allegations serving as the basis for these
claims. (Id. at 5.)
*9 Third, the Gloversville Defendants argue that
Plaintiff has not opposed their arguments for dismissal
of his intentional infliction of emotional distress and
negligence claims and has not offered an explanation
regarding his failure to serve a notice of claim. (Id.)

Fourth, the Gloversville Defendants argue that Plaintiff
has not opposed their arguments regarding his failure to
allege facts plausibly suggesting the personal involvement
of Defendants VanDeusen and John Sira in the alleged
constitutional violations. (Id. at 6.)
Fifth, the Gloversville Defendants argue that Defendants
VanDeusen and John Sira are entitled to qualified
immunity and Plaintiff has failed to allege facts plausibly
suggesting a Monell claim for the reasons stated in their
memorandum of law. (Id. at 6-7.)
Sixth, the Gloversville Defendants argue that Plaintiff
should not be given an opportunity to amend his
Complaint because any amendments would be futile for
the following reasons: (1) the attachments to Plaintiff's
opposition papers demonstrate that the Gloversville
Defendants were not involved with Plaintiff's criminal
investigation, arrest and/or prosecution; and (2) the
statute of limitations regarding the majority of Plaintiff's
claims has expired. (Id. at 7-8.)

c. The Johnstown Defendants'
Reply Memorandum of Law
Generally, the Johnstown Defendants assert eight
arguments in reply to Plaintiff's opposition. (Dkt. No. 47
[Johnstown Defs.' Reply Mem. of Law].)
First, the Johnstown Defendants restate their argument
from their memorandum of law that all of Plaintiff's § 1983
claims, with the exception of his malicious prosecution
claim, are time-barred and Plaintiff has failed to oppose
the dismissal of those claims on this basis. (Id. at 2.)
Second, the Johnstown Defendants restate their argument
from their memorandum of law that Plaintiff's malicious
prosecution claim should be dismissed because (a)
Plaintiff has failed to allege facts plausibly suggesting that
the Johnstown Defendants initiated a criminal proceeding
against him, (b) a termination in the interest of justice is
not a favorable termination, (c) the N.Y. Court of Claims
has already determined that probable cause existed for
Plaintiff's arrest, and (d) Plaintiff has failed to allege facts
plausibly suggesting either malice or that the Johnstown
Defendants attempted to achieve a collateral purpose
beyond Plaintiff's criminal proceeding. (Id. at 2-4.)

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Third, the Johnstown Defendants restate their argument
from their memorandum of law that Plaintiff has failed
to allege facts plausibly suggesting a claim under §§ 1981,
1985, and 1986. (Id. at 4-5.)
Fourth, the Johnstown Defendants restate their argument
that Plaintiff has failed to allege facts plausibly suggesting
the personal involvement of Defendant Gifford in a
violation of Plaintiff's constitutional rights and Plaintiff's
allegation that Defendant Gifford advised him over the
telephone that he “ shouldn't of did what [he] did” and
hung up is insufficient to state a claim. (Id. at 5.)
Fifth, the Johnstown Defendants restate their arguments
from their memorandum of law that the claims against the
Johnstown Police Department must be dismissed because
it is a nonlegal entity and he has failed to allege facts
plausibly suggesting a Monell claim. (Id. at 5-6.)
*10 Sixth, the Johnstown Defendants argue that
Plaintiff's state law claims must be dismissed because
(a) he failed to serve a notice of claim, and (b) they
are time-barred by the one-year-and-ninety-day statute of
limitations period. (Id. at 6-7.)
Seventh, the Johnstown Defendants restate their
arguments from their memorandum of law that
Defendants Gifford and Gilbo are entitled to qualified
immunity. (Id. at 7-8.)
Eighth, the Johnstown Defendants argue that Plaintiff
should not be given an opportunity to amend his
Complaint because any amendments would be futile. (Id.
at 8-10.)

d. Defendant Ashdown's Reply Memorandum of Law
Generally, Defendant Ashdown asserts seven arguments
in reply to Plaintiff's opposition. (Dkt. No. 52 [Def.
Ashdown's Reply Mem. of Law].)
First, Defendant Ashdown argues that the Court should
disregard Plaintiff's opposition papers because they were
filed three days after the deadline set by the Court and
Plaintiff has not offered any explanation for his delayed
filing. (Id. at 2.)

Second, Defendant Ashdown argues that, even if the
Court considers Plaintiff's opposition papers, he is still
entitled to prosecutorial immunity because (a) Plaintiff's
admissions and “evidence” contained in his opposition
papers demonstrate that Defendant Ashdown acted
exclusively within his role as special prosecutor, (b)
all activities Plaintiff argues that Defendant Ashdown
engaged in were also within the scope of his duties in
initiating and pursuing a criminal prosecution, and (c)
Plaintiff's continued speculation that Defendant Ashdown
acted in concert with law enforcement agents or the other
Defendants is speculative at best and does not plausibly
suggest a claim. (Id. at 2-3.)
Third, Defendant Ashdown restates the argument from
his memorandum of law that Plaintiff's § 1983 claims
for malicious abuse of power, abuse of process, false
arrest, and conspiracy are time-barred by the statute of
limitations. (Id. at 3.)
Fourth, Defendant Ashdown restates his arguments from
his memorandum of law that Plaintiff has failed to allege
facts plausibly suggesting a claim under §§ 1981, 1983,
1985, and 1986. (Id. at 4.)
Fifth, Defendant Ashdown argues that Plaintiff has failed
to allege facts plausibly suggesting a claim for intentional
infliction of emotional distress because (a) any alleged
tortious acts by Defendant Ashdown were taken within
the scope of his role as special prosecutor, (b) Plaintiff
has offered nothing more than conclusory assertions
that Defendant Ashdown acted in concert with other
Defendants for personal and/or nefarious reasons, and
(c) no rational fact-finder could find that Defendant
Ashdown engaged in extreme and outrageous conduct.
(Id. at 5.)
Sixth, Defendant Ashdown argues that he is entitled
to qualified immunity for the reasons stated in his
memorandum of law. (Id. at 5-6.)
Seventh, and finally, Defendant Ashdown argues that,
for the foregoing reasons, Plaintiff should not be given
an opportunity to amend his Complaint because any
amendments would be futile. (Id. at 6-7.)

e. Defendant Bazan's Reply Memorandum of Law

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Generally, Defendant Bazan asserts four arguments in
reply to Plaintiff's opposition. (Dkt. No. 55 [Def. Bazan's
Reply Mem. of Law].)
First, Defendant Bazan argues that Plaintiff's opposition
papers should not be considered because they were filed
after the deadline set by this Court. (Id. at 1.)
*11 Second, Defendant Bazan argues that Plaintiff has
failed to refute the fact that the N.Y. Court of Claims
has already determined that probable cause existed for his
arrest. (Id.)
Third, Defendant Bazan argues that Plaintiff has failed
to respond to the arguments that his claims are timebarred and that Defendant Bazan is entitled to qualified
immunity. (Id. at 2.)
Fourth, and finally, Defendant Bazan argues that Plaintiff
should not be given an opportunity to amend his
Complaint because (1) any amendments would be futile,
(2) Plaintiff has not filed a proposed amended complaint,
and (3) there are no meritorious claims that can be asserted
against Defendant Bazan. (Id.)

III. RELEVANT LEGAL STANDARD
It has long been understood that a dismissal for failure to
state a claim upon which relief can be granted, pursuant
to Fed. R. Civ. P. 12(b)(6), can be based on one or both
of two grounds: (1) a challenge to the “sufficiency of the
pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a challenge
to the legal cognizability of the claim. Jackson v. Onondaga
Cty., 549 F. Supp. 2d 204, 211, nn. 15-16 (N.D.N.Y. 2008)
(McAvoy, J., adopting Report-Recommendation on de
novo review).
Because such dismissals are often based on the first
ground, a few words regarding that ground are
appropriate. Rule 8(a)(2) of the Federal Rules of Civil
Procedure requires that a pleading contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added].
In the Court's view, this tension between permitting
a “short and plain statement” and requiring that the
statement “show [ ]” an entitlement to relief is often at
the heart of misunderstandings that occur regarding the
pleading standard established by Fed. R. Civ. P. 8(a)(2).

On the one hand, the Supreme Court has long
characterized the “short and plain” pleading standard
under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.”
Jackson, 549 F. Supp. 2d at 212, n.20 (citing Supreme
Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the
pleading standard under Fed. R. Civ. P. 8(a)(2) requires
that the pleading contain a statement that “give[s] the
defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice
has the important purpose of “enabl[ing] the adverse
party to answer and prepare for trial” and “facilitat[ing]
a proper decision on the merits” by the court. Jackson,
549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32
(N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit
cases). For this reason, as one commentator has correctly
observed, the “liberal” notice pleading standard “has its
limits.” 2 Moore's Federal Practice § 12.34[1][b] at 12-61
(3d ed. 2003). For example, numerous Supreme Court
and Second Circuit decisions exist holding that a pleading
has failed to meet the “liberal” notice pleading standard.
Rusyniak, 629 F. Supp. 2d at 213, n.22 (citing Supreme
Court and Second Circuit cases); see also Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949-52 (2009).
*12 Most notably, in Bell Atl. Corp. v. Twombly, the
Supreme Court reversed an appellate decision holding
that a complaint had stated an actionable antitrust claim
under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127
S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the
famous statement by the Court in Conley v. Gibson, 355
U.S. 41, 45-46 (1957), that “a complaint should not be
dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.”
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the
conceivability of an actionable claim, the Court clarified,
the “fair notice” standard turns on the plausibility of an
actionable claim. Id. at 1965-74. The Court explained that,
while this does not mean that a pleading need “set out in
detail the facts upon which [the claim is based],” it does
mean that the pleading must contain at least “some factual
allegation[s].” Id. at 1965. More specifically, the “[f]actual
allegations must be enough to raise a right to relief above
the speculative level [to a plausible level],” assuming (of

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course) that all the allegations in the complaint are true.
Id.

absolutely suspended.” Jackson, 549 F. Supp. 2d at 214,

As for the nature of what is “plausible,” the Supreme
Court explained that “[a] claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009). “[D]etermining whether a complaint
states a plausible claim for relief ... [is] a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.... [W]here the wellpleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint
has alleged–but it has not show[n]–that the pleader is
entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal
quotation marks and citations omitted]. However, while
the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it
“does not impose a probability requirement.” Twombly,
550 U.S. at 556.

1

Because of this requirement of factual allegations
plausibly suggesting an entitlement to relief, “the tenet
that a court must accept as true all of the allegations
contained in the complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of
a cause of action, supported by merely conclusory
statements, do not suffice.” Iqbal, 129 S. Ct. at
1949. Similarly, a pleading that only “tenders naked
assertions devoid of further factual enhancement” will
not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations
and alterations omitted). Rule 8 “demands more
than an unadorned, the-defendant-unlawfully-harmedme accusation.” Id. (citations omitted).
This pleading standard applies even to pro se litigants.
While the special leniency afforded to pro se civil rights
litigants somewhat loosens the procedural rules governing
the form of pleadings (as the Second Circuit has observed),
it does not completely relieve a pro se plaintiff of the
duty to satisfy the pleading standards set forth in Fed.
R. Civ. P. 8, 10 and 12. 1 Rather, as both the Supreme
Court and Second Circuit have repeatedly recognized, the
requirements set forth in Fed. R. Civ. P. 8, 10 and 12
are procedural rules that even pro se civil rights plaintiffs
must follow. 2 Stated more simply, when a plaintiff is
proceeding pro se, “all normal rules of pleading are not

n.28 [citations omitted]. 3

2

3

See Vega v. Artus, 610 F. Supp. 2d 185, 196 & nn.8-9
(N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit
cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34 (citing
Second Circuit cases).
See Rosendale v. Brusie, 374 Fed.Appx. 195, 196 (2d
Cir. 2010) (“[A]lthough the courts remain obligated to
construe a pro se complaint liberally, ... the complaint
must contain sufficient factual allegations to meet
the plausibility standard.”); Vega, 610 F. Supp. 2d at
196, n.10 (citing Supreme Court and Second Circuit
cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34 (citing
Second Circuit cases).
It should be emphasized that Fed. R. Civ. P. 8's
plausibility standard, explained in Twombly, was in
no way retracted or diminished by the Supreme
Court's decision (two weeks later) in Erickson v.
Pardus, in which (when reviewing a pro se pleading)
the Court stated, “Specific facts are not necessary”
to successfully state a claim under Fed. R. Civ. P.
8(a)(2). Erickson v. Pardus, 127 S. Ct. 2197, 2200
(2007) [emphasis added]. That statement was merely
an abbreviation of the often-repeated point of law–
first offered in Conley and repeated in Twombly–that
a pleading need not “set out in detail the facts upon
which [the claim is based]” in order to successfully
state a claim. Twombly, 127 S. Ct. 1965, n.3 (citing
Conley, 355 U.S. at 47) [emphasis added]. That
statement did not mean that all pleadings may achieve
the requirement of “fair notice” without ever alleging
any facts whatsoever. Clearly, there must still be
enough fact set out (however set out, whether in detail
or in a generalized fashion) to raise a right to relief
above the speculative level to a plausible level. See
Rusyniak, 629 F. Supp. 2d at 214 & n.35 (explaining
holding in Erickson).

*13 Finally, a few words are appropriate regarding
what documents are considered when a dismissal for
failure to state a claim is contemplated. Generally,
when contemplating a dismissal pursuant to Fed. R.
Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following
matters outside the four corners of the complaint may be
considered without triggering the standard governing a
motion for summary judgment: (1) documents attached
as an exhibit to the complaint or answer, (2) documents
incorporated by reference in the complaint (and provided
by the parties), (3) documents that, although not
incorporated by reference, are “integral” to the complaint,

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or (4) any matter of which the court can take judicial

defendant's motion to dismiss, without converting the
proceeding to one for summary judgment.”) (internal
quotation marks and citation omitted).

4

notice for the factual background of the case. Moreover,
in the Second Circuit, a pro se plaintiff's papers in response
to a defendant's motion to dismiss for failure to state
a claim may be considered as effectively amending the
allegations of his complaint–to the extent those papers are
consistent with the allegations in the complaint. 5
4

See Fed. R. Civ. P. 10(c) (“A copy of any written
instrument which is an exhibit to a pleading is a part
thereof for all purposes.”); L-7 Designs, Inc. v. Old
Navy, LLC, No. 10-573, 2011 WL 2135734, at *1
(2d Cir. June 1, 2011) (explaining that conversion
from a motion to dismiss for failure to state a
claim to a motion for summary judgment is not
necessary under Fed. R. Civ. P. 12[d] if the “matters
outside the pleadings” in consist of [1] documents
attached to the complaint or answer, [2] documents
incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although
not incorporated by reference, are “integral” to the
complaint, or [4] any matter of which the court can
take judicial notice for the factual background of the
case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,
111 (2d Cir. 2010) (explaining that a district court
considering a dismissal pursuant to Fed. R. Civ. 12(b)
(6) “may consider the facts alleged in the complaint,
documents attached to the complaint as exhibits,
and documents incorporated by reference in the
complaint.... Where a document is not incorporated
by reference, the court may neverless consider it where
the complaint relies heavily upon its terms and effect,
thereby rendering the document ‘integral’ to the
complaint.... However, even if a document is ‘integral’
to the complaint, it must be clear on the record
that no dispute exists regarding the authenticity or
accuracy of the document. It must also be clear
that there exist no material disputed issues of fact
regarding the relevance of the document.”) [internal
quotation marks and citations omitted]; Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2009) (“The complaint is deemed to include any
written instrument attached to it as an exhibit or
any statements or documents incorporated in it by
reference.”) (internal quotation marks and citations
omitted); Int'l Audiotext Network, Inc. v. Am. Tel. &
Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam)
(“[W]hen a plaintiff chooses not to attach to the
complaint or incorporate by reference a [document]
upon which it solely relies and which is integral
to the complaint,” the court may nevertheless take
the document into consideration in deciding [a]

5

See Drake v. Delta Air Lines, Inc., 147 F.3d 169,
170 n.1 (2d Cir. 1998) (per curiam) (“[W]e deem
Drake's complaint to include the facts contained in
his memorandum of law filed in response to Delta's
1996 motion to dismiss.”); Gill v. Mooney, 824 F.2d
192, 195 (2d Cir. 1987) (“In his affidavit submitted
in opposition to defendants' motion to dismiss, Gill
asserts that Mooney's actions amounted to deliberate
and willful indifference. Liberally construed under
pro se pleading standards, Gill's allegations against
Mooney involve more than ordinary lack of due
care for the prisoner's interests or safety, ... and
therefore state a colorable claim under the Eighth
and Fourteenth Amendments.”) (internal quotation
marks and citation omitted); Donhauser v.Goord, 314
F. Supp. 2d 119, 212 (N.D.N.Y.) (Sharpe, M.J.)
(“[I]n cases where a pro se plaintiff is faced with a
motion to dismiss, it is appropriate for the court to
consider materials outside of the complaint to the
extent they “are consistent with the allegations in the
complaint.”) (collecting district court cases), vacated
on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y.
2004) (Hurd, J.).

IV. ANALYSIS
*14 As an initial matter, the Court must determine
what extraneous documents it may consider in deciding
Defendants' respective motions. More specifically,
Defendants have submitted a decision and order from the
New York Court of Claims in a related state court action
where Plaintiff sued the State of New York for false arrest
and defamation. (Dkt. No. 11, Attach. 4 [N.Y. Court of
Claims Op.].) Defendants argue that the Court can take
judicial notice of this document. (Dkt. No. 11, Attach. 5,
at 3 [Cty. Defs.' Mem. of Law].) In opposing Defendants'
respective motions, Plaintiff appears to have submitted
all of the exhibits that were filed in that action, including
various deposition transcripts. (Dkt. No. 51, Attach. 1.)
As discussed above in Part III of this Decision and Order,
there are four circumstances under which the Court may
consider materials outside of the pleadings, including
documents that the Court may take judicial notice of.
State court decisions are clearly public documents that
fall under this category. See Johnson v. Pugh, 11-CV-0385,
2013 WL 3013661, at *2 (E.D.N.Y. June 18, 2013) (stating
that, “[a] court may take judicial notice of matters of

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public record, including ... decisions in prior state court
adjudications”); accord, Nemeth v. Vill. of Hancock, 10CV-1161, 2011 WL 56063, at *1 n.3 (N.D.N.Y. Jan.
7, 2011) (McAvoy, J.) (collecting cases); Barnes v. Cty.
of Monroe, 85 F. Supp. 3d 696, 723 (W.D.N.Y. 2015).
Therefore, the Court agrees with Defendants that it may
take judicial notice of the decision and order from the New
York Court of Claims. However, in so doing, the Court
may take judicial notice “only to establish the existence of
the opinion, not for the truth of the facts asserted in the
opinion.” Glob. Network Commc'ns, Inc. v. City of New
York, 458 F.3d 150, 157 (2d Cir. 2006) (internal quotations
and citation omitted).
The Court reaches a different conclusion with respect to
the documents submitted by Plaintiff for the following
three reasons. First, Plaintiff does not explain how the
documents may be properly considered by the Court.
Although it is conceivable that they could be considered
public documents, Plaintiff admits that not all of the
exhibits (without identifying which ones) were properly
filed with the New York Court of Claims. (Dkt. No.
51, at 16 [Pl.'s Opp'n Mem. of Law] [stating that “my
evidence was not submitted in the right form and was not
considered”].) Similarly, the decision and order indicates
that the New York Court of Claims did not consider the
exhibits submitted by Plaintiff. (Dkt. No. 11, Attach. 4, at
7.)
Second, with respect to the deposition transcripts, the
Court finds that they cannot be properly considered
as either incorporated by reference or integral to the
Complaint. The Complaint neither expressly references
the depositions, nor does it bear any indication that they
were substantially relied upon in its drafting. See Goel
v. Bunge, Ltd., 820 F.3d 554, 560 (2d Cir. 2016) (finding
error in district court's decision to consider deposition
testimony from an underlying state court action and
stating that “[a] complaint that alleges facts related to
or gathered during a separate litigation does not open
the door to consideration, on a motion to dismiss, of
any and all documents filed in connection with that
litigation”); see also Allstate Ins. Co. v. Rozenberg, 771 F.
Supp. 2d 254, 268 (E.D.N.Y. 2011) (declining to consider
deposition transcript because the complaint did not make
any reference to it and the plaintiffs did not “purport to
have relied on [the] deposition in crafting the allegations”).

Third, in any event, the Court has reviewed the exhibits
submitted by Plaintiff and it is apparent that, even if the
Court were to consider them, they are immaterial to the
Court's adjudication of Defendants' respective motions.
*15 Having resolved this issue, the Court now turns to
its analysis of the issues raised in Defendants' respective
motions.

A. Whether Plaintiff's Malicious Prosecution Claim
Should Be Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative for the reasons stated
in Defendants' respective memoranda of law. See, supra,
Part II of this Decision and Order. To those reasons, the
Court adds the following analysis.
“To state a claim for malicious prosecution under New
York law, the plaintiff must show: (1) the defendant
initiated a criminal proceeding; (2) the proceeding
terminated in plaintiff's favor; (3) there was no probable
cause for the criminal charge; and (4) the defendant acted
maliciously.” Brandon v. City of New York, 705 F. Supp.
2d 261, 272 (S.D.N.Y. 2010) (internal quotation marks
omitted). “In addition, the Court of Appeals requires that
in order ‘to sustain a § 1983 malicious prosecution claim,
there must be a seizure or other perversion of proper
legal procedures implicating claimant's personal liberty
and privacy interests under the Fourth Amendment.’ ”
Brandon, 705 F. Supp. 2d at 272 (quoting Washington v.
Cty. of Rockland, 373 F.3d 310, 316 [2d Cir. 2004]).
As discussed above, Defendants argue that this claim
should be dismissed because (1) the dismissal of Plaintiff's
criminal proceeding in the interest of justice is not a
termination in his favor, and (2) the New York Court of
Claims has determined that there was probable cause for
Plaintiff's arrest. With respect to the first argument, it is
true that the Second Circuit has held that “[a] dismissal
‘in the interest of justice’ under [N.Y. Crim. Proc. Law §
170.40] cannot provide the favorable termination required
as the basis for a claim of malicious prosecution.” Lynch
v. Suffolk Cty. Police Dep't, Inc., 348 Fed.Appx. 672,
674 (2d Cir. 2009) (internal quotations omitted); accord,
Murphy v. Gibbons, 13-CV-1433, 2014 WL 4828126, at
*6 (N.D.N.Y. Sept. 29, 2014) (Sharpe, C.J.). However,
other courts in this Circuit have recognized that, in
Cantalino v. Danner, 96 N.Y.2d 391 (N.Y. 2001), the
New York Court of Appeals rejected this proposition

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as a per se rule. See Guzman v. U.S., 11-CV-5834, 2013
WL 543343, at *8 (S.D.N.Y. Feb. 14, 2013) (stating
that, “[b]ecause Lynch relies on Hygh, it appears that
the Second Circuit overlooked the Court of Appeals'
clarification of the law in Cantalino. Indeed, even after
the Second Circuit decided Lynch, other judges [in this
Circuit] have seen fit to apply the rule of Cantalino.”);
see also Norton v. Town of Brookhaven, 47 F. Supp. 3d
152, 160 (E.D.N.Y. 2014) (collecting cases). Indeed, in
Cantalino, the New York Court of Appeals explained
that, while “there are circumstances where a dismissal
in the interest of justice is inconsistent with innocence
because it represents mercy requested or accepted by the
accused,” the Court's past decisions did “not establish a
per se rule that a dismissal in the interest of justice can
never constitute a favorable termination. Rather ... the
question is whether, under the circumstances of each case,
the disposition was inconsistent with the innocence of the
accused.” Cantalino, 96 N.Y. 2d at 396-97.
*16 The Court need not linger on this issue, however,
because it agrees with Defendants' second argument:
that dismissal of Plaintiff's malicious prosecution claim
is warranted on the grounds that the N.Y. Court of
Claims has already determined that probable cause existed
for his arrest. See Martin v. Cty. of Nassau, 692 F.
Supp. 2d 282, 293 (E.D.N.Y. 2010) (“[T]he Court takes
judicial notice of the fact that another court has already
found probable cause for the plaintiff's arrest.”). Although
Plaintiff appears to contest this determination in his
opposition papers, he is collaterally estopped from doing
so. Specifically, “[t]he doctrine of collateral estoppel,
or issue preclusion, refers to the effect of a judgment
in foreclosing relitigation of a matter that has been
litigated and decided.” Sahni v. Legal Servs. of the Hudson
Valley, 14-CV-1616, 2015 WL 4879160, at *3 (S.D.N.Y.
Aug. 13, 2015). “[I]nferior federal courts have no subject
matter jurisdiction over suits that seek direct review of
judgments of state courts, or that seek to resolve issues
that are ‘inextricably intertwined’ with earlier state court
determinations.” Vargas v. City of New York, 377 F.3d
200, 205 (2d Cir. 2004). Under federal law, collateral
estoppel applies when: “(1) the identical issue was raised in
a previous proceeding; (2) the issue was actually litigated
and decided in the previous proceeding; (3) the party had
a full and fair opportunity to litigate the issue; and (4) the
resolution of the issue was necessary to support a valid and
final judgment on the merits.” Austin v. Downs, Rachlin &
Martin, 270 Fed.Appx. 52, 53-54 (2d Cir. 2008). Similarly,

under New York law, federal courts must give preclusive
effect to state court judgments “if the issue in the second
action is identical to an issue which was raised, necessarily
decided and material in the first action, and the plaintiff
had a full and fair opportunity to litigate the issue in an
earlier action.” LaFleur v. Whitman, 300 F.3d 256, 271 (2d
Cir. 2002).
Here, the N.Y. Court of Claims dismissed Plaintiff's false
arrest claim as a matter of law, finding that “Claimant
fails to raise any genuine issues of material fact which
illustrate that Investigator Bazan lacked probable cause
to believe that a crime had been committed.” (Dkt. No.
11, Attach. 4, at 6.) The Court of Claims then held that,
because “Claimant's arrest is privileged ... Defendant is
entitled to summary judgment dismissing the cause of
action alleging false arrest.” (Id. at 7.) A lack of probable
cause is a necessary element of claims for false arrest
and malicious prosecution. Furthermore, Plaintiff had a
full and fair opportunity to litigate the issue of probable
cause through the summary judgment motion filed in the
N.Y. Court of Claims. See Tobias v. First City Nat'l Bank
& Trust Co., 709 F. Supp. 1266, 1270 (S.D.N.Y. 1989)
(stating that “[a] fully litigated and opposed summary
judgment determination can constitute the requisite full
and fair opportunity to litigate”). Accordingly, because
Plaintiff cannot establish that probable cause was lacking,
his malicious prosecution claim is dismissed. See Mitchell
v. Hartnett, 262 F. Supp. 2d 153, 155 (S.D.N.Y. 2003)
(state court decision collaterally estopped plaintiff from
relitigating the lawfulness of his arrest via § 1983
claim); Boomer v. Bruno, 134 F. Supp. 2d 262, 268-69
(N.D.N.Y. 2001) (Kahn, J.) (dismissing § 1983 malicious
prosecution claim where state court previously determined
the issue); Graebe v. Falcetta, 726 F. Supp. 36, 38
(E.D.N.Y. 1989) (giving preclusive effect to probable
cause determination in underlying state court action
when dismissing subsequent § 1983 malicious prosecution
claim).

B. Whether Plaintiff's § 1983 Claims for “Malicious
Abuse of Power,” 6 Malicious Abuse of Process, and
False Arrest Are Time-Barred
6

Although Plaintiff titles this claim as “Malicious
Abuse of Power,” it is clear from a reading of
the substantive allegations that this is a claim for
malicious abuse of process. (Dkt. No. 1, at 9 [Pl.'s
Compl.].)

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After carefully considering the matter, the Court answers
this question in the affirmative for the reasons stated
in Defendants' respective memoranda of law. See, supra,
Part II of this Decision and Order. To those reasons, the
Court adds the following analysis.
“Under New York law, the statute of limitations for §
1983 claims, including false arrest and malicious abuse
of process, is three years.” Anderson v. Cty. of Putnam,
14-CV-7162, 2016 WL 297737, at *2 (S.D.N.Y. Jan. 22,
2016). A § 1983 claim accrues “when the alleged conduct
has caused the claimant harm and the claimant knows or
has reason to know of the allegedly impermissible conduct
and the resulting harm.” Veal v. Geraci, 23 F.3d 722, 724
(2d Cir. 1994); see also Singleton v. City of New York, 632
F.2d 185, 191 (2d Cir. 1980) (stating that a claim accrues
under § 1983 “when the plaintiff knows or has reason to
know of the injury which is the basis of his action....”).
“Ordinarily, a claim for abuse of process accrues at such
time as the criminal process is set in motion–typically
at arrest–against the plaintiff.” Duamutef v. Morris, 956
F. Supp. 1112, 1118 (S.D.N.Y. 1997) (Sotomayor, J.);
accord, Anderson, 2016 WL 297737, at *3. Similarly, “[a]
claim for false arrest generally accrues on the date of the
arrest.” Harrison v. New York, 95 F. Supp. 3d 293, 327
(E.D.N.Y. 2015).
*17 In the present case, the Complaint alleges that
Plaintiff was arrested on January 13, 2012. (Dkt. No. 1,
¶ 14 [Pl.'s Compl.].) Plaintiff commenced this action on
August 13, 2015, which is three years and eight months
after his arrest. Accordingly, Plaintiff's § 1983 claims
for false arrest, malicious abuse of power, and abuse
of process are time-barred by the applicable statute of
limitations.
In any event, the Court would dismiss Plaintiff's false
arrest claim because probable cause for his arrest has
already been determined by the N.Y. Court of Claims
as discussed above in Part IV.A. of this Decision and
Order. See McBride v. Bratton, 95-CV-9626, 1996 WL
636075, at *3 (S.D.N.Y. Nov. 4, 1996) (Chin, J.), aff'd,
122 F.3d 1056 (2d Cir. 1997) (dismissing § 1983 false arrest
claim where state court previously determined officers had
probable cause to arrest); accord, Brown v. De Fillipis,
717 F. Supp. 172, 179 (S.D.N.Y. 1989); see also Simpson
v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015)
(stating that “[p]robable cause is a complete defense to
false arrest claims”). With respect to Plaintiff's malicious

abuse of process claim, “[c]ourts in this Circuit appear
to be divided on whether the existence of probable cause
defeats a claim for malicious abuse of process.” Posner v.
City of New York, 11-CV-4859, 2014 WL 185880, at *7
(S.D.N.Y. Jan. 16, 2014); see also Deanda v. Hicks, 137
F. Supp. 3d 543, 576 (S.D.N.Y. 2015) (collecting cases);
cf. Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951, 958
(2d Cir. 2015) (recognizing the confusion surrounding
this issue but declining to resolve it). 7 Nevertheless, the
Court would dismiss Plaintiff's malicious abuse of process
claim for the alternative reason that he has not alleged
facts plausibly suggesting that Defendants employed
regularly issued legal process to compel performance of
some act, with intent to do harm without excuse or
justification, in order to obtain a collateral objective that
is outside the legitimate ends of the process, for the
reasons stated in Defendants' respective memoranda of
law. (Dkt. No. 11, Attach. 5, at 12-14 [Cty. Defs.' Mem.
of Law]; Dkt. No. 14, Attach. 3, at 10-12[Gloversville
Defs.' Mem. of Law]; Dkt. No. 26, Attach. 3, at 12-14
[Def. Ashdown's Mem. of Law]; Dkt. No. 27, Attach.
3, at 14-15 [Def. Bazan's Mem. of Law].) For example,
while the Complaint generally alleges that Defendants
were maliciously motivated to use the “trump” criminal
charge to coerce Plaintiff into discontinuing his civil
lawsuit against Mr. Andrews (Dkt. No. 1, ¶¶ 16-18
[Pl.'s Compl.] ), it does not plausibly suggest a collateral
objective because the allegations plausibly suggest merely
a malicious motive. See Savino v. City of New York, 331
F.3d 63, 77 (2d Cir. 2003) (explaining that a “malicious
motive alone” is not a “collateral objective”); Perry v.
Manocherian, 675 F. Supp. 1417, 1429 (S.D.N.Y. 1987)
(stating that a “malicious motive alone ... does not give
rise to a cause of action for abuse of process” and holding
that issuance of a summons and complaint, even if made
with the intent to coerce settlement, does not constitute
abuse of process).
7

The Court notes that, in Jones v. J.C. Penny's
Dep't Stores Inc., 317 Fed.Appx. 71 (2d Cir. 2009),
the Second Circuit, in a non-precedential summary
order, indicated its support for the interpretation that
probable cause is a complete defense to an abuse of
process claim. Jones, 317 Fed.Appx. at 74 (holding
that “[t]he conclusion that [the plaintiff] could not
prevail on her claims that the officers lacked probable
cause for her arrest ... required dismissal of her ...
claims of abuse of process”). Under Jones, Plaintiff's
malicious abuse of process claim would clearly fail
because, as discussed above in Part IV.A. of this

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2016 WL 4046780
Decision and Order, probable cause for Plaintiff's
arrest has already been established. At the very least,
Defendants would be entitled to qualified immunity
based on this ground.

C. Whether Plaintiff's Conspiracy Claim Under §§ 1983
and 1985 Should Be Dismissed
*18 After carefully considering the matter, the Court
answers this question in the affirmative for the reasons set
forth below

1. Conspiracy Claim Under § 1983
“To establish a § 1983 conspiracy, plaintiff must prove ‘(1)
an agreement between two or more state actors or between
a state actor and a private entity; (2) to act in concert
to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages.’
” Mitchell v. Cty. of Nassau, 786 F. Supp. 2d 545, 564
(E.D.N.Y. 2011) (quoting Pangburn v. Culbertson, 200
F.3d 65, 72 [2d Cir. 1999]). “In addition, complaints
containing only conclusory, vague, or general allegations
that the defendants have engaged in a conspiracy to
deprive the plaintiff of his constitutional rights are
properly dismissed; diffuse and expansive allegations
are insufficient, unless amplified by specific instances of
misconduct.” Ciambriello v. Cty. of Nassau, 292 F.3d
307, 324-25 (2d Cir. 2002) (internal quotations omitted);
accord, Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011).
Finally, “a § 1983 conspiracy fails as a matter of law where
there is no underlying constitutional violation.” Mitchell,
786 F. Supp. 2d at 564; accord, Trombley v. O'Neill, 929 F.
Supp. 2d 81, 97 (N.D.N.Y. 2013) (Suddaby, J.).
Here, Plaintiff's § 1983 conspiracy claim is dismissed
because his underlying constitutional claims for false
arrest, malicious prosecution, abuse of process, and
malicious abuse of power have been dismissed. In any
event, the Court agrees with Defendants that Plaintiff's
allegations, even when read with the utmost of special
liberality, are impermissibly vague and conclusory to
plausibly suggest a conspiracy.

2. Conspiracy Claim Under § 1985

depriving either directly or indirectly, any person or class
of persons of equal protection of the laws, or of equal
privileges and immunities under the laws; (3) an act in
furtherance of the conspiracy; (4) a person is either injured
in his person or property or deprived of any right of a
citizen of the United States; and (5) the conspiracy is
motivated by some racial or perhaps otherwise invidious
discriminatory animus.” K.W. ex rel. Brown v. City of New
York, 275 F.R.D. 393, 399 (E.D.N.Y. 2011).
Because the Court has found that Plaintiff has failed to
allege facts plausibly suggesting a conspiracy and/or an
underlying constitutional violation, Plaintiff's § 1985 claim
is likewise dismissed. See Alston v. Sebelius, 13-CV-4537,
2014 WL 4374644, at *18 (S.D.N.Y. Sept. 2, 2014) (stating
that, “given that plaintiff has failed to allege an underlying
claim for a constitutional violation, his conspiracy claim
under Section 1985 cannot stand.”). In addition, the Court
agrees with Defendants that the Complaint is devoid of
any facts plausibly suggesting that their alleged actions
were motivated by racial or discriminatory animus or that
Plaintiff is a member of a protected class.

D. Whether Plaintiff's Claim for “Refusing or
Neglecting to Prevent” Should Be Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative for the following two
reasons.
*19 First, the Court construes this claim as an attempt
to bring a claim under 42 U.S.C. § 1986. See Bromfield
v. Lend-Mor Mortg. Bankers Corp., 15-CV-1103, 2016
WL 632443, at *6 (D. Conn. Feb. 17, 2016) (reading
pro se plaintiff's claim that defendants “violated [her]
constitutionally protected Rights by refusing or neglecting
to prevent deprivation of [her] rights under Color of Law”
as a claim under § 1986).
Second, because Plaintiff's § 1985 claim is dismissed, his §
1986 claim must also be dismissed. See Gagliardi v. Vill.
of Pawling, 18 F.3d 188, 194 (2d Cir. 1994) (stating that
“[a] claim under Section 1986 ... lies only if there is a
viable conspiracy claim under 1985”); accord, Carris v.
First Student, Inc., 132 F. Supp. 3d 321, 361 (N.D.N.Y.
2015) (Suddaby, J.).

“To avoid dismissal of a § 1985 claim, a plaintiff must
demonstrate: (1) a conspiracy; (2) for the purpose of

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2016 WL 4046780

E. Whether Plaintiff's Monell Claim Against the
Johnstown Police Department and Gloversville Police
Department Should Be Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative for each of the two reasons
set forth below.
First, because the Court has dismissed Plaintiff's
underlying constitutional claims, his Monell claim must
also be dismissed. See Segal v. City of New York, 459
F.3d 207, 219 (2d Cir. 2006) (“Because the district court
properly found no underlying constitutional violation, its
decision not to address the municipal defendants' liability
under Monell was entirely correct”); accord, Grega v.
Pettengill, 123 F. Supp. 3d 517, 556 (D. Vt. 2015).
Second, in any event, police departments are not
municipalities or “persons” within the meaning of § 1983.
See Nicholson v. Lenczewski, 356 F. Supp. 2d 157, 164
(D. Conn. 2005) (holding that, “[b]ecause a municipal
police department is not an independent legal entity, it
is not subject to suit under [§] 1983”) (collecting cases).
Accordingly, Plaintiff's Monell claim is dismissed on this
additional basis.

F. Whether Plaintiff Has Alleged Facts Plausibly
Suggesting a Supervisory Liability Claim Against
Defendants Gifford and VanDeusen
After carefully considering the matter, the Court answers
this question in the negative for the reasons stated in
Defendants' respective memoranda of law. (Dkt. No. 30,
Attach. 3, at 7-8 [Johnstown Defs.' Mem. of Law]; Dkt.
No. 14, Attach. 3, at 19-20 [Gloversville Defs.' Mem. of
Law].). In addition to those reasons, the Court adds the
following two points.
First, this claim is dismissed on the basis that
Plaintiff cannot demonstrate an underlying constitutional
violation because his claims have been dismissed. See
Lacey v. Yates Cty., 30 F. Supp. 3d 213, 227 (W.D.N.Y.
2014) (stating that, “[a]s a threshold matter, where a
plaintiff has not established any underlying constitutional
violation, [he] cannot state a claim for § 1983 supervisory
liability”) (internal quotations omitted); accord, Lawrence
v. Evans, 136 F. Supp. 3d 486, 491 (W.D.N.Y. 2015).

regarding Defendant VanDeusen's personal involvement
in this matter is his failure “to train, supervise and
discipline Captain Sira for his conflicted and malice
acts[,]” (Dkt. No. 1, ¶ 46 [Pl.'s Compl.] ), which
is wholly conclusory and insufficient to plausibly
suggest his personal involvement in a constitutional
violation. See Davis v. Cty of Nassau, 355 F.
Supp. 2d 668, 677 (E.D.N.Y. 2005) (stating that
“[a] complaint that essentially regurgitates the relevant
‘personal involvement’ standard, without offering any
facts indicating that, or how, an individual defendant
in a supervisory role was personally involved in a
constitutional violation, cannot withstand dismissal.”);
Tricoles v. Bumpus, 05-CV-3728, 2006 WL 767897, at
*4 (E.D.N.Y. Mar. 23, 2006) (“Courts have dismissed
§ 1983 ... claims where a complaint merely asserts bare
conclusory statements that a defendant supervisor failed
to supervise or train ....”); Pravda v. City of Albany, 956
F. Supp. 174, 182 (N.D.N.Y. 1997) (Scullin, J.) (granting
defendants' motion for judgment on the pleadings, where
pro se plaintiff's “conclusory allegations” that county
jail superintendent and county sheriff were responsible
for setting county policy and supervising corrections
officers involved in abuse were “insufficient to establish
the personal involvement of these individual Defendants
in Plaintiff's alleged constitutional deprivations”).

G. Whether Plaintiff's State Law Claim for Intentional
Infliction of Emotional Distress Should Be Dismissed
*20 After carefully considering the matter, the Court
answers this question in the affirmative for the reasons
stated in Defendants' respective memoranda of law
regarding Plaintiff's failure to serve Defendants' with a
notice of claim as required by N.Y. Gen. Mun. Law §
50-e. See Rivas v. Suffolk Cty., 326 F. Supp. 2d 355,
360-61 (E.D.N.Y. 2004) (“The defendants contend that
the plaintiff has failed to serve the required notice of claim,
and the plaintiff has not denied such contentions in his
reply papers. In the absence of such a filing, the plaintiff's
tort claim for intentional infliction of emotional distress ...
must be dismissed”). In addition, the Court notes that it
does not have the authority to consider a motion for leave
to file a late notice of claim. Mosdos Chofetz Chaim, Inc. v.
Vill. of Wesley Hills, 815 F. Supp. 2d 679, 710 (S.D.N.Y.
2011) (collecting cases). Therefore, Plaintiff's claim for
intentional infliction of emotional distress is dismissed.

Second, even if the merits of Plaintiff's claim were
considered, the Court notes that the only allegation

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2016 WL 4046780

H. Whether Plaintiff Should Be Afforded Leave to
Amend His Complaint
After carefully considering the matter, the Court answers
this question in negative for the reasons set forth below.
Generally, pro se civil rights litigants, such as Plaintiff, are
to be afforded special solicitude in this Circuit. See, e.g.,
Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (explaining
that the liberal pleading standard set forth in Fed. R. Civ.
P. 12[b][6] “applies with greater force when the complaint
is submitted pro se or the plaintiff alleges civil rights
violations”). As a result, where a pro se complaint fails
to state a cause of action, the court generally “should
not dismiss without granting leave to amend at least
once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal
quotation and citation omitted). However, an opportunity
to amend is not required where “the problem with [the
plaintiff's] causes of action is substantive” such that
“better pleading will not cure it.” Cuoco, 222 F.3d at 112.
Here, the Court finds that the defects with Plaintiff's
claims are substantive, rather than formal, such that any
amendments would be futile. More specifically, the Court
has found that Plaintiff's claims for false arrest, malicious
abuse of power, and malicious abuse of process are timebarred and, therefore, cannot be cured by better pleading.
See Mackensworth v. S.S. Am. Merch., 28 F.3d 246, 251
(2d Cir. 1994) (finding denial of leave to amend complaint
proper on futility grounds because proposed claim would
have been barred by the statute of limitations); Diallo v.
Williams, 04-CV-4556, 2006 WL 156158, at *2 (S.D.N.Y.
Jan. 20, 2006) (denying plaintiff's motion to amend to
include § 1983 claims as futile where the claims would
be barred by the statute of limitations). With respect
to Plaintiff's malicious prosecution claim, the Court has
found that Plaintiff is collaterally estopped from relitigating the issue of probable cause for his arrest and,

therefore, cannot establish the necessary elements for his
claim.
Finally, because Plaintiff cannot establish an underlying
constitutional violation, any amendments to his § 1983
and conspiracy claims would be futile. Similarly, any
amendments to Plaintiff's claim for intentional infliction
of emotional distress would also be futile because he has
failed to serve a notice of claim.
ACCORDINGLY, it is
ORDERED that Defendants Fulton County and Louise
Sira's Motion to Dismiss (Dkt. No. 11) is GRANTED; and
it is further
ORDERED that Defendants' Gloversville Police
Department, John P. Sira, Jr. and Donald Vandeusen's
Motion to Dismiss (Dkt. No. 14) is GRANTED; and it is
further
ORDERED that Defendant Jesse Ashdown's Motion to
Dismiss (Dkt. No. 26) is GRANTED; and it is further
*21 ORDERED that Defendant Darryl Bazan's Motion
to Dismiss (Dkt. No. 27) is GRANTED; and it is further
ORDERED that Defendants Mark Gifford, David Gilbo
and Johnstown Police Department's Motion to Dismiss
(Dkt. No. 30) is GRANTED; and is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED in its entirety with prejudice; and it is further
ORDERED that the Clerk of the Court shall enter
judgment in favor of Defendants and close this case.

All Citations
Slip Copy, 2016 WL 4046780

End of Document

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18

Town of Ramopo, New York v. Town of Clarkstown, Slip Copy (2017)
2017 WL 782500

2017 WL 782500
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
The Town of Ramopo, New York; Ellen
Stack; Sean Stack; Patricia Hendrick;
Dan Daly; and Mendel Taub, Plaintiffs,
v.
The Town of Clarkstown by its Town
Board; and John Does “1-5”, Defendants.
No. 16 Civ. 2004 (NSR)
|
Signed 02/27/2017
Attorneys and Law Firms
Dennis E. A. Lynch, Patrick Andrew Knowles, Feerick
Lynch MacCartney, South Nyack, NY, for Plaintiffs.
Harold Y. MacCartney, Jr., Law Offices of Harold Y.
MacCartney, Jr., Upper Nyack, NY, for Defendants.

OPINION & ORDER
NELSON S. ROMÁN, United States District Judge
*1 Plaintiffs the Town of Ramopo, New York
(“Ramopo”), Ellen Stack, Sean Stack, Patricia Hendrick,
Dan Daly, and Mendel Taub (collectively “Plaintiffs”)
initiate this action pursuant to 42 U.S.C. §§ 1981,
1982, 1983, and 1985(3), the Fair Housing Act, 42
U.S.C. § 3604(a) and § 3617 (“FHA”), the First
and Fourteenth Amendments to the United States
Constitution, New York Civil Rights Law § 40-c
(“NYCRL”), Section 291 of the New York State Human
Rights Law, N.Y. Exec. Law § 291(2) (“NYSHRL”),
and the New York State Constitution, against the
Town of Clarkstown (“Clarkstown”) and John Does 1-5
(collectively “Defendants”), alleging claims of interference
with Plaintiff's federal right to interstate and intrastate
travel, right to association, right to equal protection
of the laws, right to assemble, and claims of religious
discrimination and retaliation against Plaintiffs in the
housing context. Defendants have moved to dismiss
the complaint pursuant to either Federal Rule of Civil
Procedure 12(b)(1) or 12(b)(6) on various grounds,

including that the action is procedurally barred by res
judicata or that the causes of action alleged in the
complaint are time-barred by the applicable statutes
of limitations. For the following reasons, Defendants'
motion is GRANTED in part and DENIED in part.

FACTUAL BACKGROUND
The following facts are derived from the Amended
Complaint unless otherwise noted, and are accepted as
true for purposes of this motion.
Since 1940, Ramopo has experienced greater population
growth than Clarkstown. (Id. ¶¶ 34-40.) Within Ramopo,
there is also a growing population of individuals
practicing the Jewish faith, and a substantial increase
in the population of Orthodox and Hasidic Jewish
individuals, as compared with a relatively smaller growth
of this subpopulation within Clarkstown. (Id. ¶ 41, 42.)
In addition to a substantially more religiously diverse
population, a larger population of more economically
disadvantaged individuals also reside in Ramopo as
compared to Clarkstown. (Id. ¶ 44.) Ramopo also differs
from Clarkstown in that it has a larger number of areas
where low income residents reside, and villages consisting
almost entirely of Hasidic families. (Id. ¶ 46.)
Defendants have undertaken numerous activities to
prevent Orthodox and Hasidic Jewish individuals from
moving from Ramopo to Clarkstown. (Id. ¶ 47.) Plaintiff
alleges that these measures include the closing of Samuel
Road, which connects Ramopo and Clarkstown. (Id. ¶
49.) Plaintiff contends that a physical barricade was placed
along the area where Samuel Road intersects Ramopo
and Clarkstown, under the pretext that the closure was
meant to address a concern that cars were exceeding
the speeding limit. (Id. ¶ 50.) Clarkstown and other
Defendants did not undertake road safety practices or
provide for traffic enforcement activities before placing
the barrier on Samuel Road. (Id. ¶ 51, 52.) The initial
barrier was primarily composed of “plastic with a breakaway chain locking device” which allowed for the passage
of emergency vehicles. (Id. ¶ 55.) Later, the plastic
barricades were replaced with cement “jersey barrier”
barricades, which allowed for the passage of emergency
vehicles from Clarkstown to Ramopo with delay caused
by the need to remove the barrier. (Id. ¶ 56.)

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Town of Ramopo, New York v. Town of Clarkstown, Slip Copy (2017)
2017 WL 782500

*2 Defendants have also taken other measures to
prevent Jewish individuals from traveling to or residing
in Clarkstown, including by appearing at town meetings
held in Ramopo, and objecting to the development
of a multi-family residential facility on the border of
Clarkstown, which would provide “affordable and less
affluent housing that would attract Orthodox and Hasidic
residents.” (Id. ¶¶ 73, 74.) Clarkstown also passed a
moratorium on new construction after the closure of
Samuel Road. (Id. ¶ 75.) In his November 2015 campaign
for re-election as Town of Clarkstown Supervisor, the
former Clarkstown Supervisor also emphasized that
he was “keeping Clarkstown from Becoming Another
Ramopo.” (Id. ¶ 78.) This slogan was placed in a
brochure that publicized that Clarkstown had updated the
Town Code and placed a moratorium on new residential
construction. (Id. ¶ 79.) This literature also depicted a
“multi-family housing unit with many children's toys and
playground devices ... intended to show areas typically
found within ... Ramopo where Hasidic families....
[live].” (Id. ¶ 80.)
All of these efforts were part of a discriminatory purpose
confirmed by the installation of the “permanent” barrier
in 2016. (Id. ¶ 81.)
Plaintiffs Ellen Stack, Sean Stack, Patrick Hendrick, and
Dan Daly live on Samuel Road, which is located within
Ramopo. (Compl. ¶ 25.) Samuel Road traverses both
Ramopo and Clarkstown, and previously provided for
public travel. (Id. ¶¶ 26, 27.) Ramopo borders the state
of New Jersey, and Samuel Road previously served as a
means for individual Plaintiffs to travel both intra-New
York State within the Towns of Ramopo and Clarkstown,
and interstate between New York and New Jersey. (Id.
¶¶ 28, 29.) Public access to Samuel Road also allowed for
more expeditious access for emergency and other vehicles.
(See id. ¶ 32.)
The County of Rockland and the Village of Chestnut
Ridge previously brought litigation to remove the barrier.
(Id. ¶ 57.) Throughout that litigation, Clarkstown and
other Defendants asserted that the barrier provided for
access by emergency vehicles that could enter Ramopo
through Samuel Road by using a key to open a lock
that kept the barrier closed. (Id. ¶¶ 58, 59.) After all
New York State Court remedies were exhausted “for
those wishing to remove the Barrier on Samuel Road,”
on March 11, 2016, Defendants placed permanent, new

concrete barriers across Samuel Road, affixed to the road
with metal stakes so that no emergency vehicles could
traverse that portion of the road. (Id. ¶ 61.) At that
time, a representative of the Defendants told Plaintiff
Stack that they were making the closure of Samuel Road
“permanent” because no more judicial remedies existed
for those who oppose the barrier. (Id. ¶ 62.)
The closure of Samuel Road has also had a direct impact
upon the general health, safety, and welfare of Ramopo
residents on and about Samuel Road; on one occasion, in
2013, an ambulance was unable to pass through Samuel
Road to Ramopo due to the barrier and had to reroute,
causing a delay in medical assistance to a Ramopo resident
who had suffered a stroke. (Id. ¶¶ 64, 65.) Prior to the
installation of the cement barriers, during the winter
months a “pile up” of snow and ice prevented emergency
vehicles from passing through the barrier, even if it were
open. (Id. ¶ 66.) The barrier has also created a virtual
dead end on Samuel Road, and has become a location
where drugs can be used and sold, “since it is difficult
for law enforcement to view such conduct.” (Id. ¶ 68.)
With the closing of Samuel Road, Ramopo residents must
also use an alternate route to enter a specific Clarkstown
road called Newport Drive; the alternate route has a
steep incline that is difficult to drive on during inclement
weather. (Id. ¶¶ 69, 70.)
Ambulance access to Ramopo through Samuel Road
provides for the quickest response time. (Id. ¶ 71.) Due
to the barrier, an ambulance that intends to traverse
Samuel Road must reroute and take a longer route, which
increases response time to Ramopo residents. (Id. ¶ 72.)

STANDARD ON A MOTION TO DISMISS
*3 Under Rule 12(b)(6), the inquiry is whether the
complaint “contain[s] 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)); accord Hayden v. Paterson, 594 F.3d 150, 160
(2d Cir. 2010). “While legal conclusions can provide the
framework of a complaint, they must be supported by
factual allegations.” Id. at 679. To survive a motion to
dismiss, a complaint must supply “factual allegations
sufficient ‘to raise a right to relief above the speculative
level.’ ” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d

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2

Town of Ramopo, New York v. Town of Clarkstown, Slip Copy (2017)
2017 WL 782500

87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555).
The Court must take all material factual allegations as true
and draw reasonable inferences in the non-moving party's
favor, but the Court is “ ‘not bound to accept as true a legal
conclusion couched as a factual allegation,’ ” or to credit
“mere conclusory statements” or “[t]hreadbare recitals of
the elements of a cause of action.” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555). In determining
whether a complaint states a plausible claim for relief,
a district court must consider the context and “draw on
its judicial experience and common sense.” Id. at 662. A
claim is facially plausible when the factual content pleaded
allows a court “to draw a reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678.

LLC, 914 F. Supp. 2d 362, 370 (E.D.N.Y. 2012) (citing
42 U.S.C. § 3613(a)(1)(A); Adams v. Han, 478 Fed. Appx.
686, 687–88 (2d Cir. 2012)) (“to bring claims under ... the
Fair Housing Act ‘[a]n aggrieved person may commence a
civil action in an appropriate United States district court
or State court not later than 2 years after the occurrence
or the termination of an alleged discriminatory housing
practice.’ ”). Since Plaintiffs commenced this action on
March 17, 2016, their federal claims are time barred
unless: (1) their claims under §§ 1981, 1982, 1983 and
1985(3) accrued after March 16, 2013, and their FHA
claims accrued after March 16, 2014 or (2) the statute of
limitations was tolled.
1

DISCUSSION
I. Timeliness of Plaintiffs' Federal Claims
“ ‘While a statute-of-limitations defense may be raised in
a motion to dismiss under [Rule] 12(b)(6), such a motion
should not be granted unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his
claim that would entitle him to relief.’ ” Ortiz v. Cornetta,
867 F.2d 146, 148 (2d Cir. 1989) (citation omitted). A
defendant may raise a pre-answer statute of limitations
defense, for example, “[w]here the dates in a complaint
show that an action is barred by a statute of limitations.”
Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d
Cir. 1989). Thus, for a Court to grant a motion to dismiss
on the basis that the asserted claims are time-barred, there
must be no factual question as to whether the alleged
violations occurred within the statutory period. See Old
Republic Ins. Co. v. Hansa World Cargo Serv., Inc., 51 F.
Supp. 2d 457, 468 (S.D.N.Y. 1999).

a. Applicable Statutes of Limitations
Plaintiffs bring federal constitutional claims pursuant
to §§ 1981, 1982, 1983 and 1985(3), and the FHA.
Plaintiff's claims brought pursuant to §§ 1981, 1 1982,
1983 and 1985(3) are governed by a three-year statute
of limitations, and their FHA claims are governed by a
two-year limitations period. See Carvel v. Franchise Stores
Realty Corp., 08-CV-8938 (JGK), 2009 WL 4333652, at *8
(S.D.N.Y. Dec. 1, 2009) (“the statute of limitations in New
York for claims pursuant to 42 U.S.C. §§ 1981–83 & 1985
is three years”); see also See Clement v. United Homes,

The applicable statute of limitations for § 1981
claims is dependent upon whether Plaintiff states a
claim under the statute as it was originally passed,
or under its 1991 Amendments. Wright v. City of
Ithaca, 633 Fed.Appx. 63, 64 (2d Cir. 2016) (summary
order). Although not clear from the Complaint,
because Plaintiffs' § 1981 claim appears to fall within
the original language of the statute, a three-year
limitations period applies. Id.

b. Application of Statutes of
Limitations to Plaintiffs' Claims
*4 Defendants argue that a traffic barrier preventing the
unimpeded movement of traffic has been in place since late
2012, that all of Plaintiffs' federal claims are predicated
upon this fact, and that they are thus time barred. (See
Defs.' Mem. of Law In Support of Mot. to Dismiss, at
8-9, [hereinafter “Defs.' Mem.”], ECF No. 18.) Plaintiffs
contend that the harms alleged in the Complaint arise
from the “permanent” closure of Samuel Road which
occurred in March 2016. (See Pls.' Mem. in Opp. to Defs.'
Mot. to Dismiss, at 15-17, [hereinafter “Pls.' Opp.”], ECF
No. 20.)
Although the parties dispute the meaning of a
“permanent” closure as compared to a “temporary” one,
Plaintiffs concede that Samuel Road has been blocked by
some form of barrier that has, at the very least, prevented
the passage of public vehicular traffic since 2012, though
emergency vehicles were permitted to pass. (See Pls.' Opp.,
at 2) (“Defendants' own Motion documents confirm that
in 2012 only a ‘breakaway barrier’ was put across Samuel
Road.... That ‘breakaway barrier’ allowed emergency
vehicles to enter and exit Samuel Road by using a ‘key’ to

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3

Town of Ramopo, New York v. Town of Clarkstown, Slip Copy (2017)
2017 WL 782500

open the ‘gate’ across Samuel Road.”) (emphasis added);
(id.) (citing George Hoehmann Declaration In Support
of Defs.' Mot. to Dismiss, Ex. B, ¶ 27) (indicating in
August 2012, a temporary barrier was replaced with a
double-gate with chain and padlock for key distribution
to emergency services, but “nevertheless” residents and
general public were prohibited from traveling along Samuel
Road) (emphasis added); (id.) (“[P]revious litigation did
not concern the fact of a ‘permanent barrier’ blocking
Samuel Road preventing the passage of emergency vehicles
and pedestrians, as is set forth in this Federal Court
Litigation”) (emphasis added); (id., at 5) (noting prior
litigation involved action taken by Defendant Clarkstown
in late 2012 pertaining to the replacement of a temporary
barrier with a breakaway barrier that could be opened with
keys by emergency service providers) (emphasis added);
(see also id.) (“It is the current inability of emergency
vehicles to cross Samuel Road to and from Ramopo to
Clarkstown (and vice versa) that is an essential part of
Plaintiffs' Complaint.”) (emphasis added). Thus, based
upon Plaintiffs' own Memorandum, and the way in which
it illuminates the factual allegations alleged in Plaintiffs'
Complaint, any injuries arising out of the existence of a
barrier across Samuel Road impeding public traffic began
to accrue in 2012.

i. Accrual
Generally, a cause of action for a discrimination claim
accrues “ ‘when the plaintiff knows or has reason to know
of the injury which is the basis of his action.’ ” Lynch v.
Suffolk Cty. Police Dep't, Inc., 348 Fed.Appx. 672, 674 (2d
Cir. 2009) (citing Pearl v. City of Long Beach, 296 F.3d 76,
80 (2d Cir. 2002)); see Washington v. Cty. of Rockland, 373
F.3d 310, 319 (2d Cir. 2004) (Sotomayor, J.) (noting, in
considering claims under § 1981 and § 1983, that “[a]s with
all discrimination claims, plaintiffs' claims accrued when
they knew or should have known of the discriminatory
action”); Clement v. United Homes, LLC, 914 F. Supp. 2d
362, 371–72 (E.D.N.Y. 2012) (quoting Dombrowski v. City
of New York, 116 F.3d 465, at *1 (2d Cir. 1997)) (“Claims
under the FHA, as well as under §§ 1981, 1982 and 1985,
are subject to the discovery rule and thus accrue when a
‘plaintiff knows or has reason to know of the injury that
serves as the basis for the action.’ ”). Discovery of the
injury and its cause “ ‘require[ ] only knowledge of, or
knowledge that could lead to, the basic facts of the injury,
i.e., knowledge of the injury's existence and knowledge of

its cause or of the person or entity that inflicted it.... [A]
plaintiff need not know each and every relevant fact of
his injury or even that the injury implicates a cognizable
legal claim. Rather, a claim will accrue when the plaintiff
knows, or should know, enough of the critical facts of
injury and causation to protect himself by seeking legal
advice.’ ” Id. (citing Corcoran v. N.Y. Power Auth., 202
F.3d 530, 533 (2d Cir. 1999)).
*5 As Defendants correctly point out, though Plaintiffs
argue that their claims arise out of alterations made in
2016, preventing the passage of emergency vehicles, many
of the factual allegations they allege in support of their
claims do appear to pertain solely and specifically to the
installation of the initial barrier impeding public traffic,
which occurred in 2012. (See, e.g., Compl. ¶¶ 33, 48-49,
68, 69.) In response, Plaintiffs argue in a footnote that
the continuing violation doctrine and equitable tolling
should apply to toll the limitations periods for those claims
relating to the initial installation of the barrier on Samuel
Road. (See Pl's. Opp., at 17 n.9.)
To the extent that Plaintiffs' claims are based not just on
an isolated event, but on an alleged ongoing policy of
discrimination, the statute of limitations can be extended
under the “continuing violation” theory which “allows a
plaintiff in certain circumstances to recover on the basis
of an ongoing policy or practice of illegal activity initiated
prior to the limitations period.” Pollis v. New Sch. for Soc.
Research, 132 F.3d 115, 118 (2d Cir. 1997). Where Plaintiff
alleges a continuing violation that gives rise to a claim of
a discriminatory policy, the statute of limitations period
begins to run at the end of the “last asserted occurrence.”
Clement, 914 F. Supp. 2d. at 373 (citing Havens Realty
Corp v. Coleman., 455 U.S. 363, 363 (1982)).
However, the continuing-violation doctrine is generally
disfavored in this Circuit. In re Johnson, No. 09-49420,
2014 WL 4197001, at *13 (Bankr. E.D.N.Y. Aug. 22,
2014) (citing Grimes v. Fremont Gen. Corp., 785 F.
Supp. 2d 269, 292 (S.D.N.Y. 2011)) (“Courts in the
Second Circuit and elsewhere ‘have been loath to apply
the continuing violation doctrine absent a showing
of compelling circumstances' ”) (internal citations and
quotation marks omitted). Furthermore, “[c]haracterizing
defendants' separate wrongful acts as having been
committed in furtherance of a conspiracy or as a ‘series of
interlocking events' does not postpone accrual of claims
based on individual wrongful acts.” Singleton v. City of

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Town of Ramopo, New York v. Town of Clarkstown, Slip Copy (2017)
2017 WL 782500

New York, 632 F.2d 185, 192 (2d Cir. 1980) overruled on
other grounds by Roesch v. Otarola, 980 F.2d 850, 853–
54 (2d Cir. 1992), as recognized in Beberaggi v. N.Y.C.
Transit Auth., No. 93–CV–1737, 1994 WL 75144, at *5
(S.D.N.Y. Mar. 9, 1994); see Pinaud v. Cnty. of Suffolk,
52 F.3d 1139, 1157 (2d Cir. 1995) (noting that “when a
plaintiff knows or ought to know of a wrong, the statute
of limitations on that claim starts to run, and the later
awareness that the actionable wrong was also part of a
conspiracy does not expand the statutory time limit”).
Nor can a “continuing violation ... be established merely
because the claimant continues to feel the effects of a timebarred discriminatory act.” Harris v. City of New York,
186 F.3d 243, 250 (2d Cir. 1999).
As they pertain to the general public, this Court finds
that Plaintiffs' first, second, and fourth claims for relief
alleging that Defendants interfered with Plaintiffs' federal
right to interstate travel, right to intrastate travel, and

be to enable him to defeat the purpose of the time-bar,
which is to preclude the resuscitation of stale claims ... The
existence of a conspiracy does not postpone the accrual of
causes of action arising out of the conspirators' separate
wrongs. It is the wrongful act, not the conspiracy, which
is actionable”).
2

3

2

right to freedom of association, respectively, are all
effects of the initial installation of a barrier on Samuel
Road, a separate and discrete act that prevented one
form of public access to Clarkstown. Because Plaintiff
became aware of the injury underlying these claims when
the initial barrier blocking the passage of public traffic

4

was installed, 3 these claims began to accrue at that
time and are therefore barred by the aforementioned
statute of limitations, and dismissed with prejudice. 4
To the extent that Plaintiffs' sixth claim, alleging that
Defendants violated Plaintiffs' rights under the FHA
by making housing “otherwise unavailable because of
religion,” is based upon the existence of the barrier to
public vehicular traffic on Samuel Road, this claim is
also dismissed as time-barred for the aforementioned
reason, 5 and Plaintiffs' seventh claim, a related FHA
claim, is dismissed on the same grounds. To the extent that
these FHA claims arise out of timely factual allegations
asserted within the Complaint (see, e.g., ¶¶ 78-81) (citing
discriminatory acts against individuals of Jewish faith),
these claims may remain. Finally, as to Plaintiffs' third
claim for relief, which merely asserts that Defendants
have violated a variety of Plaintiffs' federal rights, to the
extent it is premised upon the existence of a barrier to
the motoring public across Samuel Road, these claims are
also dismissed as time-barred. See Singleton, 632 F.2d at
192-93 (“To permit [plaintiffs] to wait and toll the running
of the statute simply by asserting that a series of separate
wrongs were committed pursuant to a conspiracy would

5

This claim is dismissed as time-barred to the extent
it is premised upon the installation of a barrier
blocking public vehicular traffic across Samuel Road.
The Court notes that Plaintiffs allege Defendants
intruded upon Plaintiffs' “right to associate with
others for purposes of protected activity” without
alleging factual content to this effect. (See Compl.
¶ 98.) This bare, conclusory assertion of a violation
is insufficient in any event and must therefore be
dismissed, without prejudice, to the extent it relates to
other allegations in the Complaint.
Plaintiff does not allege that Samuel Road is the only
form of access to the Town of Clarkstown from the
Town of Ramopo. Even if that were the case, the
impediment began in 2012.
Nor does equitable tolling apply, given Defendants'
conduct did not conceal Plaintiffs' causes of action
with regard to these injuries. See, e.g., Pinaud v. Cty.
of Suffolk, 52 F.3d 1139, 1158 (2d Cir. 1995) (denying
equitable tolling on the basis plaintiff submitted
evidence of conspiracy, but not of defendants tangible
steps to conceal the nature of activities); Pietri v.
N.Y.S. Office of Court Admin., 936 F. Supp. 2d
120, 138 (E.D.N.Y. 2013) (“To avoid dismissal on
the grounds of equitable tolling due to Defendants'
misconduct, Plaintiff must set forth in his Amended
Complaint facts from which the Court could conclude
that he was unaware of his cause of action because
of Defendants misleading conduct.”) Indeed, Plaintiff
has been aware of the blockage since 2012.
In support of their sixth claim for relief Plaintiffs
state “Defendants installation of a Traffic Barrier
and other actions complained of herein have had the
effect ... of excluding said Plaintiffs from public roads
and other areas within the Town of Clarkstown by
discriminating against the said Plaintiffs based on
religion.” (Compl. ¶ 107.)

*6 In contrast, claims such as those premised upon the
delay in emergency response for Plaintiffs on the Ramopo
side of the barrier on Samuel Road may remain.

II. Res Judicata and Collateral Estoppel

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2017 WL 782500

Defendants argue that Plaintiffs' claims are also barred
by the doctrines of collateral estoppel and res judicata
because they are based on the original installation of a
traffic barrier across Samuel Road, which was previously
fully litigated and adjudicated on the merits. (See Defs.'
Mem., at 11.) Specifically, Defendants argue that the issue
concerning Clarkstown's right to install and maintain
the barrier was litigated by the County and Village of
Chestnut Ridge, parties in privity with Plaintiffs, that
both the New York State Supreme Court and Appellate
Division ruled in Clarkstown's favor, and that Plaintiffs'
claims arise out of the same set of facts as those in the
previous litigation. (See Defs.' Mem. at 11, 15.)
In accordance with the doctrine of res judicata, and
pursuant to the Constitution's Full Faith and Credit
Clause, “federal courts must accord state court judgments
the same preclusive effect as other courts within that
state.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994). Because the prior judgments in question here were
issued by New York State Courts, the Court's analysis is
governed by New York State law, “which has adopted
a transactional approach to res judicata, barring a later
claim arising out of the same factual grouping as an earlier
litigated claim even if the later claim is based on different
legal theories or seeks dissimilar or additional relief.” Id.
However, new claims arising subsequent to a prior action
are not barred by res judicata, whether or not they are
premised upon facts stemming from the same “course of
conduct.” Storey v. Cello Holdings, L.L.C., 347 F.3d 370,
383 (2d Cir. 2003).
Given Plaintiffs' remaining claims stem from a different
“transaction,” namely the alteration to the barrier
preventing the passage of emergency vehicles, a change
that occurred years after the initial installation of the
barrier and subsequent to the initiation of prior litigation,
these claims could not have been raised in the prior action
and are not barred by the doctrine of res judicata. See
Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir.
1997) (“as a matter of logic, when the second action
concerns a transaction occurring after the commencement
of the prior litigation, claim preclusion generally does not
come into play”). The Court does not consider the res
judicata effect on time-barred claims discussed above.
Under the doctrine of collateral estoppel, a party may
not relitigate an issue that was “clearly raised in a prior
action or proceeding and decided against that party ...,

whether or not the tribunals or causes of action are the
same.” Leather v. Eyck, 180 F.3d 420, 425 (2d Cir. 1999)
(internal quotation marks and citations ommitted). For
the doctrine to apply, the issues raised in the second action
must be identical, or substantially similar. Zherka v. City
of N.Y., 459 Fed.Appx. 10, 13 (2d Cir. 2012). As to claims
not dismissed pursuant to this Order, the Court finds the
issues raised, which pertain to the installation of the new
barrier in 2016 and discriminatory acts by Defendants, are
distinct from those raised in the state court actions.
*7 On this basis, Plaintiffs remaining claims are not
barred by the doctrines of res judicata or collateral
estoppel.

CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss
is GRANTED in part and DENIED in part. Plaintiff's
claims are resolved as follows.
The following claims are DISMISSED with prejudice
to the extent they are premised upon the imposition of
a barrier blocking the passage of public traffic across
Samuel Road:
● Claim for interference with federal right to intrastate
travel and interstate travel;
● Claims arising under 42 U.S.C. §§ 1981, 1982, 1983
and 1985(3) 6 ;
● Fair Housing Act Claims;
● Claim based on First Amendment right to freedom
of association.
Additionally, First Amendment freedom of association
claims based on alternate theories are dismissed without
prejudice.
6

As Defendants argument regarding the sufficiency
of Plaintiffs' §§ 1983, 1985 and other claims are all
premised upon the erection of the initial barrier in
2012, and claims premised upon the initial installation
of the barrier have been dismissed as time-barred,
these arguments are deemed moot. (See, e.g., Defs.'
Mem., at 17-20.) Defendants do not address Plaintiffs'
state law claims.

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2017 WL 782500

Plaintiff shall have until March 28, 2017 to amend the
Complaint as to those claims that are dismissed without
prejudice. Plaintiffs shall ensure that they allege sufficient
factual content to support their remaining claims, and
conform with this Opinion for clarity. If Plaintiff elects
to file an amended complaint, Defendants shall have until
April 28, 2017 to move or file responsive pleadings. If
Plaintiff does not file an amended complaint, Defendants
shall have until sixty days from the date of this Order
to file responsive pleadings, An initial case management
and scheduling conference pursuant to Fed.R.Civ.P. 16 is
scheduled for April 27, 2017 at 10:30 a.m., at the United
States Courthouse, 300 Quarropas Street, Courtroom 218,
White Plains, New York 10601. The parties shall confer
End of Document

in accordance with Fed.R.Civ.P. 26(f) at least 21 days
prior to the conference and attempt in good faith to
agree upon a proposed discovery plan that will ensure
trial readiness within six months of the conference date.
The parties shall also complete a Civil Case Discovery
Plan and Scheduling Order and bring it to the conference.
The Court respectfully directs the Clerk to terminate the
motion at ECF No. 16.
SO ORDERED.

All Citations
Slip Copy, 2017 WL 782500
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7

Lopez v. City of New York, Slip Copy (2017)
2017 WL 213243

1
2017 WL 213243
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Adam Lopez, Plaintiff,
v.
City of New York, New York City Police
Department, Unnamed Nypd Officers, Defendants.
15 Civ. 1650 (NRB)
|
Signed January 10, 2017
Attorneys and Law Firms
Carlos Gonzalez, Gonzalez Law Associates, New York,
NY, for Plaintiff.
Peter John Fogarty, New York City Law DepartmentSpecial Federal Litigation Div, New York, NY, for
Defendants.

MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, UNITED STATES
DISTRICT JUDGE
*1 Plaintiff Adam Lopez (“Lopez”) filed this action
against defendants the City of New York (the “City”),
the New York City Police Department (“NYPD”), 1
and unnamed NYPD officers (the “Unnamed Officers”),
alleging false arrest, malicious prosecution, excessive
force, and Monell liability under 42 U.S.C. § 1983. The
City moves for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c) on the grounds that
(1) the false arrest and excessive force claims are timebarred against any purported individual defendants; (2)
the malicious prosecution claim fails because Lopez did
not receive a favorable termination, has not alleged that
defendants initiated the prosecution or otherwise played
an active role in it, and has not alleged that the prosecution
was malicious; and (3) the Monell claims fail because
Lopez does not sufficiently allege a custom or policy
resulting in the purported constitutional violations. For
the following reasons, the motion is granted.

Chapter 17, Section 396 of the New York City
Charter provides, “All actions and proceedings for
the recovery of penalties for the violation of any law
shall be brought in the name of the city of New York
and not in that of any agency, except where otherwise
provided by law.” The NYPD is accordingly a nonsuable entity, and the claims against it are dismissed.
See, e.g., 5 Borough Pawn, LLC v. City of New York,
640 F. Supp. 2d 268, 284 (S.D.N.Y. 2009).

I. Background
The complaint, filed on March 3, 2015, alleges that “[o]n
or about March 14, 2012, Plaintiff was arrested without
cause for Criminal Sale of a Controlled Substance, and
was subsequently incarcerated for 2 days.” Compl. ¶ 6.
It further alleges, “The matter was eventually dismissed.
On the date of the incident there was a separately arrested
possessor of the controlled substance who repeatedly
indicated that she had not purchased the substance from
Plaintiff Lopez.” Id. ¶ 7. Lopez alleges that probable cause
was lacking for his arrest, incarceration, and prosecution.
Id. ¶¶ 14, 20. He further alleges “that Officers [sic]
excessive force against Plaintiff In [sic] that he was cuffed
very tightly, over Planitffs [sic] complaints, and was
caused physical harm due to the Plaintiff [sic].” Id. ¶ 23.
The complaint also contains fairly generic Monell
allegations such as the following:
● “Defendant City of New York (“City”) failed to
properly train their police department employees
on the proper procedures for conducting an
investigation and arrest. Furthermore, we allege
that it is Department policy to make arrests where
allegations of criminality take place, as such all
members employed by said department in a position/
capacity to arrest any other individual would/should
properly be trained by the department to perform
said duty in a just and proper manner. We also allege
that it is the general practice of the Department to
fully investigate any and all matters before them, and
do so in a proper and judicious manner, the failure
to have done so in this matter is a breach of the
aforementioned implied, and direct, policy of this
department.” Id. ¶ 10.
*2 ● “Defendant City also allowed a policy or custom
to be implemented and carried out, or practiced
within its police department, to wit, using whatever
means possible to arrest and prosecute individuals for

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Lopez v. City of New York, Slip Copy (2017)
2017 WL 213243

various offenses, while being indifferent to whether or
not there was probable cause or a factual basis for the
belief that the person committed the crime.” Id. ¶ 11.

Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F. 3d
66, 70 (2d Cir. 1998) (internal quotation marks omitted).

● “Defendant City knew or should have known that
this type of conduct, custom, unwritten policy, or
practice was taking place in their police department.
This practice directly led to the false arrest and false
imprisonment, of Mr. Lopez for an offense that he
did not commit.” Id. ¶ 12.

III. Discussion
The City argues that (1) the false arrest and excessive force
claims are time-barred against any purported individual
defendants; (2) the malicious prosecution claim fails
because Lopez did not receive a favorable termination, has
not alleged that defendants initiated the prosecution or
otherwise played an active role in it, and has not alleged
that the prosecution was malicious; and (3) the Monell
claims fail because Lopez does not sufficiently allege a
custom or policy resulting in the purported constitutional
violations.

The City filed an answer on September 28, 2015. After
a mediation session under Local Rule 83.10 that did not
result in settlement, the City made the instant motion.
Lopez, through his attorney, filed a half-page, not entirely
responsive brief in opposition. At no point, even in
opposition to this motion, has Lopez sought to amend his
complaint to name the Unnamed Officers.

II. Legal Standard
“The standard for addressing a Rule 12(c) motion for
judgment on the pleadings is the same as that for a
Rule 12(b)(6) motion to dismiss for failure to state
a claim.” Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006). We thus construe the complaint
liberally, accept its factual allegations as true, and draw
all reasonable inferences in plaintiff's favor. Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
To survive a motion to dismiss, the 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), and “allow[ ] the court to draw the
reasonable inference that the defendant[s are] liable for the
misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The assumption that allegations contained in the
complaint are true is “inapplicable to legal conclusions.”
Id.
In evaluating the sufficiency of a complaint, a “court may
consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents
incorporated by reference in the complaint,” DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010),
as well as “matters of which judicial notice may be taken,”
Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.
1991). We may take judicial notice of a “document filed
in another court not for the truth of the matters asserted
in the other litigation, but rather to establish the fact of
such litigation and related filings.” Int'l Star Class Yacht

A. Unnamed Officers
More than a year after filing this lawsuit, and even though
the City disclosed the name of the arresting officer in its
initial disclosures, served on October 20, 2015, Lopez has
failed to amend or even seek leave to amend his complaint
to name any of the Unnamed Officers. It is undisputed
that more than three years have passed since Lopez's false
arrest and excessive force claims accrued, on March 14,
2012 and March 15, 2012, respectively. See, e.g., Perez
v. Johnson, No. 07 Civ. 3761 (NRB), 2008 U.S. Dist.
LEXIS 56278, at *5, 2008 WL 2876546 (S.D.N.Y. July
22, 2008) (excessive force claim accrues when the force
is used); Wallace v. Kato, 549 U.S. 384, 389-90 (2007)
(limitations period on false arrest claim begins to run
upon arraignment). The three-year statute of limitations
on both causes of action has therefore run. See N.Y.
C.P.L.R. § 214(5); Owens v. Okure, 488 U.S. 235, 249-51
(1989); Patterson v. Cnty. of Oneida, 375 F.3d 206, 225
(2d Cir. 2004).
*3 Even if plaintiff were to seek leave to amend to
name the Unnamed Officers, the attempt would be futile,
because the claims would not relate back to the filing of
the complaint, and would therefore be untimely. “[I]t is
familiar law that ‘John Doe’ pleadings cannot be used
to circumvent statutes of limitations because replacing a
‘John Doe’ with a named party in effect constitutes a
change in the party sued. Thus, such an amendment may
only be accomplished when all of the specifications of Fed.
R. Civ. P. 15(c) are met.” Barrow v. Wethersfield Police
Dep't, 66 F.3d 466, 468 (2d Cir. 1995) (citations, internal
quotation marks, and alterations omitted), modified, 74
F.3d 1366 (2d Cir. 1996).

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Lopez v. City of New York, Slip Copy (2017)
2017 WL 213243

We now turn to a discussion of whether the specifications
of Rule 15(c) have been met.
First, relation back is unavailable here under Rule 15(c)
(1)(C). See Sewell v. Bernardin, 795 F.3d 337, 342 (2d
Cir. 2015); Hogan v. Fischer, 738 F.3d 509, 517-18 (2d
Cir. 2013) (“This Court's interpretation of Rule 15(c)(1)
(C) makes clear that the lack of knowledge of a John
Doe defendant's name does not constitute a ‘mistake of
identity’ [within the meaning of the rule].”).
Moreover, relation back is also not possible under
Rule 15(c)(1)(A). 2 Rule 15(c)(1)(A) permits an amended
pleading to relate back when “the law that provides the
applicable statute of limitations allows relation back.”
Fed. R. Civ. P. 15(c)(1)(A). As indicated above, New
York law provides the applicable statutes of limitations
for an action under Section 1983. Owens, 488 U.S. at
249-51; Patterson, 375 F.3d at 225; see also N.Y. C.P.L.R.
§ 214(5). Section 1024 of the New York CPLR provides:
A party who is ignorant, in whole
or in part, of the name or identity
of a person who may properly be
made a party, may proceed against
such person as an unknown party
by designating so much of his name
and identity as is known. If the name
or remainder of the name becomes
known all subsequent proceedings
shall be taken under the true name
and all prior proceedings shall be
deemed amended accordingly.
N.Y. C.P.L.R. 1024. When seeking to use CPLR 1024
and amend its complaint to relate claims against a
previously unknown party back to the complaint's filing
for statute of limitations purposes, “a party must meet
two requirements,” including, in relevant part, “the party
must ‘exercise due diligence, prior to the running of the
statute of limitations, to identify the defendant by name.’
” Hogan, 738 F.3d at 519 (quoting Bumpus v. N.Y. City
Transit Auth., 66 A.D.3d 26, 30, 883 N.Y.S.2d 99, 104
(2d Dep't 2009)). Here, as explained above, the relevant
statutes of limitations ran on March 14, 2015 and March
15, 2015. Lopez did not file this lawsuit until March
6, 2015. The record contains no indication that Lopez
took any steps to ascertain the identities of the Unnamed
Officers before the limitations periods ran. Moreover,

even after the City disclosed the arresting officer's name
in its initial disclosures, on October 20, 2015, Lopez did
not even seek to amend his complaint. Accordingly, Lopez
did not “exercise due diligence, prior to the running of the
statute of limitations,” to identify the Unnamed Officers.
Id.
2

We note the Corporation Counsel's failure to cite to
this subsection of Rule 15 despite its clear relevance.

New York law also allows relation back under CPLR 203,
using a standard somewhat similar to the FRCP 15(c)
(1) (C) standard. See Buran v. Coupal, 87 N.Y.2d 173,
177, 661 N.E.2d 978, 981 (1995). “Under this standard,
the three conditions that must be satisfied in order for
claims against one defendant to relate back to claims
asserted against another are that: (1) both claims arose
out of same conduct, transaction or occurrence, (2)
the new party is ‘united in interest’ with the original
defendant, and by reason of that relationship can be
charged with such notice of the institution of the action
that he will not be prejudiced in maintaining his defense
on the merits and (3) the new party knew or should have
known that, but for an excusable mistake by plaintiff as
to the identity of the proper parties, the action would
have been brought against him as well.” Id. at 178, 661
N.E.2d at 981 (holding, however, that the “mistake” need
not be excusable) (internal quotation marks omitted).
It can hardly be said that all these preconditions have
been meet here, but even assuming that relation back
could still be viable here under New York law despite
the lack of due diligence required under CPLR 1024,
Lopez's failure to timely name the Unnamed Officers
is, in particular, not a “mistake” that qualifies for
relation back. See Strada v. City of New York, No. 11CV-5735 MKB, 2014 WL 3490306, at *8-9 (E.D.N.Y.
July 11, 2014) (holding same where plaintiff inexplicably
failed to amend to name unnamed defendants even after
learning their identities); Bumpus, 66 A.D.3d at 32-34, 883
N.Y.S.2d at 104-07 (noting methods a plaintiff can use
to ascertain the identities of unknown defendants before
limitations period runs); Tucker v. Lorieo, 291 A.D.2d
261, 262, 738 N.Y.S.2d 33, 36 (1st Dep't 2002) (relation
back not available where plaintiff failed to take steps
to ascertain unnamed defendant's identity before filing
original summons and complaint).
*4 Based on the above discussion, this case falls within
the category of cases where leave to amend under Rule
15(a)(2) “should generally be denied in instances of

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3

Lopez v. City of New York, Slip Copy (2017)
2017 WL 213243

futility, undue delay, bad faith or dilatory motive.” Burch
v. Pioneer Credit Recovery, Inc., 551 F. 3d 122, 126 (2d
Cir. 2008). As our analysis explains, amendment here
would be futile, and plaintiff has inexcusably delayed by
failing to move for leave to amend even now. Accordingly,
the false arrest and excessive force claims are time-barred
as against the Unnamed Officers, and they are dismissed.

B. Malicious Prosecution
“In order to sustain a claim for malicious prosecution,
[plaintiff] must demonstrate, among other things, that the
prosecution terminated in his favor.” Shain v. Ellison,
273 F.3d 56, 68 (2d Cir. 2001). Here, plaintiff concedes
that the charges against him were dismissed pursuant to
an adjournment in contemplation of dismissal (“ACD”)
that he received. Pl.'s Opp. Br.; see also Decl. of Peter J.
Fogarty in Support of Def.'s Mot., Exs. C (Criminal Court
documents indicating ACD), D (Lopez's 50-h Hearing
testimony that he received an ACD). It is black letter
law that, under New York law, “an adjournment in
contemplation of dismissal is not considered to be a
favorable termination.” Id.; Smith-Hunter v. Harvey,
95 N.Y.2d 191, 196-97, 734 N.E.2d 750, 753-54 (2000).
Therefore, Lopez's malicious prosecution claim fails, and
we need not address the City's other arguments regarding
this claim.

C. Monell Claims
Lopez's Monell claims fail for two, independent reasons.
First, “[i]t is well settled in this Circuit that personal
involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages
under § 1983.” Provost v. City of Newburgh, 262 F.3d
146, 154 (2d Cir. 2001) (internal quotation marks omitted)
(alteration in original). As discussed above, Lopez has
failed to state any claim with respect to any of the
Unnamed Officers.
Second, Lopez's Monell-specific allegations are
insufficient to state a claim. Establishing the liability of
a municipality under Section 1983 “requires a showing
that the plaintiff suffered a tort in violation of federal
law committed by the municipal actors and, in addition,
that their commission of the tort resulted from a custom
or policy of the municipality.” Askins v. Doe No. 1, 727
F.3d 248, 253 (2d Cir. 2013). “The mere assertion ... that
a municipality has such a custom or policy is insufficient
in the absence of allegations of fact tending to support,

at least circumstantially, such an inference.” Bradley v.
City of New York, No. 08-CV-1106 (NGG), 2009 U.S.
Dist. LEXIS 51532, at *8-9, 2009 WL 1703237 (E.D.N.Y.
June 18, 2009) (internal quotation marks omitted); see also
Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir.
2015) (affirming dismissal of Monell claim premised on
merely conclusory allegations of a custom or policy).
Here, the complaint's allegations of a City custom or
policy resulting in the alleged constitutional violations
are boilerplate and conclusory. See, e.g., Compl. ¶¶ 10
(City “failed to properly train their police department
employees on the proper procedures for conducting an
investigation and arrest”), 11 (“Defendant City also
allowed a policy or custom to be implemented and carried
out, or practiced within its police department, to wit,
using whatever means possible to arrest and prosecute
individuals for various offenses, while being indifferent to
whether or not there was probable cause or a factual basis
for the belief that the person committed the crime.”), 17
(erroneously referring to alleged policies and customs of
“Defendant City of Mount Vernon”). These allegations
are insufficient to support an inference that the City in
fact had a policy or custom that resulted in the alleged
violations. See Littlejohn, 795 F.3d at 315; Bradley, 2009
U.S. Dist. LEXIS 51532, at *8-9, 2009 WL 1703237
(dismissing Monell claim based on similarly conclusory
allegations); Cuevas v. City of New York, No. 07 Civ.
4169 (LAP), 2009 U.S. Dist. LEXIS 114984, at *12, 2009
WL 4773033 (same).
*5 Plaintiff's counsel's effort to salvage his Monell claim
by citing to Floyd v. City of New York, 08-cv-1034
(SAS) (S.D.N.Y. filed Jan. 31, 2008), is misplaced and
unavailing. Floyd only concerned stop-and-frisk policies,
which are not at issue here.
Accordingly, Lopez's claims against the City fail.

IV. Conclusion
The City's motion is granted in its entirety. The case is
hereby dismissed.
SO ORDERED.

All Citations
Slip Copy, 2017 WL 213243

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5

Bussey v. Devane, Not Reported in F.Supp.2d (2013)
2013 WL 4459059

2013 WL 4459059
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
William BUSSEY, Plaintiff,
v.
Christopher DEVANE, Kathleen Rice, Judge
Ferrell, Hempstead Police Department, the
Officer On My Felony Complaint, Defendants.
No. 13–CV–3660(JS)(WDW).
|
Aug. 16, 2013.
Attorneys and Law Firms

however, it is stayed pending the termination of Plaintiff's
state court criminal proceedings.

BACKGROUND
Plaintiff's Complaint is difficult to comprehend. It appears
that Plaintiff seeks to challenge his pre-trial confinement
on two discrete pending state court criminal proceedings.
Plaintiff alleges that, on June 10, 2011, he was arrested
and arraigned after P.O. John Doe observed Plaintiff
participate in a $10 marijuana drug transaction on June
6, 2011. (Compl.¶ IV.) According to Plaintiff, he is also a
pre-trial detainee on a “D.U.I.” charge and claims that the
“courts messed up” and “are trying to put both dockets
together.” (Compl.¶ IV.2.) As a result, Plaintiff claims that
he has “90 days in” on his first D.U.I. charge and he has

No appearance for Defendants.

“yet [to] see[ ] a judge.” 1 Id. Plaintiff questions why it
is taking so long to prosecute him and surmises that it is
because he is black. (Compl.¶ IV.3.)

Opinion

1

William Bussey, East Meadow, NY, pro se.

SEYBERT, District Judge.
*1 Presently pending before the Court is the Complaint
brought by incarcerated plaintiff William Bussey
(“Plaintiff”) pursuant to 42 U.S.C. § 1983 (“Section 1983”)
against his criminal defense attorney, Christopher Devane
(“Devane”), Nassau County District Attorney Kathleen
Rice (“D.A.Rice”), Nassau County District Court Judge
Tricia Ferrell (“Judge Ferrell”), the Hempstead Police
Department (“Police Department”), and the unidentified
Hempstead police officer who filed the felony complaint
against Plaintiff (“P . O. John Doe” and collectively,
“Defendants”). Accompanying the Complaint is an
application to proceed in forma pauperis. Upon review
of the declaration in support of the application to
proceed in forma pauperis, the Court determines that
Plaintiff's financial status qualifies him to commence
this action without prepayment of the filing fee. See
28 U.S.C. § 1915(a)(1). Therefore, Plaintiff's request to
proceed in forma pauperis is GRANTED. However,
for the reasons that follow, all claims against Devane,
D.A. Rice, Judge Ferrell, and the Police Department are
DISMISSED WITH PREJUDICE. Plaintiff's speedy trial
and malicious prosecution claims against P.O. John Doe
are DISMISSED WITHOUT PREJUDICE. Plaintiff's
false arrest claim against P.O. John Doe may proceed;

Plaintiff fails to note that a warrant was issued
for his arrest on June 11, 2012 because he did
not appear in court as directed while released
on his own recognizance on the underlying drug
charges. See New York State Unified Court System,
WebCrims, Case Details–Appearances, available at
http://iapps.courts .state.ny.us/webcrim_ attorney/
DefendantSearch (last visited July 25, 2013).

Plaintiff claims that Judge Ferrell “is very unprofessional
& doesn't honor my motions [to dismiss the misdemeanor
complaint, to produce, and to fire my public
defender, Devane].” (Id.) Plaintiff claims that his
defense attorney, Devane, is “working with the District
Attorney,” (Compl.¶ IV.2) has missed court appearances,
and encouraged Plaintiff to “take eight months with a
felony knowing they didn't have anything & also knowing
I asked for my felony exam.” (Id. ¶ IV.4.)
For relief, Plaintiff seeks unspecified financial
compensation “for losing [his] job, everyday of
incarceration & mental, physical and emotional
distress.” (Compl.¶ V.)

DISCUSSION
I. In Forma Pauperis Applications

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Bussey v. Devane, Not Reported in F.Supp.2d (2013)
2013 WL 4459059

*2 Upon review of Plaintiff's declaration in support of
his application to proceed in forma pauperis, the Court
determines that Plaintiff's financial status qualifies him to
commence this action without prepayment of the filing
fees. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff's
request to proceed in forma pauperis is GRANTED.

II. Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to dismiss
an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who
is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)
(B)(i)-(iii), 1915A(b). The Court is required to dismiss the
action as soon as it makes such a determination. See id.
Courts are obliged to construe the pleadings of a pro
se plaintiff liberally. See Sealed Pl. v. Sealed Def., 537
F.3d 185, 191 (2d Cir.2008); McEachin v. McGuinnis, 357
F.3d 197, 200 (2d Cir.2004). Moreover, at the pleadings
stage of a proceeding, the Court must assume the truth
of “all well-pleaded, nonconclusory factual allegations”
in the complaint. Kiobel v. Royal Dutch Petroleum Co.,
621 F.3d 111, 124 (2d Cir.2010), (citing Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868
(2009)), aff'd, ––– U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d
671 (2013). However, a complaint must plead sufficient
facts to “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. The plausibility standard requires “more than
a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678; accord Wilson v. Merrill Lynch
& Co., 671 F.3d 120, 128 (2d Cir.2011). While “detailed
factual allegations” are not required, “[a] pleading that
offers ‘labels and conclusions' or ‘a formulaic recitation of
the elements of a cause of action will not do.’ “ Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555).

III. Section 1983
Section 1983 provides that
[e]very person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State ...

subjects, or causes to be subjected,
any citizen of the United States ...
to the deprivation of any rights,
privileges, or immunities secured by
the Constitution and laws, shall be
liable to the party injured.
42 U.S.C. § 1983; accord Rehberg v. Paulk, ––– U.S.
––––, 132 S.Ct. 1497, 1501–02, 182 L.Ed.2d 593 (2012).
To state a claim under Section 1983, a plaintiff must “
‘allege that (1) the challenged conduct was attributable
at least in part to a person who was acting under color
of state law and (2) the conduct deprived the plaintiff of
a right guaranteed under the Constitution of the United
States.’ “ Rae v. Cnty. of Suffolk, 693 F.Supp.2d 217,
223 (E.D.N.Y.2010) (quoting Snider v. Dylag, 188 F.3d
51, 53 (2d Cir.1999)). Section 1983 does not create any
independent substantive right; but rather is a vehicle to
“redress ... the deprivation of [federal] rights established
elsewhere.” Thomas v.. Roach, 165 F.3d 137, 142 (2d
Cir.1999); see also Rosa R. v. Connelly, 889 F.2d 435, 440
(2d Cir.1989).
*3 Here, liberally construed, Plaintiff claims to have been
falsely arrested with regard to his June 10, 2011 arrest,
maliciously prosecuted, and denied a speedy trial.

A. Immunity
1. Prosecutorial Immunity
Plaintiff names D.A. Rice as a defendant. It
is wellestablished that prosecutors are entitled to
prosecutorial immunity for “performing prosecutorial
activities that are ‘intimately associated with the judicial
phase of the criminal process,’ “ including the decision
whether not or to commence a prosecution. Ying Jing
Gan v. City of N.Y., 996 F.2d 522, 530 (2d Cir.1993)
(quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct.
984, 47 L.Ed.2d 128 (1976)); see also Amaker v. N.Y.
State Dep't of Corr. Serv., 435 F. App'x 52, 55 (2d
Cir.2011). “Prosecutorial immunity from § 1983 liability
is broadly defined, covering ‘virtually all acts, regardless
of motivation, associated with [the prosecutor's] function
as an advocate.’ “ Hill v. City of N.Y., 45 F.3d 653, 661
(2d Cir.1995) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d
Cir.1994)).
Here, because the claims against D.A. Rice relate
exclusively to the prosecution of Plaintiff in New York

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2

Bussey v. Devane, Not Reported in F.Supp.2d (2013)
2013 WL 4459059

State District Court, Nassau County, they are barred by
absolute prosecutorial immunity and are DISMISSED
WITH PREJUDICE.

2. Judicial Immunity
Plaintiff also seeks to sue New York State District Judge
Ferrell who is allegedly involved with his underlying
state court criminal proceedings. As is readily apparent,
Judge Ferrell is entitled to absolute judicial immunity. It
is well-settled that judges have generally been accorded
absolute immunity for damages arising out of judicial acts
performed in their judicial roles. Mireles v. Waco, 502 U.S.
9, 11–12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); see also
Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir.1990) (“A
judge defending against a section 1983 suit is entitled to
absolute immunity from damages for actions performed
in his judicial capacity.”).
Here, even liberally construed, Plaintiff alleges no acts
performed by Judge Ferrell that fall outside the scope
of absolute judicial immunity. Rather, Plaintiff vaguely
complains that “Judge Ferrell is very unprofessional &
doesn't honor my motions.” (Compl.¶ IV.3.) Deciding
motions is certainly an act performed within a
judge's “judicial capacity” and such determinations are
undoubtedly entitled to absolute judicial immunity.
Plaintiff's mere dissatisfaction with the judge's decision
is insufficient to overcome absolute judicial immunity
and, accordingly, his claims against Judge Ferrell are not
plausible and are DISMISSED WITH PREJUDICE.
Insofar as Plaintiff seeks to allege that Judge Ferrell and
D.A. Rice conspired to delay his trial, his Complaint fails
to allege any facts in support of such claim. Morever, even
if Plaintiff pled overt acts to establish a factual basis for his
conspiracy claim, it too would fail given that a conspiracy
among the judge and the prosecutor in connection with
their judicial and prosecutorial functions is still protected
by absolute immunity. See Dorman v. Higgins, 821 F.2d
133, 139 (2d Cir.1987) (“[F]undamentally, since absolute
immunity spares the official any scrutiny of his motives, an
allegation that an act was done pursuant to a conspiracy
has no greater effect than an allegation that it was done in
bad faith or with malice, neither of which defeats a claim
of absolute immunity.”).

3. Eleventh Amendment Immunity

*4 The Eleventh Amendment to the United States
Constitution provides:
The Judicial power of the United
States shall not be construed to
extend to any suit in law or equity,
commenced or prosecuted against
one of the United States by Citizens
of another State, or by Citizens or
Subjects of any Foreign State.
U.S. CONST. AMEND. XI. “The reach of the Eleventh
Amendment has ... been interpreted to extend beyond
the terms of its text to bar suits in federal courts against
states, by their own citizens or by foreign sovereigns .... “
State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d
71, 95 (2d Cir.2007) (alterations in original) (quoting W.
Mohegan Tribe & Nation v. Orange Cnty., 395 F.3d 18,
20 (2d Cir.2004)). Eleventh Amendment immunity also
extends to suits for money damages against state officials
in their official capacities. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45
(1989) (“[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a
suit against the official's office. As such, it is no different
from a suit against the State itself.” (internal citation
omitted)). 2
2

A narrow exception to this rule exists for
official-capacity suits against state officers seeking
prospective injunctive relief. See Will, 491 U.S. at 71,
n. 10. This exception does not apply to the present
case given that the only relief sought by Plaintiff is
“financial relief.” (Compl.¶ V.)

Here, Plaintiff's Section 1983 claims for money damages
against the state defendants in their official capacities,
namely D.A. Rice and Judge Ferrell, are barred
by the Eleventh Amendment and therefore are not
plausible. Accordingly, such claims are DISMISSED
WITH PREJUDICE.

B. Section 1983 Claim Requires Allegation of Action
Taken Under Color of State Law
Plaintiff also names his court appointed criminal defense
attorney Devane as a Defendant. 3 As noted earlier, a
claim for relief under Section 1983 must allege facts
sufficient to establish that the defendant acted under color
of state “statute, ordinance, regulation, custom or usage.”

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3

Bussey v. Devane, Not Reported in F.Supp.2d (2013)
2013 WL 4459059

42 U.S.C. § 1983; Rae, 693 F.Supp.2d at 223. Thus, private
attorneys, whether court appointed or employed by the
Legal Aid Society, are generally not liable under Section
1983. 4 See Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d
Cir.1997) (“[I]t is well-established that court-appointed
attorneys performing a lawyer's traditional functions as
counsel to defendant do not act ‘under color of state law’
and therefore are not subject to suit under 42 U.S.C. §
1983.” (citing Housand v. Heiman, 594 F.2d 923, 924–25
(2d Cir.1979))); accord Polk Cnty. v. Dodson, 454 U.S.
312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (public
defenders do not act under color of state law); see also
Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir.2000) (“[A]
legal aid society ordinarily is not a state actor amenable to
suit under § 1983.”). “Like the state-action requirement of
the Fourteenth Amendment, the under-color-of-state-law
element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct.
977, 143 L.Ed.2d 130 (1999) (internal quotation marks
omitted). Given that Devane is alleged to be Plaintiff's
defense counsel in the underlying state court criminal
proceedings, he is not a state actor. Accordingly, Plaintiff's
Section 1983 claim against Devane is not plausible and is
thus DISMISSED WITH PREJUDICE.
3

4

Given Plaintiff's description of Devane as Plaintiff's
“public pretender” (Compl. ¶ IV .4) the Court
presumes that Devane is a public defender appointed
by the Court.
Insofar as Plaintiff alleges that Devane conspired
with D.A. Rice and Judge Ferrell to deny Plaintiff
a speedy trial, this unsupported allegation is far too
conclusory to allow judicial review. See, e.g., Polur
v. Raffe, 912 F.2d 52, 56 (2d Cir.1990) (dismissing
claims based on allegations of a conspiracy where
plaintiff “relie[d] on diffuse averments but [did]
not provide a factual basis for his claim or plead
overt acts indicating the existence of a conspiracy”);
Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983)
(“A complaint containing only conclusory, vague, or
general allegations of conspiracy ... cannot withstand
a motion to dismiss.”).

C. Administrative Arm of a Municipality Lacks
Capacity to be Sued
*5 “[U]nder New York law, departments that are
merely administrative arms of a municipality do not
have a legal identity separate and apart from the

municipality and, therefore, cannot sue or be sued.”
Davis v. Lynbrook Police Dep't, 224 F.Supp.2d 463,
477 (E.D.N.Y.2002) (dismissing claim against Lynbrook
Police Department); see also Rose v. Cnty. of Nassau, 904
F.Supp.2d 244, 247 (E.D.N.Y.2012) (dismissing claims
against the Nassau County police department because
“[t]he Police Department is an administrative arm of the
County of Nassau.”); Mikulec v. Town of Cheektowaga,
909 F.Supp.2d 214, 227 n. 9 (W.D.N.Y.2012) (“The police
department, as an administrative arm of the Town, cannot
be sued.”).
Insofar as Plaintiff seeks to sue the Police Department,
the Court finds that it is an administrative arm of
the municipality, namely the Incorporated Village of
Hempstead, and therefore lacks the capacity to be sued.
Thus, Plaintiff's claims against the Police Department
are not plausible and are thus DISMISSED WITH
PREJUDICE.

D. Claim Against P.O. John Doe
Though thin, it appears that Plaintiff seeks to allege
a Section 1983 claim of false arrest against P.O. John
Doe who arrested Plaintiff in June 2011. It is wellestablished that “ ‘[t]here can be no federal civil rights
claim for false arrest where the arresting officer had
probable cause.’ “ Williams v. Town of Greenburgh, 535
F.3d 71, 78–79 (2d Cir.2008) (quoting Singer v. Fulton
Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir.1995)). Here, given
that Plaintiff is awaiting trial on the charges stemming
from the challenged arrest and prosecution, he has not
—and cannot—allege that the prosecution terminated in
his favor. A conviction would establish probable cause
thereby negating his false arrest claims. Accordingly,
Plaintiff's false arrest claim against P .O. John Doe is
hereby STAYED pending the outcome of Plaintiff's state
court criminal proceedings. Wallace v. Kato, 549 U.S.
384, 393–94, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (“If
a plaintiff files a false arrest claim before he has been
convicted (or files any other claim related to rulings that
will likely be made in a pending or anticipated criminal
trial), it is within the power of the district court, and in
accord with common practice, to stay the civil action until
the criminal case or the likelihood of a criminal case is
ended.” (citations omitted)).
The Clerk of the Court is directed to administratively
CLOSE this case. 5 Plaintiff shall request, in writing, that

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Bussey v. Devane, Not Reported in F.Supp.2d (2013)
2013 WL 4459059

this case be reopened within two (2) weeks of the conclusion
of his state court criminal proceedings if so warranted at
that time.
5

Given that the statute of limitations for a Section
1983 false arrest claim begins to run at the time “legal
process was initiated” against Plaintiff, the Court
will stay this claim pending the conclusion of the
underlying state court criminal proceedings rather
than dismiss it without prejudice. Wallace, 549 U.S.
at 390–91.

E. Speedy Trial and Malicious Prosecution Claims
As noted above, Plaintiff also alleges a violation of his
Sixth Amendment right to a speedy trial and that he has
been maliciously prosecuted in violation of the Fourth
Amendment and/or the Fourteenth Amendment's due
process clause. As with his claim for false arrest, in order
to adequately plead claims under Section 1983 that he was
tried and convicted in violation of his Sixth Amendment
right to a speedy trial, Plaintiff must allege that the
state court criminal proceedings terminated in his favor.
Montane v. Pettie, No. 10–CV–4404, 2012 WL 1617713,
at *2 (E.D.N.Y. May 8, 2012). Similarly, to adequately
plead a cause of action for malicious prosecution under
Section 1983, a plaintiff must allege, inter alia, that the
criminal proceeding terminated in plaintiff's favor. Boyd v.
City of N.Y., 336 F.3d 72, 76 (2d Cir.2003); Rivera v. City
of Rochester, 21 F.Supp.2d 230, 234 (W.D.N.Y.1998).
*6 Here, given that Plaintiff's state court criminal
proceedings are still pending, he cannot allege that it

End of Document

terminated in his favor. Accordingly, his speedy trial and
malicious prosecution claims, as pled, are not plausible
and are thus DISMISSED WITHOUT PREJUDICE.

CONCLUSION
For the reasons set forth above, the application to
proceed in forma pauperis is GRANTED, but Plaintiff's
claims against Devane, D.A. Rice, Judge Ferrell, and the
Police Department are sua sponte DISMISSED WITH
PREJUDICE. Plaintiff's false arrest claim against P.O.
John Doe is STAYED pending the conclusion of the
underlying criminal trial, and Plaintiff's speedy trial and
malicious prosecution claims against P.O. John Doe are
DISMISSED WITHOUT PREJUDICE. The Clerk of the
Court shall administratively CLOSE this case. Plaintiff is
ordered to request, in writing, that this case be re-opened
within two (2) weeks of the conclusion of his state court
criminal proceedings if so warranted at that time .
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Order would not be taken in good
faith and therefore in forma pauperis status is DENIED for
the purpose of any appeal. See Coppedge v. United States,
369 U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2013 WL 4459059
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Montane v. Pettie, Not Reported in F.Supp.2d (2012)
2012 WL 1617713

2012 WL 1617713
Only the Westlaw citation is currently available.
NOT FOR ELECTRONIC OR PRINT PUBLICATION
United States District Court,
E.D. New York.
Yotuhel MONTANE, Plaintiff,
v.
Det. William PETTIE, and Det.
Edwin Murphy, Defendants.
No. 10–CV–4404 (ARR).
|
May 8, 2012.
Attorneys and Law Firms
Yotuhel Montane, Fishkill Correctional Facility, Beacon,
NY, for Plaintiff.

referred the case for pretrial purposes, issued a Report
and Recommendation (“R & R”) recommending that
plaintiff's motion for leave to file an amended complaint
be denied. Dkt. No. 40. No objections have been filed.
Accordingly, the court has reviewed the R & R for clear
error on the face of the record. See Advisory Comm.
Notes to Fed.R.Civ.P. 72(b); accord Edwards v. Town
of Huntington, No. 05–CV–339, 2007 U.S. Dist. LEXIS
50074, at *6,2007 WL 2027913 (E.D.N.Y. July 11, 2007);
McKoy v. Henderson, No. 05 Civ. 1535, 2007 U.S. Dist.
LEXIS 15673, at *1,2007 WL 678727 (S .D.N.Y. March
5, 2007). Having reviewed the record, I find no clear error
and adopt the R & R, in its entirety, as the opinion of the
court pursuant to 28 U.S.C. § 636(b)(1).
Because plaintiff shall not be granted leave to amend his
complaint, the only remaining claims are those that are the
subject of defendants' motion to dismiss. For the reasons
stated below, defendants' motion is granted, and the case
is dismissed.

ORDER

BACKGROUND 1

ROSS, District Judge.
*1 On September 22, 2010, Yotuhel Montane
(“plaintiff”) commenced this pro se civil rights action
against, among others, the City of New York, several
assistant district attorneys, and two police detectives.
Dkt. No. 1. By Order dated January 14, 2011, the
court dismissed, without prejudice, plaintiff's malicious
prosecution and speedy trial claims and dismissed from
the case the prosecutors and municipal and state entities
that had been sued. Id. The court allowed plaintiff's
remaining false arrest and state law claims to proceed
against Detective William Pettie and Detective Edwin
Murphy (“defendants”) but stayed those claims pending
termination of plaintiff s related state court criminal
proceedings. Id. On June 14, 2011, plaintiff pleaded guilty
to conspiracy in the second degree. Dkt. No. 24–2. On
July 26, 2011, defendants moved to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt.
No. 23. Plaintiff opposed defendants' motion to dismiss
and requested leave to amend his complaint and add an
additional three defendants. Dkt. Nos. 36–1, 39; see Dkt.
No. 37.
On April 6, 2012, the Honorable Lois Bloom, the
United States Magistrate Judge to whom the court had

1

The facts are taken from the well-pleaded factual
allegations in the complaint and, to the degree
that it helps clarify the allegations, the proposed
amended complaint; the numerous documents
plaintiff attached to the complaint; and documents
upon which the complaint relies or of which is it
proper to take judicial notice. See Rothman v. Gregor,
220 F.3d 81, 88 (2d Cir.2000) (“For purposes of a
motion to dismiss, we have deemed a complaint to
include any written instrument attached to it as an
exhibit or any statements or documents incorporated
in it by reference, ... and documents that the plaintiffs
either possessed or knew about and upon which
they relied in bringing the suit.” (internal citations
omitted)); Pani v. Empire Blue Cross Blue Shield, 152
F.3d 67, 75 (2d Cir.1998) (“[A] district court may rely
on matters of public record in deciding a motion to
dismiss under Rule 12(b) (6).”).

The court has liberally construed plaintiff's complaint as
bringing claims stemming from his arrest and prosecution
for narcotics-related offenses alleged in a criminal
complaint dated July 16, 2009. Dkt. No. 7 at 2–3; Compl.
(Dkt. No. 1) at 39. 2 That criminal complaint asserted
that, between February 2006 and March 21, 2009, in
Brooklyn, New York, plaintiff engaged in conspiracy in

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the first degree and, more specifically, that he entered into
an agreement to possess four ounces or more of cocaine.
Compl. at 39. In the complaint, Detective Pettie averred
that he had reviewed phone records and learned that,
on February 18, 2009, a phone call was intercepted and
recorded between plaintiff and a co-conspirator in which
they discussed the sale and purchase of cocaine. Plaintiff
was arrested on the conspiracy charge on July 16, 2009, in
Miami, Florida. Dkt. No. 39–1 at 1; see also Compl. at 58.
2

The complaint and attachments are not consecutively
numbered. Accordingly, the court refers to the page
numbers assigned by the Electronic Case Filing
System.

*2 Plaintiff was thereafter indicted in New York State
Supreme Court, Kings County. See Dkt. No. 7 at 2–
3 (taking judicial notice of Indictment No. 03196/2009).
On June 14, 2011, plaintiff pled guilty to conspiracy in
the second degree, a violation of New York Penal Law
§ 105.15 and a class B felony, in full satisfaction of
the indictment. Dkt. No. 24–2 at 11, 14–15; Dkt. No.
24–3. During his plea allocation, plaintiff admitted the
charges; stated that, on ten occasions, “more or less,” he
had exchanged cocaine with alleged co-conspirator Erik
Rodriguez at a price of $31,000 per kilogram; and that the
references to cars in the telephone conversation on which
he was recorded were, in fact, references to cocaine. Dkt.
No. 24–2 at 14–18. In exchange for plaintiff's guilty plea,
the People of the State of New York agreed to recommend
that plaintiff be sentenced to a prison term of three to nine
years. Id. at 9.

DISCUSSION
I. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, 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, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2d Cir.2009). Although
still subject to the facial probability standard, a pro se
complaint must be construed liberally and is held to less
stringent standards than pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167

L.Ed.2d 1081 (2007); see Graham v. Henderson, 89 F.3d 75,
79 (2d Cir.1996); Hidalgo v. Kikendall, No. 09–Civ–7536,
2009 U.S. Dist. LEXIS 66020, at *7–8,2009 WL 2176334
(S.D.N.Y. July 22, 2009).

II. Plaintiff Cannot Maintain an Action for False Arrest
A § 1983 claim for false arrest requires proof of
four elements: (1) the defendant intentionally confined
plaintiff, (2) plaintiff was conscious of the confinement,
(3) plaintiff did not consent to the confinement, and
(4) the confinement was not otherwise privileged. See
Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.2003);
Harris v. County of Nassau, 581 F.Supp.2d 351, 354–55
(E.D.N.Y.2008); Broughton v. State, 37 N.Y.2d 451, 456,
373 N.Y.S.2d 87, 335 N.E.2d 310 (1975). If probable cause
exists at the time of arrest, the confinement is privileged.
Jocks, 316 F.3d at 135; Martinez v. City of New York, 340
Fed. Appx. 700, 701 (2d Cir.2009). Thus, the existence of
probable cause constitutes a complete defense to a falsearrest claim. Covington v. City of New York, 171 F.3d 117,
122 (2d Cir.1999).
A “plaintiff can under no circumstances recover if he
was convicted of the offense for which he was arrested.”
Cameron v. Fogarty, 806 F.2d 380, 388 (1986); see also,
Ostroski v. Town of Southold, 443 F.Supp.2d 325, 335
(E.D.N.Y.2006) (“[T]he existence of probable cause as a
matter of law as to some of the crimes that [plaintiff] was
charged on the day of her arrest legitimized the seizure
of her person and her subsequent detention.”). “The
application of this policy is most appropriate where ...
the conviction resulted from a voluntary plea of guilty.”
Pouncey v. Ryan, 396 F.Supp. 126, 127 (D.Conn.1975).
A claim for false arrest is barred even where the civil
rights plaintiff pleaded guilty to a lesser charge pursuant
to a plea agreement that dismissed the charges for which
plaintiff was arrested. Hope v. City of New York, 2010
WL 331678, at *2 (E.D.N.Y. Jan.22, 2010) (“A valid
prosecution resulting in conviction is conclusive evidence
that probable cause existed for an arrest, even if the
conviction is the result of a guilty plea to a lesser
charge than that for which plaintiff was arrested.”);
Roundtree v. City of New York, 778 F.Supp. 614, 619–
20 (E.D.N.Y.1991) (holding that guilty plea of disorderly
conduct when plaintiff was arrested for possession of
cocaine barred § 1983 claim).
*3 In this case, plaintiff pled guilty to violating New
York Penal Law § 105.15 in satisfaction of the crime

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2012 WL 1617713

for which he was arrested and charged. Dkt. No. 24–
3. During his plea allocution, he admitted to arranging
and engaging in the narcotics sales at the center of the
charged conspiracy. Plaintiff's guilty plea to this class B
felony, even if different from the charges for which he was
arrested, necessarily “precludes recovery under § 1983 for
false arrest since it establishes that probable cause existed
at the time of the arrest.” Allison v. Farrell, NO. 97–CV–
2247 (DAB), 2002 WL 88380, at *4 (S.D.N.Y. Jan.22,
2002); see also McFadden v. New York, No. 10–CV–141
(RRM)(CLP), 2011 WL 6813194, at * 4 (E.D.N.Y. Dec.
28, 2011) (“[T]hat plaintiff was ultimately convicted of a
lesser charge than that for which he was arrested has been
uniformly rejected by courts in this Circuit as the basis
for claims of false arrest and malicious prosecution.”).
Plaintiff therefore cannot recover, notwithstanding his
renewed claim of innocence, and his false arrest claim
is properly dismissed. Because the court disposes of the
claim on this ground, it need not address defendants'
alternative arguments for dismissal.

III. Plaintiff's Malicious Prosecution and Speedy Trial
Claims Are Dismissed with Prejudice
The court previously dismissed plaintiff's malicious
prosecution and speedy trial claims without prejudice. See
Dkt. No. 7 at 6–7. Defendants now move to have these
claims dismissed with prejudice. In order to sustain a claim
for malicious prosecution, a plaintiff must allege, inter
alia, a lack of probable cause and that case terminated in
plaintiff's favor. DiBlasio v. City of New York, 102 F.3d
654, 657 (2d Cir.1996) (discussing elements of malicious
prosecution claim). Plaintiff pleaded guilty in satisfaction
to the indictment under which he was prosecuted and has
not demonstrated that his conviction has been invalidated.
As plaintiff is thus precluded from making a showing of
probable cause or termination of the case in his favor,
his claim for malicious prosecution fails as a matter of
law. See Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct.
2364, 129 L.Ed.2d 383 (1994) (“One element that must
be alleged and proved in a malicious prosecution action
is termination of the prior criminal proceeding in favor
of the accused.”). Plaintiff's claim for the violation of his
Sixth Amendment right to a speedy trial, also predicated
on 42 U.S.C. § 1983, is similarly not cognizable. See
Davis v. New York, No. 90 Civ. 6170, 2003 U.S. Dist.
LEXIS 5352,2003 WL 1787151 (S.D.N.Y. Apr. 2, 2003)
(dismissing speedy trial claim where plaintiff could not
show that his conviction had been invalidated).

IV. Plaintiff's Remaining State Law Claims Are Also
Dismissed
Plaintiff may not assert pendent state law claims because
he has not filed a timely notice of claim as required by New
York law. See Dkt. 24–4; N.Y. Gen. Mun. Law §§ 50–e,
50–i (requiring that notice of claim be filed within 90 days
after the incident giving rise to the claim). “[F]iling a notice
of claim is a mandatory condition precedent to suit against
New York City and its employees, and failure to comply
with this condition is grounds for dismissing a state
law cause of action.” Cantave v. New York City Police
Officers, No. 09–CV–2226, 2011 U.S. Dist. LEXIS 34231,
at *24,2011 WL 1239895 (E.D .N.Y. Mar. 28, 2011). To
the degree that plaintiff seeks leave from this court to serve
a late notice of claim, see Dkt. No. 24–4, the court lacks
jurisdiction to extend the time to serve a notice of claim or
to grant permission to file a late notice of claim. N.Y. Gen.
Mun. Law § 50–e(7) (“All applications under this section
[to extend time for a notice of claim] shall be made to the
supreme court or to the county court.”); Sheikh v. City
of N.Y., Police Dep't, No. 05–CV–4718, 2008 U.S. Dist.
LEXIS 107049, at *40 n. 13,2008 WL 5146645 (E.D.N.Y.
Dec.5, 2008). Accordingly, petitioner's state law claims are
dismissed.

CONCLUSION
*4 The court adopts and incorporates the R & R as the
opinion of the court. Plaintiff's request for leave to file an
amended complaint (Dkt. No. 39) is denied, defendants'
motion to dismiss (Dkt. No. 23) is granted, and complaint
is dismissed with prejudice. The court certifies, pursuant to
28 U.S.C. § 1915(a)(3), that an appeal of this order would
not be taken in good faith and, therefore, in forma pauperis
status is denied for the purpose of any appeal. Coppedge
v. United States, 369 U.S. 438, 444–45, 82 S.Ct. 917, 8
L.Ed.2d 21 (1962). The clerk of the court is directed to
enter judgment accordingly.
SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2012 WL 1617713

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Montane v. Pettie, Not Reported in F.Supp.2d (2012)
2012 WL 1617713

End of Document

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4

Corley v. Vance, Not Reported in F.Supp.3d (2015)
2015 WL 4164377

2015 WL 4164377
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Royce CORLEY, Plaintiff,
v.
Cyrus R. VANCE, Jr., et al., Defendants.
No. 15 Civ. 1800(KPF).
|
Signed June 22, 2015.

ORDER TO AMEND
KATHERINE POLK FAILLA, District Judge.
*1 Plaintiff, proceeding pro se and in forma pauperis, filed
this action under 42 U.S.C. § 1983, alleging false arrest
and other claims arising out of his arrest on state charges.
He further seeks to proceed under a pseudonym in this
matter. Plaintiff is directed to amend his complaint (the
“Complaint”) for the reasons set forth below. 1
1

Plaintiff filed this complaint in the United States
District Court for the Eastern District of New York;
that court transferred the matter here. See Corley v.
Vance, No. 15 Civ. 232 (E.D.N.Y. Mar. 6, 2015).

STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof,
that is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from
a defendant who is immune from such relief. 28 U.S.C.
§§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d
636, 639 (2d Cir.2007). While the law mandates dismissal
on any of these grounds, the Court is obliged to construe
pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72
(2d Cir.2009), and interpret them to raise the “strongest
[claims] that they suggest,” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474–75 (2d Cir.2006) (internal
quotation marks and citations omitted) (emphasis in
original).

BACKGROUND
Plaintiff Royce Corley is currently incarcerated at F.C.I.
Danbury, having been convicted in this District on federal
charges involving sex trafficking of minors and possession
of child pornography. See United States v. Corley, No. 13
Cr. 48(RPP) (S .D.N.Y. Apr. 21, 2014), appeal pending,
No. 14–1709 (2d Cir.). 2 In January 2015, Plaintiff filed
the Complaint, alleging constitutional violations and
violations of the Electronic Communications Privacy Act
(“ECPA”), the Stored Communications Act (“SCA”),
the Right to Financial Privacy Act (“RFPA”), and
the Driver's Privacy Protection Act (“DPPA”). Plaintiff
also asserts state law claims over which he asks this
Court to exercise diversity and supplemental jurisdiction.
Named as defendants are: New York County District
Attorney (“DA”) Cyrus R. Vance, Jr., and DA's Office
personnel David Stuart, John Temples, Greg Weiss,
and Elizabeth Pederson; New York Police Department
(“NYPD”) officers Brian Conroy, Michael Daly, Mark
Woods, Jessica Sterling, Giancarlo Cavallo, and Greg
Smith; Mayor's Office of Special Enforcement (“OSE”)
counsel Shari C. Hyman; and various private individuals
and entities, including Consolidated Edison (“Con Ed”)
employees Michael T. Haggerty and Walter Panchyn,
Backpage.com, LLC, Sprint Nextel Corp., T–Mobile
USA Inc., Facebook Inc., Google Inc., Time Warner
Cable Inc. (“TWC”), Research in Motion Ltd. (“RIM”),
the Municipal Credit Union (“MCU”), Capital One N.A.,
JP Morgan Chase Bank N.A., and several John Doe
defendants.
2

On April 21, 2015, following the death of United
States District Judge Robert P. Patterson, Jr., the
criminal case was reassigned to United States District
Judge Alison Nathan. Pending before her is Plaintiff's
pro se motion for bail pending appeal.

The Complaint sets forth the following facts: In 2007,
Plaintiff “was informally doing business under the nom
de guerre ‘Ron Iron’ providing advertising and web
development services to escort, therapeutic and adultoriented businesses.” (Compl.¶ 22). In 2008, Plaintiff
began working as a technician for Con Ed. (Id. at ¶
23). In 2009, an individual who had been convicted
of promoting prostitution “vindictively” forwarded to
law enforcement false information implicating Plaintiff
in illegal activity. (Id. at ¶ 26). In consequence, law
enforcement: (i) induced a minor to work as a confidential

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Corley v. Vance, Not Reported in F.Supp.3d (2015)
2015 WL 4164377

informant and prostitute to manufacture evidence against
Plaintiff; (ii) tampered with advertisements appearing
on Backpage.com by “altering ‘AdOid’ posted by other
individuals, or created by the defendants”; and (iii) used
fabricated evidence to obtain court orders, subpoenas,
and warrants. (Id. at ¶¶ 27–29, 39–41). Accordingly,
“despite using a warrant, defendants had no probable
cause” to obtain access to Plaintiff's accounts, search his
apartment and Con Ed office, or seize his cell phones,
electronic media, and credit cards. (Id. at ¶¶ 46–47).
*2 Plaintiff asserts that he “has not been provided
with any court orders, subpoenas, warrants or notices
in relation to any of these disclosures. 3 (Complaint ¶
26). Backpage.com is alleged to have “aided and abetted”
law enforcement “by granting them unlimited access to
password-protected accounts without the proper legal
authority,” and the other private entity defendants are
alleged to have provided law enforcement with Plaintiff's
records, e-mails, and instant messages. (Id. at ¶¶ 24, 38,
60–62). Plaintiff was indicted in this Court on January
22, 2013. See No. 13 Cr. 48 (Dkt.# 1). The state charges
were dismissed on February 1, 2013, which Plaintiff
characterizes as a favorable termination. (Id. at ¶¶ 46).
Plaintiff was convicted in this District on April 21, 2014.
3

Transcripts filed in Plaintiff's criminal case indicate
that the New York County District Attorney's Office
obtained Plaintiff's records pursuant to court orders
and gave the material to federal prosecutors before
the state charges were dismissed. See United States
v. Corley, No. 13 Cr. 48 (S.D.N.Y. Feb. 28, 2013)
(Transcript of Pretrial Conference, Dkt. # 5 at 3; Trial
testimony, Dkt. # 43 at 29–32 and 44–45, Dkt. # 45
at 14).

Plaintiff asserts federal claims of false arrest, false
imprisonment, malicious prosecution, unlawful search
and seizure, malicious abuse of process, conspiracy to
violate due process, fabrication of evidence, and violations
of the rights to a speedy trial and to privacy, as well as
state law claims of negligence, intentional infliction of
emotional distress, and fraud. (Compl.¶¶ 72–84). Plaintiff
alleges that the private defendants conspired with state
actors to violate his constitutional rights and also failed
to train their employees properly with respect to releasing
customer information. Plaintiff further asserts that the
private defendants violated federal statutes that limit
disclosure of electronic records and communications. (Id.
at ¶¶ 60–63). Plaintiff seeks money damages. Plaintiff has

also moved to proceed under a pseudonym, “[g]iven the
highly sensitive and personal nature of this suit” involving
“the prostitution of minors” and the “risk identification
poses for retaliation and further personal embarrassment
to Plaintiff and innocent nonparties.” (Dkt. # 6 at ¶¶ 4–5).

DISCUSSION
A. Rule 8 of the Federal Rules of Civil Procedure
As an initial matter, Plaintiff's complaint does not comply
with Rule 8 of the Federal Rules of Civil Procedure.
Rule 8 requires a plaintiff to make “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” It is not enough for a complaint to state that the
defendant unlawfully harmed the plaintiff. See Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint
must include “factual enhancement” of the plaintiff's
legal claims; in other words, a complaint must include
some background information about how the defendant
harmed the plaintiff. Id. (citing Twombly, 550 U.S. at
557). The Supreme Court has held that this rule requires
a plaintiff to plead a claim that is “plausible” in light of
the facts alleged. Twombly, 550 U.S. at 570. “[T]o present
a plausible claim at the pleading stage, the plaintiff need
not show that [his or her] allegations ... are more likely
than not true.” Anderson News, LLC v. Am. Media, Inc.,
680 F.3d 162, 184 (2d Cir.2012). Instead, a complaint must
include sufficient factual content for the court “to draw
the reasonable inference that the defendant is liable for
the misconduct alleged.” See Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929).
*3 The Complaint is not a “short and plain” statement
of his claims. Any amended complaint that Plaintiff files
must include specific facts explaining what each defendant
did or failed to do and how those actions violated his
rights. Additionally, Plaintiff must address the substantive
deficiencies set forth below.

B. Section 1983 Claims Implicating the Invalidity of
Plaintiff's Conviction
As pleaded, Plaintiff's speedy trial, false arrest, false
imprisonment, and malicious prosecution claims are
barred because his criminal proceedings were not
terminated in his favor. See Heck v. Humphrey, 512 U.S.

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2015 WL 4164377

477, 484–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
In Heck, the Supreme Court held that “in order to
recover damages for allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid, a Section 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of
habeas corpus.” Id. at 48687. Thus, the putative plaintiff's
§ 1983 claim must be evaluated on the following basis:
[The Court] must consider whether a
judgment in favor of plaintiff would
necessarily imply the invalidity of his
conviction or sentence; if it would,
the complaint must be dismissed
unless the plaintiff can demonstrate
that the conviction or sentence
has already been invalidated. But
if the [Court] determines that
the plaintiff's action, even if
successful, will not demonstrate
the invalidity of any outstanding
criminal judgment against the
plaintiff, the action should be
allowed to proceed, in the absence of
some other bar to suit.
Id. at 487; see also Duamutef v. Morris, 956 F.Supp. 1112,
1115–18 (S.D.N.Y.1997).
Plaintiff asserts that the dismissal of the state charges
brought against him constitutes a favorable termination.
However, Plaintiff was prosecuted federally for the same
conduct, and later convicted. Where, as here, “the
Federal and State actions are inextricably intertwined
and substantially related to one another,” the Heck rule
applies to bar Section 1983 claims based on the dismissed
state charges. Bogle v. Melamed, No. 09 Civ. 1017(RJD),
2012 WL 1117411, at *3 (E.D.N.Y. Mar.30, 2012)
(quoting Thompson v. Delvalle, No. 07 Civ. 4691(BSJ),
2010 WL 2505638, at *3 (S.D.N.Y. June 21, 2010)); cf.
Thompson v. Grey, No. 08 Civ. 4499(JBW), 2009 WL
2707397, at *3 (E.D.N.Y. Aug 26, 2009) (finding false
arrest claim barred where second grand jury shown new
evidence from subsequent investigation of same crime
scene indicted after first grand jury refused to indict);
Peros v. Castano, No. 01 Civ. 4457(JG), 2002 WL 603042,

at *4 (E.D.N.Y. Mar.22, 2002) (holding that termination
is favorable to plaintiff if court's reasons for dismissing the
criminal charges are not inconsistent with innocence of the
accused, citing Cantalino v. Danner, 96 N.Y.2d 391, 395,
729 N.Y.S.2d 405, 754 N.E.2d 164 (2001)). In this case,
Plaintiff was arrested on federal charges arising out of the
same events and conduct underlying the state charges. In
this context, the dismissal of the state charges is not a
favorable termination. Thompson, 2010 WL 2505638, at
*3.
*4 Given that there has not been a favorable termination,
the Court now examines whether any of Plaintiff's Section
1983 claims might be able to proceed notwithstanding the
conviction because they do not implicate the validity of
that conviction. Plaintiff's Sixth Amendment speedy trial
claim necessarily implicates the validity of his conviction.
See Montane v. Pettie, No. 10 Civ. 4404, 2012 WL
1617713(ARR), at *3 (E.D.N.Y. May 8, 2012); Davis v.
New York, No. 90 Civ. 6170(MBM), 2003 WL 1787151,
at *1 (S.D.N.Y. Apr.2, 2003) (dismissing speedy trial
claim where plaintiff could not show that his conviction
had been invalidated); see also Zarro v. Spitzer, 274 F.
App'x 31, 34 (2d Cir.2008) (summary order) (affirming
sua sponte dismissal of claims raising questions about
plaintiff's Sixth Amendment right to counsel because such
claims implicate the validity of conviction). That claim is
therefore dismissed.
Favorable termination is a prima facie element of a
malicious prosecution claim. See Heck, 512 U.S. at 484–
86. Accordingly, Plaintiff's malicious prosecution claim is
dismissed.
Plaintiff may, however, be able to assert certain of his
Fourth Amendment claims. In narrow circumstances, a
suit for damages attributable to an allegedly unreasonable
search may lie even if the challenged search produced
evidence that was introduced in a criminal trial resulting
in the § 1983 plaintiff's still-outstanding conviction.
Heck, 512 U.S. at 487 n. 7. “Because of doctrines
like independent source and inevitable discovery ... and
especially harmless error, ... such a § 1983 action, even if
successful, would not necessarily imply that the plaintiff's
conviction was unlawful.” Id. (citing Murray v. United
States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472
(1988); Arizona v. Fulminante, 499 U.S. 279, 307–08, 111
S.Ct. 1246, 113 L.Ed.2d 302 (1991)).

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Corley v. Vance, Not Reported in F.Supp.3d (2015)
2015 WL 4164377

To determine if a Section 1983 claim alleging an unlawful
search would necessarily imply the invalidity of his
conviction, the Court must “ascertain whether plaintiff
could have been convicted even if the ... evidence [from
the allegedly illegal search were] suppressed[.]” Bibbins v.
Nextel Comm., Inc., No. 08 Civ. 5075(CM), 2010 WL
4503120, at *4 (S.D.N.Y. Nov.19, 2010); see also Zarro,
274 F. App'x at 35–36 (reversing in part the district
court's order dismissing plaintiff's claims on Heck grounds
and holding that plaintiff's illegal search claims would
not imply the invalidity of his conviction); Bogle, 2012
WL 1117411, at *3; Jean–Laurent v. Hennessey, No.
05 Civ. 1105(JFB), 2008 WL 3049875, at *8 (E.D.N.Y.
Aug.1, 2008) (“Heck does not bar plaintiff's claim for ...
unreasonable search and seizure”); Powell v. Scanlon,
390 F.Supp.2d 172 (D.Conn.2005) (claims for damages
attributable to an allegedly unreasonable search would
not necessarily imply the invalidity of a conviction, such as
where the “conviction is obtained by independent evidence
untainted by the wrongful arrest”).
*5 Here, the factual record is insufficient to determine
whether evidence obtained as a result of the allegedly
unlawful arrest was essential to plaintiff's conviction. See,
e.g., Fifield v. Barrancotta, 353 F. App'x 479, 481 (2d
Cir.2009) (summary order) (remanding to the district
court to determine the applicability of Heck to the
appellant's Fourth Amendment claims). 4 However, in
this context, “to recover compensatory damages, a §
1983 plaintiff must prove not only that a search was
unlawful, but that it caused him actual, compensable
injury, which, does not encompass the ‘injury’ of being
convicted and imprisoned (until his conviction has been
overturned).” Heck, 512 U.S. at 487 n. 7 (citing Memphis
Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct.
2537, 91 L.Ed.2d 249 (1986)). Plaintiff does not allege
that he suffered an actual, compensable injury beyond
his conviction and imprisonment. At this early stage,
however, Plaintiff's Fourth Amendment claims cannot be
dismissed based on Heck.
4

A review of the criminal docket reveals no litigation
regarding the validity of warrants or subpoenas or the
admissibility of evidence obtained pursuant to court
orders.

C. Other Constitutional Claims
Plaintiff also asserts that Defendants, several of whom
are private actors, conspired to violate his constitutional

rights. A plaintiff asserting constitutional violations under
Section 1983 must allege a deprivation of federally
protected rights by persons acting under color of state law.
42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
155–57, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). The Court
may dismiss a complaint that fails to allege state action.
DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 311 (2d
Cir.) (affirming dismissal of complaint where plaintiff
failed to include allegations of state action in complaint),
modified on other grounds, 520 F.2d 409 (2d Cir.1975).
In addition, to obtain damages, Plaintiff must allege
facts showing each Defendant's personal involvement in
violating his constitutional rights. See Patterson v. County
of Oneida, 375 F.3d 206, 229 (2d Cir.2004) (“[A] plaintiff
must establish a given defendant's personal involvement
in the claimed violation in order to hold that defendant
liable in his individual capacity under § 1983.”).
To state a Section 1983 conspiracy claim, a plaintiff must
allege facts showing (i) an agreement between two or more
state actors or between a state actor and a private entity
(ii) to act in concert to inflict an unconstitutional injury,
and (iii) an overt act done in furtherance of that goal
causing damages. See Ciambriello v. County of Nassau,
292 F.3d 307, 324–25 (2d Cir.2002) (“A merely conclusory
allegation that a private entity acted in concert with a state
actor does not suffice to state a § 1983 claim against the
private entity.”); see also Dwares v. City of New York, 985
F.2d 94, 98 (2d Cir.1993) (“A private individual may be
subject to liability under [Section 1983] if he or she willfully
collaborated with an official state actor in the deprivation
of the federal right .”); Deskovic v. City of Peekskill, 894
F.Supp.2d 443, 465 (S.D.N.Y.2012).
*6 Conspiracy claims are “so easily made and
can precipitate such protracted proceedings with such
disruption of governmental functions” that detailed fact
pleading is required. Bender v. City of New York, No.
09 Civ. 3286(BSJ), 2011 WL 4344203, at *1 (S.D.N.Y.
Sept.14, 2011) (quoting Angola v. Civiletti, 666 F.2d 1, 4
(2d Cir.1981)). “Assertions lacking factual foundation ...
are merely conclusory allegations and are insufficient to
state a claim.” See Jackson v. County of Rockland, 450
F. App'x 15, 19 (2d Cir.2011) (summary order) (quoting
Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d
Cir.2006)); Gallop v. Cheney, 642 F.3d 364, 369 (2d
Cir.2011) (finding that plaintiff's allegations of conspiracy
were “baseless” where plaintiff “offer[ed] not a single
fact to corroborate her allegation of a ‘meeting of the

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Corley v. Vance, Not Reported in F.Supp.3d (2015)
2015 WL 4164377

minds' among the coconspirators.”); Boddie v. Schnieder,
105 F.3d 857, 862 (2d Cir.1997) (dismissing complaint in
part because claims were “unsupported, speculative, and
conclusory” (internal quotation marks omitted)).
Plaintiff wholly fails to allege specific facts that would
plausibly show the existence of an agreement or concerted
action among the named Defendants. The Complaint does
not describe either the nature of the purported agreement
or the specific acts in which Defendants allegedly engaged
in furtherance of an agreement. See Martinez v. Queens
Cty. Dist. Atty., No. 12 Civ. 6262(RRM), 2014 WL
1011054, at *15 (E.D.N.Y. Mar.17, 2014) (dismissing
Section 1983 conspiracy claims against Verizon N.Y. and
T–Mobile). Indeed, Plaintiff's allegations against private
defendants consist primarily of conclusory accusations
that they provided law enforcement with records in
response to allegedly invalid court orders, subpoenas, or
warrants, or that they illegally (“without proper legal
authority”) provided access to his account information.
Mere compliance with court orders does not constitute
action under color of state law. See, e.g., Martinez,
2014 WL 1011054, at *15 (“Plaintiff's bald assertions
that there was a conspiracy between state actors and
Verizon N.Y. and T–Mobile to illegally wiretap him,
without more, are insufficient to plausibly allege that
these private defendants were acting under the color
of state law.”); Barroga–Hayes v. Susan D. Settenbrino,
P.C., No. 10 Civ. 5298(RJD), 2012 WL 1118194, at *8
(E.D.N.Y. Mar.30, 2012) (noting that pro se plaintiff
“suggests erroneously that the issuance of and compliance
with” a subpoena transforms private defendants into state
actors); Melnitzky v. HSBC Bank USA, No. 06 Civ.
13526(JGK), 2007 WL 1159639, at *9 (S.D.N.Y. Apr.18,
2007). Moreover, there are no allegations suggesting that
the private defendants knew the subpoenas or other
court orders were invalid or had reason to question their
validity. Cf. Franks v. Delaware, 438 U.S. 154, 171, 98
S.Ct. 2674, 57 L.Ed.2d 667 (1978) (“A search warrant that
has been issued by a neutral magistrate is presumptively
valid.”). Accordingly, these allegations do not state a
claim for relief.
*7 Additionally, Plaintiff's allegations that the private
defendants failed to train their employees properly
regarding the release of customer records do not state
a claim. As just discussed, Plaintiff alleges no facts
suggesting the private defendants had reason to question

the legality of the court orders under which Plaintiff's
information was released. In any event, failure to train
is a theory of municipal liability under Section 1983,
not of private liability; a “municipality can be liable for
failing to train its employees where it acts with deliberate
indifference in disregarding the risk that its employees
will unconstitutionally apply its policies without more
training.” Amnesty Am. v. Town of W. Hartford, 361 F.3d
113, 129 (2d Cir.2004) (citing City of Canton v. Harris,
489 U.S. 378, 387–90, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989)); see also Monell v. Dep't of Soc. Serus., 436 U.S.
658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). There is no
analogous failure-to-train theory that would apply to the
private defendants and, in any event, Plaintiff has failed to
allege facts showing that the private Defendants violated
his constitutional rights by releasing his data.

D. Statutory Claims
Plaintiff asserts claims for civil damages under federal
statutes governing access to wire, oral, and electronic
communications. But the cited statutes contain defenses
for releasing records pursuant to a court order and/or
explicitly provide that such releases do not state a cause
of action. The Federal Wiretap Act, 18 U.S.C. § 2520,
contains an exception for service providers that assist
law enforcement pursuant to a court order, id. § 2511(2)
(a)(ii), and also provides that a good faith reliance on
a court order is a complete defense to civil or criminal
charges, id. § 2520(d)(1). Both the DPPA, 18 U.S.C. §
2721(b)(1), and the RFPA, 12 U.S.C. § 3402, contain
law enforcement exceptions, and the ECPA, 18 U.S.C. §
2703(c)(1), provides that a governmental entity seeking
information from a service provider must comply with
specific legal process or obtain the subscriber's consent.
Plaintiff alleges not that the private Defendants turned
material over without a warrant or subpoena, but that
they did so in response to allegedly invalid court orders.
However, Plaintiff fails to provide any facts suggesting
that the private Defendants either violated the cited
statutes or would not be protected under the statutory
defenses. Without supporting facts, these allegations do
not state a claim for relief.

E. State Law Claims
Plaintiff purports to assert state law claims under both
the Court's diversity jurisdiction, 28 U.S.C. § 1332, and its
supplemental jurisdiction, 28 U.S.C. § 1367. To establish

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Corley v. Vance, Not Reported in F.Supp.3d (2015)
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diversity jurisdiction under Section 1332, the plaintiff
must allege to a “reasonable probability,” that the claim
is in excess of the sum or value of $75,000—the statutory
jurisdictional amount. See Colavito v. N.Y. Organ Donor
Network, Inc., 438 F.3d 214, 221 (2d Cir.2006). Moreover,
diversity of citizenship must be complete; in other words,
“no plaintiff and no defendant [may be] citizens of the
same State.” Wis. Dep't of Corr. v. Schacht, 524 U.S. 381,
388, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998).
*8 For purposes of determining the Court's diversity of
citizenship subject matter jurisdiction, a prisoner retains
his pre-incarceration domicile, rather than establishing
a new domicile where he is incarcerated. See LoCurto
v. LoCurto, No. 07 Civ. 8238(NRB), 2008 WL 4410091,
at *5 (S.D.N.Y. Sept.25, 2008); Poucher v. Intercounty
Appliance Corp., 336 F.Supp.2d 251, 253 (E.D.N.Y.2004);
Waste Recovery Corp. v. Mahler, 566 F.Supp. 1466, 1468
(S.D.N.Y.1983). But see Housand v. Heiman, 594 F.2d
923, 926 n. 5 (2d Cir.1979) (per curiam ) (noting prisoner
is allowed an opportunity to show that he has satisfied
the prerequisites for establishing domicile in his place of
incarceration).
Plaintiff is currently incarcerated in Connecticut, but
it is not clear where Plaintiff was domiciled before
his incarceration or that he intended to change his
domicile. All Defendants appear to be citizens of New
York. If Plaintiff was domiciled in New York before his
incarceration, and he has not manifested an intention to
change his domicile, diversity is lacking in this case.
The Court may decline to exercise supplemental
jurisdiction over state-law claims when it “has dismissed
all claims over which it has original jurisdiction.” 28
U.S.C. § 1367(c)(3); see Martinez v. Simonetti, 202
F.3d 625, 636 (2d Cir.2000) (directing dismissal of
supplemental state-law claims where no federal claims
remained). Plaintiff's original pleading fails to state federal
claims against the private Defendants. Should Plaintiff's
amended complaint fail to remedy the deficiencies
discussed in this Order, the Court may decline to exercise
its supplemental jurisdiction over any state law claims
against the private Defendants and dismiss them from the
action entirely.

F. Motion to Proceed Pseudonymously
Rule 10(a) of the Federal Rules of Civil Procedure
provides that “[t]he title of [a] complaint must name all the

parties[.]” “This requirement ... serves the vital purpose
of facilitating public scrutiny of judicial proceedings and
therefore cannot be set aside lightly.” Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 188–89 (2d Cir.2008).
The use of a pseudonym by a plaintiff in civil litigation
“must be balanced against both the public interest in
disclosure and any prejudice to the defendant.” Id. at 189.
When determining whether a litigant can proceed under
a pseudonym, the following nonexhaustive list of factors
should be considered:
[i] whether the litigation involves
matters that are highly sensitive
and [of a] personal nature[;][ii]
whether identification poses a risk
of retaliatory physical or mental
harm to the ... party [seeking to
proceed anonymously] or even more
critically, to innocent nonparties[;]
[iii] whether identification presents
other harms and the likely severity
of those harms, including whether
the injury litigated against would
be incurred as a result of
the disclosure of the plaintiff's
identity[;][iv] whether the plaintiff
is particularly vulnerable to the
possible harms of disclosure,
particularly in light of his age[;][v]
whether the suit is challenging the
actions of the government or that
of private parties[;][vi] whether the
defendant is prejudiced by allowing
the plaintiff to press his claims
anonymously, whether the nature
of that prejudice (if any) differs at
any particular stage of the litigation,
and whether any prejudice can be
mitigated by the district court[;][vii]
whether the plaintiff's identity has
thus far been kept confidential[;]
[viii] whether the public's interest
in the litigation is furthered by
requiring the plaintiff to disclose
his identity[;][ix] whether, because
of the purely legal nature of
the issues presented or otherwise,
there is an atypically weak public
interest in knowing the litigants'
identities[;] and [x] whether there

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2015 WL 4164377

are any alternative mechanisms for
protecting the confidentiality of the
plaintiff.
*9 Id. at 190 (internal citations and quotation marks
omitted (alterations in original). “[T]his factor-driven
balancing inquiry requires a district court to exercise its
discretion in the course of weighing competing interests[.]”
Id.
Plaintiff's conviction is a matter of public record. While
arguments may be made as to some of the factors
mentioned above, figuratively speaking, the cat is already
out of the bag. Moreover, Plaintiff asserts in the
Complaint that government officials and entities violated
his rights and contributed to an unjust conviction and a
miscarriage of justice. Such allegations are a matter of
public concern. Accordingly, the Court concludes that
the circumstances here are not sufficiently extraordinary
to outweigh the presumption in favor of public access.
Therefore, Plaintiff's motion is denied, and the Clerk of
Court is directed to terminate docket entry 6. 5
5

On May 19, 2015, before the Court ruled on Plaintiff's
motion to proceed under a pseudonym, Plaintiff
submitted a “complaint supplement” containing
personal data. (Dkt.# 13). The Clerk of Court
docketed that document as “court view only.”
The Court will either consider restricting access to
individual documents or revisit this issue as needed.

G. Leave to Amend
Plaintiff is granted leave to amend the Complaint to
detail his claims. In the statement of claim, Plaintiff
must provide a short and plain statement of the relevant
facts supporting each claim against each defendant
named in the amended complaint. The naming of John
Doe defendants does not toll the three-year statute of
limitations period governing this action and Plaintiff shall
be responsible for ascertaining the true identity of any
“John Doe” defendants and amending his complaint
to include the identity of any “John Doe” defendants
before the statute of limitations period expires. Should
End of Document

Plaintiff seek to add a new claim or party after the
statute of limitations period has expired, he must meet the
requirements of Rule 15(c) of the Federal Rules of Civil
Procedure. Plaintiff's amended complaint will completely
replace, not supplement, the Complaint; therefore, any
facts or claims that Plaintiff wishes to maintain must be
included in the amended complaint.

CONCLUSION
The Clerk of Court is directed to mail a copy of this
order to Plaintiff and note service on the docket. The
motion to proceed under a pseudonym is denied without
prejudice, and the Clerk of Court is directed to terminate
docket entry 6. Plaintiff is directed to file an amended
complaint that complies with the standards set forth
above. Plaintiff must submit the amended complaint to
this Court's Pro Se Intake Unit within 60 days of the
date of this order, caption the document as an “Amended
Complaint,” and label the document with docket number
15–CV–1800 (KPF). An Amended Complaint for Civil
Rights is attached to this order for Plaintiff's convenience.
No summons will issue at this time. If Plaintiff fails to
comply within the time allowed, and he cannot show
good cause to excuse such failure, the complaint will be
dismissed for failure to state a claim upon which relief may
be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that
any appeal from this order would not be taken in good
faith, and therefore in forma pauperis status is denied for
the purpose of an appeal. Cf. Coppedge v. United States,
369 U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962)
(holding that an appellant demonstrates good faith when
he seeks review of a nonfrivolous issue).
*10 SO ORDERED.

All Citations
Not Reported in F.Supp.3d, 2015 WL 4164377

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7

Davis v. State of New York, Not Reported in F.Supp.2d (2003)
2003 WL 1787151

2003 WL 1787151
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Samuel DAVIS, Plaintiff,
v.
THE STATE of New York, et al. Defendants.
No. 90 Civ. 6170(MBM).
|
April 3, 2003.
Attorneys and Law Firms

replacements of the defendant's attorney at his request.”
People v. Davis, No. 1797/86, slip op. at 8 (July 25,
1991). This same Court denied Davis' motion to set
aside his conviction pursuant to New York Criminal
Procedure Law § 440.10, and the New York Supreme
Court, Appellate Division, First Department affirmed.
See People v. Davis, 226 A.D.2d 125, 126, 640 N.Y.S.2d
53, 53 (N.Y.App.Div.1996). Davis then filed a petition
pursuant to 28 U.S.C. § 2254 (2000) in this court. Judge
McKenna dismissed this petition, see Davis v. Kelly, No.
97 Civ. 1653(LMM), 2000 WL 1772794 (S.D.N.Y. Nov.
30, 2000), and the Second Circuit affirmed, see Davis v.
Kelly, 316 F.3d 125 (2d Cir.2003).

*1 Plaintiff, Samuel Davis, moves to restore his
complaint to the court calendar. This motion is granted.
However, plaintiff's complaint is dismissed on the court's
own motion.

“[A]lthough styled as a § 1983 claim, plaintiff's complaint
essentially alleges that he was tried and convicted in
violation of his Sixth Amendment right to a speedy
trial.” Davis v. State of New York, et al., No. 90 Civ.
6170(MBM), 1991 WL 156351, at *7 (S .D.N.Y. Aug.
6, 1991). The Supreme Court held in Heck v. Humphrey,
512 U.S. 477 (1994), that a state prisoner's claim for
damages is not cognizable under § 1983 if “a judgment
in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence,” unless the
prisoner can demonstrate that the conviction or sentence
has previously been invalidated. Id. at 487.

In Davis v. State of New York, et al., No. 90 Civ.
6170(MBM), 1991 WL 156351 (S.D.N.Y. Aug. 6, 1991),
this court considered Davis' claims, brought under 42
U.S.C. §§ 1983 and 1985, that several persons deprived
and conspired to deprive him of his constitutional rights
by reason of the lengthy delay in his retrial on charges
of murder in the second degree and criminal possession
of a weapon in the second degree. I dismissed all of
Davis' claims except for his § 1983 claim for monetary
damages against defendant Matthew Crosson, and his
claims against defendants Lynne Stewart, Stanley Cohen,
and Ralph Poynter, who at that time had been served
recently and had not yet moved for dismissal. I then placed
this action on the court's suspense calendar because Davis
was pursuing an appeal that was relevant to whether his
remaining claims could go forward.

A judgment in favor of Davis on his § 1983 damages claim
would necessary imply the invalidity of his conviction
or sentence. Because Davis' conviction has not been
invalidated, his claim is not cognizable. Therefore, Davis'
claim against defendant Crosson is dismissed. For the
same reason, Davis' § 1983 claims against Stewart, Cohen,
and Poynter are dismissed. Davis' claim that Stewart,
Cohen, and Poynter conspired to deprive him of his
constitutional right to a speedy trial also is not cognizable
here because Davis can show no injury and the issue is
barred by the doctrine of collateral estoppel. See People
v. Davis, No. 1797/86, slip op. at 8 (July 25, 1991)
(finding that the delay between the first and second trials
was “occasioned by the repeated replacements of the
defendant's attorney at his request”). Davis' complaint is
dismissed.

Samuel Davis, Attica, NY, Petitioner pro se.

OPINION AND ORDER
MUKASEY, J.

The New York Supreme Court denied Davis' motion to
set aside his verdict, finding that the delay between the
first and second trials was “occasioned by the repeated

End of Document

All Citations
Not Reported in F.Supp.2d, 2003 WL 1787151
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1

Fobbs v. City of New York, Slip Copy (2017)
2017 WL 2656207

KeyCite Blue Flag – Appeal Notification
Appeal Filed by FOBBS v. CITY OF NEW YORK, 2nd Cir., July 21,

2017

2017 WL 2656207
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Kim FOBBS, Plaintiff,
v.
The CITY OF NEW YORK, and New York
City Police Department, Defendants.
15-cv-6736 (PKC)
|
Signed 06/19/2017
Attorneys and Law Firms
Carlos Gonzalez, Gonzalez Law Associates, New York,
NY, for Plaintiff.

MEMORANDUM AND ORDER
P. Kevin Castel, United States District Judge
*1 Plaintiff Kim Fobbs brings this action against the
City of New York (“City”) and the New York City Police
Department (“NYPD”), asserting claims under 42 U.S.C.
§ 1983. Fobbs's complaint alleges violations of her right to
a speedy trial, malicious prosecution, infliction of extreme
emotional distress, harassment, and municipal liability.
Fact discovery in this action has concluded. Defendants
now move for summary judgment on all claims. For the
following reasons defendants' motion is GRANTED.

BACKGROUND
The following facts are taken from materials submitted
in connection with the present motion and are either
undisputed or construed “in the light most favorable to the
[plaintiff].” Costello v. City of Burlington, 632 F.3d 41, 45
(2d Cir. 2011). Fobbs, who is represented by counsel, has
not submitted a Rule 56.1 statement and in fact, appears to
have copied the text of the defendants' Rule 56.1 statement
into the fact section of her opposition brief. The Court
accepts the facts set forth in defendants' unchallenged
statement to the extent they are supported by the record.

See Giannullo v. City of New York, 322 F.3d 139, 140 (2d
Cir. 2003) (citing Holtz v. Rockefeller & Co., 258 F.3d 62,
74 (2d Cir. 2001)).
Fobbs was arrested by the NYPD on March 24,
2011 on charges of grand larceny and offering a false
instrument for filing in connection with her receipt of
Section 8 housing benefits from the New York City
Housing Authority (“NYCHA”). 1 (Johnson Decl. Ex. G;
Criminal Complaint, Johnson Decl. Ex. C). The criminal
complaint, sworn out by NYCHA Special Investigator
Beth-Ann Permuy, accused Fobbs of failing to report
her husband's income on her applications for Section
8 housing vouchers. (Johnson Decl. Ex. C). Fobbs and
her husband William Adams were married on May 4,
1992. (Defs.' 56.1 ¶ 2; Johnson Decl. Ex. C). Fobbs began
receiving Section 8 housing vouchers in 1996. (Defs.' 56.1
¶ 1). Using the vouchers, Fobbs rented an apartment
located at 370 East 173rd Street in the Bronx. (Id. ¶ 4).
Later, she moved to 4005 Dereimer Avenue in the Bronx.
(Id. ¶ 5). Fobbs's rent at 4005 Dereimer Avenue was
subsidized by the Section 8 program from 2000 to 2009.
(Id. ¶ 6).
1

The record is unclear as to the exact date of Fobbs's
arrest. (Compare NYPD Arrest Report, Johnson
Decl. Ex. G (listing date of arrest as March 24, 2011),
with Compl. ¶ 6 (claiming arrest took place on March
23, 2011), and Defendants' Rule 56.1 Statement
(“Defs.' 56.1”) ¶ 26 (stating arrest took place March
26, 2011)). However, this discrepancy is immaterial to
the Court's summary judgment analysis.

The amount of the subsidy Fobbs received was determined
by the number of people in her household as well as each
person's employment status and income level. (Id. ¶ 7).
In “Affidavits of Income” filed with NYCHA on March
24, 2006, April 12, 2007, April 18, 2008, and February
24, 2009, Fobbs reported that she lived only with her
children and grandchildren. (Id. ¶ 18). She did not report
living with her husband and did not include his income
on her “Affidavits of Income.” (Id. ¶¶ 17-18). However,
her husband, Adams, listed 4005 Dereimer Avenue as his
residence on a New York state driver's license issued in
2004, and on a commercial driver learner's permit issued
to him in 2005. (Id. ¶¶ 14-15). Permuy's investigation
also revealed that Adams had worked full-time as a New
York City bus driver since approximately 2004 where he
listed 4005 Dereimer Avenue as his home address. (Id. ¶
8; Johnson Decl. Ex. C). In addition, W-2 forms issued

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Fobbs v. City of New York, Slip Copy (2017)
2017 WL 2656207

by the Metropolitan Transit Authority (“MTA”) between
2005 and 2008 listed his residence as 4005 Dereimer
Avenue. (Defs.' 56.1 ¶ 11). During that time he earned in
excess of $191,000, which was not included in any of the
“Affidavits of Income” Fobbs filed with NYCHA. (Id. ¶¶
18, 23).

U.S. 242, 248 (1986). It is the initial burden of a movant
on a summary judgment motion to come forward with
evidence on each material element of his claim or defense,
demonstrating that he is entitled to relief as a matter of
law. Vt. Teddy Bear Co., Inc. v. 1–800 Beargram Co., 373
F.3d 241, 244 (2d Cir. 2004).

*2 Based on this information, Permuy swore out a
criminal complaint on March 24, 2011 charging Fobbs
with grand larceny and offering a false instrument for
filing. (Id. ¶ 22). The criminal complaint states that
Fobbs would not have been eligible to receive Section
8 housing vouchers if she had reported her husband's
income. (Johnson Decl. Ex. C). As a result of her failure
to report her husband's income and presence in the
apartment, NYCHA overpaid Fobbs in excess of $36,504
between 2006 and 2009. (Defs.' 56.1 ¶ 24). NYPD officers
arrested Fobbs in Dutchess County on March 24, 2011.
(Id. ¶ 26; Johnson Decl. Ex. G). These charges were
ultimately dismissed on March 19, 2015 upon a motion
under New York Criminal Procedure Law (“C.P.L.”) §
30.30. (Id. ¶ 29). C.P.L. § 30.30 requires that the state
prosecutor be ready for trial within a prescribed period
of time depending on the nature of the offenses charged.
N.Y. CRIM. PROC. LAW § 30.30. According to Fobbs,
the Assistant District Attorneys misrepresented their trial
readiness to the court and failed to present witnesses in a
timely manner and were therefore unable to move forward
with the case. (Compl. ¶ 14; Pl.'s Mem. 10).

When the moving party has met this initial burden and has
asserted facts demonstrating that the non-moving party's
claim cannot be sustained, the opposing party “must set
forth specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 250. In raising a triable issue
of fact, the non-movant carries only a “limited burden
of production,” but nevertheless “must demonstrate more
than some metaphysical doubt as to the material facts,
and come forward with specific facts showing that there
is a genuine issue for trial.” Powell v. Nat'l Bd. of Med.
Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (internal quotation
marks omitted).

During her deposition in this action, Fobbs testified
that she and her husband did not live together between
1995 and 2009, and that he lived at his father's house
during that time. (Fobbs Deposition, Johnson Decl. Ex. B
15:16-25, 16:10-12). She also explained that Adams only
used the 4005 Dereimer address on his driver's license and
other official documents so that he could claim head of
household status on his tax returns, as he could not do so
using his father's address. (Id. 29:14-24).

DISCUSSION
I. Legal Standard.
Summary judgment should be granted “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
of law.” Rule 56(a), Fed. R. Civ. P. A fact is material
if it “might affect the outcome of the suit under the
governing law....” Anderson v. Liberty Lobby, Inc., 477

An issue of fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. The Court must
“view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
its favor, and may grant summary judgment only when
no reasonable trier of fact could find in favor of the
nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d
Cir. 1995) (internal quotations and citations omitted). In
reviewing a motion for summary judgment, the Court
must scrutinize the record, and grant or deny summary
judgment as the record warrants. Rule 56(c), Fed. R. Civ.
P. In the absence of any disputed material fact, summary
judgment is appropriate.

II. Claims Against the NYPD.
The NYPD is not a juridical entity separate from the City
of New York. It is a non-suable agency of the City. See
N.Y. City Charter § 396 (“All actions and proceedings for
the recovery of penalties for the violation of any law shall
be brought in the name of city of New York and not in that
of any agency, except where otherwise provided by law.”).
Fobbs's claims against the NYPD must be dismissed. See
Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir.
2007) (approving the district court's conclusion that the
NYPD is non-suable agency of the City).

III. Section 1983 Claims.

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*3 To establish a claim under 42 U.S.C. § 1983, a
plaintiff must prove that “(1) the challenged conduct was
attributable at least in part to a person who was acting
under color of state law and (2) the conduct deprived the
plaintiff of a right guaranteed under the Constitution of
the United States.” Snider v. Dylag, 188 F.3d 51, 53 (2d
Cir. 1999). In this case, Fobbs claims that she was: (a)
deprived of her rights to a speedy trial, (b) maliciously
prosecuted, (c) subjected to extreme emotional distress,
and (d) subjected to a conspiracy to harass her. Fobbs also
claims that the City is liable for the alleged constitutional
violations she suffered. See Monell v. Dep't of Soc. Servs.
of City of New York, 436 U.S. 658, 696 (1978).

A. Speedy Trial.
The Sixth Amendment guarantees criminal defendants
“the right to a speedy ... trial.” The right attaches upon
either a formal indictment or information or upon the
imposition of “the actual restraints imposed by arrest
and holding to answer a criminal charge.” United States
v. Marion, 404 U.S. 307, 320 (1971). Fobbs appears
to base her Sixth Amendment claim on the failure of
the District Attorney for Bronx County to present and
disclose witnesses in a timely manner leading to multiple
adjournments of the trial date and ultimately dismissal
of the charges pursuant to C.P.L. § 30.30. However, the
limitations of C.P.L. § 30.30 are a state statutory standard,
and therefore, a violation of section 30.30 is not in itself
a violation of the Constitution or federal law, an element
of a section 1983 claim. See Jackson v. Marshall, No.
04 Civ. 3915 (WHP), 2008 WL 800745, at *4 (S.D.N.Y.
Mar. 25, 2008) (because the limitations of section 30.30
are statutory, not constitutional, “a violation of § 30.30
cannot be the basis of a § 1983 claim”); Gibriano v. Att'y
Gen. of State of New York, 965 F. Supp. 489, 491–92
(S.D.N.Y. 1997) (noting, in the context of a habeas corpus
action, “Section 30.30 is a statutory time in which the
People of New York must be ready for trial; Section
30.30 is not, as such, a statutory embodiment of the
constitutional guarantee to a speedy trial.”). Rather, the
court must determine whether Fobbs has been deprived of
her constitutional rights to a speedy trial.
Whether an accused's constitutional right to a speedy
trial has been violated is a fact-specific inquiry, which
“necessarily compels courts to approach speedy trial cases
on an ad hoc basis.” Barker v. Wingo, 407 U.S. 514,
530 (1972). In Barker, the Supreme Court identified
four factors relevant to a claim under the Speedy Trial

Clause: (1) the length of the delay, (2) the reason for
the delay, (3) the defendant's demand for a speedy trial,
and (4) prejudice to the defendant. Id. No single factor
is dispositive to the finding of a speedy trial violation,
however, and “courts must still engage in a difficult and
sensitive balancing process.” Id. at 533.
It appears that Fobbs contends that the District Attorney
for Bronx County is responsible for violating her right to
a speedy trial. However, the only remaining defendant in
this action is the City of New York, and when making a
specific decision to prosecute, assistant district attorneys
are not City actors. See, e.g., Claudio v. City of New
York, 423 F. Supp. 2d 170, 172 (S.D.N.Y. 2006) (alleged
misconduct by assistant district attorneys cannot give rise
to municipal liability under section 1983 because assistant
district attorneys are state actors); Baez v. Hennessy,
853 F.2d 73, 77 (2d Cir. 1988) (“When prosecuting a
criminal matter, a district attorney in New York State,
acting in a quasi-judicial capacity, represents the State not
the county”); Brown v. City of New York, 60 N.Y.2d
897, 898-99 (1983) (noting that for the purposes of
issue preclusion, the City of New York and the District
Attorney “are separate entities”). Therefore, any claims of
misconduct by prosecutors in the Bronx County District
Attorney's office cannot give rise to municipal liability
against Defendant City of New York.
*4 Moreover, even if Fobbs had named prosecutors
from the Bronx County District Attorney's office in
her complaint, these individuals would be entitled to
immunity. Prosecutors enjoy absolute immunity from
civil liability for actions taken within the scope of their
duty to initiate and pursue a prosecution. See Day v.
Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990) (quoting
Imbler v. Pachtman, 424 U.S. 409, 410 (1976)); Shmueli v.
City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (“It is
by now well established that a state prosecuting attorney
who acted within the scope of his duties in initiating and
pursuing a criminal prosecution ... is immune from a
civil suit for damages under § 1983.”) (internal citations
and quotation marks omitted). The decision to seek
an adjournment so as to procure the availability of an
important trial witness is part of a prosecutor's traditional
function and within the scope of his duty to pursue a
prosecution. Therefore, it is not an action for which an
assistant district attorney can be held civilly liable under
section 1983.

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Accordingly, defendants' motion for summary judgment
is granted as to Fobbs's speedy trial claims.

B. Malicious Prosecution.
“In order to prevail on a § 1983 claim against a state
actor for malicious prosecution, a plaintiff must show a
violation of his rights under the Fourth Amendment ...
and establish the elements of a malicious prosecution
claim under state law.” Fulton v. Robinson, 289 F.3d
188, 195 (2d Cir. 2002) (internal citations omitted).
“To establish a malicious prosecution claim under New
York law, a plaintiff must prove ‘(1) the initiation or
continuation of a criminal proceeding against plaintiff;
(2) termination of the proceeding in plaintiff's favor; (3)
lack of probable cause for commencing the proceeding;
and (4) actual malice as a motivation for defendant's
actions.” ’ Manganiello v. City of New York, 612 F.3d
149, 161 (2d Cir. 2010) (quoting Murphy v. Lynn, 118 F.3d
938, 947 (2d Cir. 1997)). Under section 1983, the plaintiff
must also show “that there was ... a sufficient postarraignment liberty restraint to implicate the plaintiff's
Fourth Amendment rights.” Rohman v. New York City
Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000).
Defendants move for summary judgment on Fobbs's
malicious prosecution claim on the basis that there was
probable cause to prosecute her. “[T]he existence of
probable cause is a complete defense to a claim of
malicious prosecution in New York.” Manganiello, 612
F.3d at 161-62 (quoting Savino v. City of New York, 331
F.3d 63, 72 (2d Cir. 2003)). Plaintiff bears the burden
of plausibly alleging all of the elements of a malicious
prosecution claim, including that there was a “lack of
probable cause for commencing the proceeding.” Id. at
161; see Broughton v. State, 37 N.Y.2d 451, 457 (1975)
(“Where the plaintiff institutes a malicious prosecution
action he must plead the lack of probable cause.”).
Although probable cause to arrest and probable cause to
prosecute are distinct, see Posr v. Court Officer Shield
No. 207, 180 F.3d 409, 417 (2d Cir. 1999), “a malicious
prosecution claim will be defeated by a finding of probable
cause to arrest, unless the plaintiff can demonstrate
mitigating facts to vitiate probable cause which were
first uncovered after the arrest.” Carson v. Lewis, 35
F. Supp. 2d 250, 263 (E.D.N.Y. 1999); see Gaston v.
City of New York, 851 F. Supp. 2d 780, 793 (S.D.N.Y.
2012) (“Where ... probable cause existed for the arrest
itself, a plaintiff pursuing a malicious prosecution claim

must establish that probable cause somehow ‘dissipated’
between the time of arrest and the commencement of the
prosecution.”) (citation omitted); Keith v. City of New
York., 641 Fed.Appx. 63, 67–68 (2d Cir. 2016) (summary
order) (earlier finding that the officers had arguable
probable cause to arrest plaintiff entitled defendants
to qualified immunity on malicious prosecution claim
unless plaintiff could identify some fact that came to
the attention of the police after the arrest but before
the prosecution had been initiated that was sufficient to
“dissipate” the probable cause at the time of the arrest).
*5 “The question of whether or not probable cause
[to arrest] existed may be determinable as a matter of
law if there is no dispute as to the pertinent events and
the knowledge of the officers.” Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996). There is probable cause to
arrest “when the officers have knowledge or reasonably
trustworthy information of facts and circumstances that
are sufficient to warrant a person of reasonable caution
in the belief that the person to be arrested has committed
or is committing a crime.” Id. A court “must examine the
totality of the circumstances of a given arrest” and judge
those circumstances “from the perspective of a reasonable
police officer in light of his training and experience.”
United States v. Delossantos, 536 F.3d 155, 159 (2d Cir.
2008).
As will be shown, the undisputed facts show that
there was probable cause to arrest Fobbs for violations
of N.Y. Penal Law § 155.35 (grand larceny), and §
175.35 (offering a false instrument for filing) based
on the results of Permuy's investigation. Under New
York law, “[a] person is guilty of grand larceny in the
third degree when he or she steals property” valued at
more than three thousand dollars. N.Y. PENAL LAW
§ 155.35. Permuy's investigation revealed that Fobbs
received Section 8 housing vouchers for 4005 Dereimer
Avenue between 2006 and 2009. (Defs.' 56.1 ¶ 6). These
rental subsidies were determined based on “Affidavits
of Income” submitted by Fobbs stating that she lived
only with her children and grandchildren. (Id. ¶¶ 7,
18). However, Fobbs's husband, William Adams, listed
4005 Dereimer Avenue as his residence on W-2 forms
and multiple driver's licenses during the relevant period
of time. (Id. ¶¶ 11, 14-15). Permuy's investigation also
revealed that Adams had worked for the MTA as a fulltime bus driver since 2004 and had earned in excess of
$191,000 between 2005 and 2008. (Id. ¶¶ 8, 23). Had Fobbs

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reported this income, she would not have been eligible
for the Section 8 housing benefits she received between
2006 and 2009. (Id. ¶ 25). Permuy calculated the value of
the housing vouchers Fobbs inappropriately received at
$36,504. (Id. ¶ 24). Considering the information available
to Permuy, it was reasonable for her to conclude that
Adams resided with Fobbs at 4005 Dereimer Avenue
and that Fobbs had deliberately concealed her husband's
income from NYCHA so as to qualify for rental subsidies
she was not entitled to receive. Thus, Permuy had
probable cause to believe that Fobbs had committed
grand larceny in the third degree by stealing over $3,000
in housing vouchers from NYCHA.
There was also probable cause to arrest Fobbs for offering
a false instrument for filing in violation of N.Y. Penal
Law § 175.35. “A person is guilty of offering a false
instrument for filing in the first degree when ... knowing
that a written instrument contains a false statement or
false information, and with intent to defraud the state
or any political subdivision, public authority or public
benefit corporation of the state, he or she offers or presents
it to a public office, public servant, public authority or
public benefit corporation with the knowledge or belief
that it will be filed with, registered or recorded in or
otherwise become a part of the records of such public
office, public servant, public authority or public benefit
corporation.” N.Y. PENAL LAW § 175.35.
The “Affidavits of Income” Fobbs filed with NYCHA,
a public benefit corporation, N.Y. PUB. HOUS. LAW
§ 401; Dingle v. City of New York, 728 F. Supp.
2d 332, 340 n.150 (S.D.N.Y. 2010) (“It is well settled
that the NYCHA is a public corporation.”), qualify as
“written instruments” under the statute. New York Penal
Law § 175.00 defines a “written instrument” as “any
instrument or article, ... containing written or printed
matter or the equivalent thereof, used for the purpose of
reciting, embodying, conveying or recording information,
or constituting a symbol or evidence of value, right,
privilege or identification, which is capable of being
used to the advantage or disadvantage of some person.”
N.Y. PENAL LAW § 175.00. Fobbs's “Affidavits of
Income” contained written or printed matter, were used
to convey information to NYCHA, and were capable of
being used to Fobbs's advantage as they determined her
eligibility for Section 8 housing benefits. In addition, as
was previously discussed, Permuy's investigation revealed
evidence establishing probable cause to believe that Fobbs

had intentionally omitted Adams's income from her
“Affidavits of Income” so as to receive Section 8 rental
subsidies. Therefore, probable cause existed to arrest
Fobbs for offering a false instrument for filing in violation
of New York Penal Law § 175.35.
*6 Finally, it was reasonable for the arresting officers
from the NYPD to rely on the information gathered
by Permuy in making the arrest. Under the collective
knowledge doctrine or fellow officer rule, “an arrest ...
is permissible where the actual arresting ... officer lacks
the specific information to form the basis for probable
cause ... but sufficient information to justify the arrest ...
was known by other law enforcement officials initiating
or involved with the investigation.” United States v.
Colon, 250 F.3d 130, 135 (2d Cir. 2001). The critical
inquiry is whether the “other” law enforcement officer
transmitting the information to the arresting officers
possessed information that amounted to probable cause.
See id. at 136 (“application of the imputed knowledge
doctrine requires that at some point along the line,
some law enforcement official ... involved must possess
sufficient information to permit the conclusion that a[n] ...
arrest is justified.”); Mendoza v. City of Rome, 872
F. Supp. 1110, 1116 (N.D.N.Y. 1994) (noting that if a
warrantless arrest is challenged, “the government has the
burden ‘to establish that the officer or agency imparting
the information in fact possessed the probable cause to
act.’ ”) (quoting People v. Rosario, 78 N.Y.2d 583, 588
(1991)). As discussed above, the information available to
Permuy established probable cause to believe Fobbs had
committed grand larceny in the third degree and offered
a false instrument for filing. Therefore, the NYPD was
entitled to rely on this information in arresting Fobbs on
both offenses.
“In order for probable cause to dissipate, the groundless
nature of the charges must be made apparent by the
discovery of some intervening fact.” Lowth v. Town of
Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996). Fobbs
fails to establish the existence of evidence uncovered
after her arrest that successfully vitiates this probable
cause. Even assuming the prosecutors were aware of her
claim that her husband did not live with her between
2006 and 2009, that assertion alone is not enough to
defeat the defendants' showing of probable cause. Fobbs
also cites the fact that her case was never presented to
a grand jury as evidence of a lack of probable cause
to prosecute her. However, “the prosecutors' failure to

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seek a grand jury indictment does not serve as evidence
against a finding that probable cause existed to arrest
and prosecute Plaintiff; the lack of an indictment merely
obligates Defendants to prove the existence of probable
cause as an affirmative defense to Plaintiff's claims of
false arrest and malicious prosecution.” Drummond v.
Castro, 522 F. Supp. 2d 667, 678 (S.D.N.Y. 2007) (citing
Broughton, 37 N.Y.2d at 458). Here, defendants have
met this burden and have established that probable cause
existed to arrest and prosecute Fobbs.
Fobbs has also failed to present evidence of malice.
“Under New York law, malice does not have to be actual
spite or hatred, but only a showing ‘that the defendant
must have commenced the criminal proceeding due to a
wrong or improper motive, something other than a desire
to see the ends of justice served.’ ” Lowth, 82 F.3d at
573 (quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 502-03
(1978)). A lack of probable cause to prosecute “generally
creates an inference of malice.” Boyd v. City of New
York, 336 F.3d 72, 78 (2d Cir. 2003). Fobbs points to
no evidence of any improper motive on the part of any
individual involved in her prosecution. Her claims that the
prosecutor misrepresented his or her readiness for trial,
refused to stipulate to the entrance of certain records, and
refusal to orally concede a violation of C.P.L § 30.30 do
not constitute evidence of malice. As there was probable
cause to prosecute Fobbs and she has failed to establish
malice on the part of any of the individuals involved in
her criminal case, Fobbs's malicious prosecution claim is
dismissed.

C. Infliction of Extreme Emotional Distress.
In the introduction to Fobbs's complaint she asserts a
claim for “[i]nfliction of extreme emotional distress” under
42 U.S.C. § 1983. (Compl. 1). However, this is the first
and only time such a claim is mentioned in the complaint,
nor does Fobbs address the issue in her opposition to
defendants' motion for summary judgment. Fobbs has
failed to come forward with evidence that would preclude
summary judgment on this claim, see Anderson, 477 U.S.
at 250 (to survive a motion for summary judgment the
non-movant “must set forth specific facts showing that
there is a genuine issue for trial.”), and in any event, the
complaint itself fails to state a plausible claim for relief
as it is entirely devoid of any factual support for a claim
of intentional or negligent infliction of emotional distress.
Defendants' motion for summary judgment is granted

as to Fobbs's claim for infliction of extreme emotional
distress.

D. Section 1983 Conspiracy.
*7 Fobbs alleges that the police officers and prosecutors
involved in her case conspired to harass her in violation
of 42 U.S.C. § 1983. 2 A section 1983 conspiracy claim
must allege “(1) an agreement between two or more
state actors ...; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in
furtherance of that goal causing damages.” Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). “[C]omplaints
containing only conclusory, vague, or general allegations
that the defendants have engaged in a conspiracy to
deprive the plaintiff of his constitutional rights are
properly dismissed; diffuse and expansive allegations
are insufficient, unless amplified by specific instances of
misconduct.” Ciambriello v. Cty. of Nassau, 292 F.3d
307, 325 (2d Cir. 2002) (quoting Dwares v. City of New
York, 985 F.2d 94, 100 (2d Cir. 1993)). Specifically, a
complaint “must provide some factual basis supporting a
meeting of the minds, such that defendants entered into
an agreement, express or tacit, to achieve the unlawful
end.” Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003)
(discussing conspiracies under 42 U.S.C. § 1985) (citation
omitted).
2

In the jurisdiction section of her complaint, Fobbs
also cites to 42 U.S.C. §§ 1985 and 1986. (Compl. ¶ 1).
However, Fobbs does not make specific allegations
under these sections or provide any support for
such allegations. To the extent Fobbs intended
to bring conspiracy claims under section 1985 or
1986, the Court notes that such claims require
allegations of “some racial or perhaps otherwise classbased, invidious discriminatory animus behind the
conspirators' action,” Mian v. Donaldson, Lufkin &
Jenrette Secs. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)
(citation omitted), which Fobbs has not made.

At the outset, Fobbs's conspiracy claim fails because the
Court has already dismissed all of her underlying section
1983 claims. See Singer v. Fulton Cty. Sheriff, 63 F.3d
110, 119 (2d Cir. 1995) (plaintiffs alleging a section 1983
conspiracy claims must also prove an actual violation of
constitutional rights); AK Tournament Play, Inc. v. Town
of Wallkill, No. 09 Civ. 10579 (LAP), 2011 WL 197216,
at *3 (S.D.N.Y. Jan. 19, 2011), aff'd, 444 Fed.Appx. 475
(2d Cir. 2011) (“[A]bsent an underlying constitutional

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violation on which to base a § 1983 conspiracy claim,
a plaintiff's conspiracy claim fails as a matter of law.”)
(citing Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir.
2001)).
In addition, Fobbs's conspiracy claim consists only of
the conclusory allegation that “[o]fficers and prosecutors
of the City of New York acted in a conspiracy to
harass Fobbs” by “arrest[ing], detain[ing], arraign[ing],
and prosecut[ing her] for a period of approximately three
years only to fully have all charges dismissed against her
due to the failure of the People to present witnesses, and
their deliberate misrepresentationas [sic] as to their state of
readiness on the matter.” (Compl. ¶ 23). Fobbs provides
no support for these speculative allegations nor does she
point to any evidence in the record that might reveal the
existence of an agreement to violate her constitutional
rights. The mere fact that multiple people were involved
in the events giving rise to Fobbs's complaint does not
establish a conspiracy. Accordingly, defendants' motion
for summary judgment on the section 1983 conspiracy
claim is granted.

E. Monell Claims.
Finally, defendants move for summary judgment on
Fobbs's claim that the City of New York is liable for the
deprivations of her constitutional rights. A municipality
may not be held liable on section 1983 claims solely
“by application of the doctrine of respondeat superior.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 478
(1986). Instead, in order to establish municipal liability,
a plaintiff must show that: (1) “a particular municipal
action itself violates federal law, or directs an employee
to do so,” Bd. of Cty. Comm'rs of Bryan Cty. v. Brown,
520 U.S. 397, 404 (1997) (emphasis in original), (2)
an “authorized decisionmaker has intentionally deprived
a plaintiff of a federally protected right,” id. at 405,
(3) unconstitutional “practices [are] so persistent and
widespread as to practically have the force of law,”
Connick v. Thompson, 563 U.S. 51, 61 (2011), or (4) a
municipality's failure to train its employees about their
legal duty to avoid violating a citizen's rights amounts
to “deliberate indifference,” id. In any case, “a plaintiff
End of Document

must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a
direct causal link between the municipal action and the
deprivation of federal rights.” Bryan Cty., 520 U.S. at 404.
*8 In her complaint, Fobbs accuses the City of failing
to train “its District [A]ttorneys in the management of a
criminal case, and its investigators on proper investigation
tactics and reporting.” (Compl. ¶ 12). She also alleges
that the City tolerated a custom whereby police officers
arrested individuals without probable cause. (Id. ¶¶
12-13). Finally, she claims that District Attorneys are
municipal “policy makers” and therefore their misconduct
should be imputed to the City for purposes of Monell
liability. (Id. ¶ 12).
However, there can be no municipal liability where there
are no underlying constitutional deprivations. City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986). As
Fobbs has failed to demonstrate that she has suffered
any constitutional injury, her Monell claims against the
City of New York under section 1983 fail as a matter of
law. See Segal v. City of New York, 459 F.3d 207, 219
(2d Cir. 2006) (“Because the district court properly found
no underlying constitutional violation, its decision not to
address the municipal defendants' liability under Monell
was entirely correct.”).
Accordingly, defendants' motion for summary judgment
is granted as to Fobbs's Monell claims.

CONCLUSION
For the foregoing reasons, defendants' motion for
summary judgment (Dkt. 36) is GRANTED. The NYPD
is dismissed as a defendant in this action and all claims
against the City of New York are dismissed with prejudice.
The Clerk shall enter judgment for the defendant.
SO ORDERED.

All Citations
Slip Copy, 2017 WL 2656207
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7

Flores v. Levy, Not Reported in F.Supp.2d (2008)
2008 WL 4394681

2008 WL 4394681
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Ramon FLORES, Plaintiff,
v.
Steve LEVY, Thomas J. Spota, III, Wilma
Peterson, Louis J. Ohlig, Edward Vitale, Douglas
M. O'connor, John A.Bray, Linda Kevins,
John Scarglato, Dana Brown, Defendants.
No. 07-CV-3753 (JFB)(WDW).
|
Sept. 23, 2008.
Attorneys and Law Firms
Ramon Flores, pro se.
Wilma Peterson, pro se.
Assistant Suffolk County Attorney Brian C. Mitchell,
Hauppauge, NY, for defendants Thomas J. Spota III,
Linda Kevins, John Scarglato, Dana Brown and Steve
Levy.
Amy M. Monahan of L'Abbate, Balkan, Colavitta &
Contini LLP, Garden City, NY, for defendants Robert C.
Mitchell, Edward Vitale, and Douglas O'Connor.

MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
*1 Plaintiff Ramon Flores (“plaintiff” or “Flores”),
brings this action against Suffolk County Executive Steve
Levy (“Levy”), Suffolk County District Attorney Thomas
J. Spota III (“Spota”), Assistant District Attorneys
Linda Kevins (“Kevins”), Dana Brown (“Brown”), and
John Scarglato (“Scarglato”) (collectively, “defendant
prosecutors”), Suffolk County Court Judge Louis J. Ohlig
(“Judge Ohlig”) (collectively, “County Defendants”),
Legal Aid Society Attorneys Robert C. Mitchell
(“Mitchell”), Edward “Ed” Vitale (“Vitale”), and Douglas
M. O'Connor (“O'Connor”) (collectively, “Legal Aid
defendants”), John A. Bray, and Wilma Peterson, alleging
malicious prosecution, conspiracy under 42 U.S.C. § 1983,

and deliberate indifference, all arising from defendant's
prosecution.
Defendants moved to dismiss the claims pursuant to
Fed.R.Civ.P. 12(c). For the following reasons, defendants'
motions are granted.

I. BACKGROUND
A. Facts
The following facts are taken from the complaint and are
not findings of fact by the court. The Court assumes these
facts to be true for the purpose of deciding this motion and
construes them in the light most favorable to plaintiff, the
non-moving party.
On February 20, 2003, Flores was arrested in Suffolk
County and charged with one count of criminal assault
in the second degree and one count of criminal contempt
in the first degree. (Compl.¶ 1.) On February 25, 2003,
an unidentified man came to see Flores and told him it
was not advisable that he testify before the grand jury.
(Compl.¶ 3.) The unidentified man stated that he was not
an attorney and that he could not answer any additional
questions. (Compl.¶ 3.) Later that afternoon, plaintiff
appeared before the court and was provided with what he
believed to be Legal Aid counsel. (Compl.¶ 4.)
On March 5, 2003, plaintiff was taken to the Suffolk
County Court and arraigned on indictment 493-03,
which charged plaintiff with: 3 counts of assault in the
second degree, 2 counts of criminal contempt in the first
degree, aggravated contempt, and menacing. (Compl.¶ 4.)
Plaintiff informed the court that he still had no formal
attorney of record. (Compl.¶ 4A.) The Court appointed
a Legal Aid attorney to represent plaintiff. (Compl.¶
4B.) After the arraignment, plaintiff complained to Legal
Aid attorney Douglas O'Connor that plaintiff was not
provided with an attorney at an earlier stage. (Compl.¶
4C.) O'Connor informed plaintiff that a motion to dismiss
would be filed on the grounds that plaintiff was not
afforded an opportunity to testify before the grand jury,
and that plaintiff was not provided counsel at the time the
grand jury was convened. (Compl.¶ 4C.)
On April 3, 2004, plaintiff returned to court and spoke
to his appointed Legal Aid attorney Edward Vitale.

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(Compl.¶ 5.) Plaintiff reviewed the proposed motion to
dismiss. (Compl.¶ 5.) Plaintiff was unhappy that the
motion did not raise the issue of plaintiff's prior lack of
representation. (Compl.¶ 5.) Plaintiff ordered Vitale not
to file the motion. (Compl.¶ 5.) Vitale became angry with
plaintiff and told plaintiff he was “on his own.” (Compl.¶
5.) Plaintiff notified the Court that he was not satisfied
with the motion. (Compl.¶ 5B.) Vitalerequested that he
be removed as counsel for plaintiff. (Compl.¶ 5B.) The
Court granted Vitale's request and appointed John Bray
as counsel. (Compl.¶ 5B.) Further, the court provided
plaintiff with additional time to file his motion to dismiss,
in order to allow his newly appointed counsel to review
the motion. (Compl.5B.)
*2 On April 8, 2003, the court formally appointed Bray
as counsel. The case was adjourned for second call so
that plaintiff and Bray could confer. (Compl.¶ 6.) Plaintiff
asked Bray to amend the motion to dismiss to include
an affidavit, noting that plaintiff was not provided with
counsel at the time of indictment. (Compl. ¶ 6A .) Bray
refused to make the changes and argued with plaintiff.
(Compl.¶ 6A.) No second call occurred and the case was
adjourned until April 28, 2003. Thereafter, plaintiff notes
that Bray refused to assist him and was not responsive
to plaintiff's requests. (Compl.¶ 6B.) On April 18, 2003,
plaintiff filed a motion to dismiss, asserting that he was
not provided representation during a critical stage of
the action. (Compl.¶ 6C.) On April 26, 2004, plaintiff
received legal mail containing an order from Judge Ohlig,
dismissing the indictment based upon a lack of legal
counsel provided to plaintiff. (Compl.¶ 6D.)
On May 4, 2003, plaintiff filed three grievances with
the Tenth Judicial District against O'Connor, Vitale, and
Bray. (Compl. ¶ 7 .) Plaintiff accused the attorneys of
failing to safeguard his rights, lying to him, and failing to
provide competent assistance. (Compl.¶ 7.) In addition,
plaintiff filed a grievance against Judge Ohlig alleging that
he violated plaintiff's constitutional rights. (Compl.¶ 7.)
On May 5, 2003, plaintiff appeared in court to testify
before a second grand jury. (Compl.¶ 8.) Plaintiff refused
to testify before the grand jury because he did not
trust Bray. (Compl.¶ 8.) Plaintiff informed the court
of his objections to Bray's representation. (Compl.¶
8A.) As a result of not testifying, plaintiff claims that
he was unable to provide the mitigating defense of
“Intoxication.” (Compl.¶ 8B.)

On May 19, 2003, plaintiff was arraigned on the
superseding indictment 111-03, which contained the same
7 counts as the original indictment, plus an additional
count of assault in the first degree. (Compl.¶ 9.) Plaintiff
alleges that the complainant testified before the grand
jury that plaintiff had “knocked out her teeth” thereby
implying that there was a loss of actual teeth, when,
in fact, it was “broken bridge work.” (Compl.¶ 9Ai.)
Plaintiff alleges that the prosecution knew this testimony
was false because the medical records in the prosecution's
possession indicated that it was broken bridge work and
not a loss or break of actual teeth. (Compl.¶ 9Aii.) Plaintiff
concludes that the additional first degree assault charge
was added as a punitive tactic designed to silence and stop
plaintiff from “asserting and continuing to petition for
redress” of his constitutional right to counsel. (Compl.¶
9B.)
In August of 2004, plaintiff was tried on the eight
counts contained within the second indictment. (Compl.¶
11.) Plaintiff alleges that, on August 4, 2004, on direct
examination, Wilma Peterson falsely testified that plaintiff
had knocked out her teeth. (Compl.¶ 13.) On August
5, 2004, Brown alluded to the fact that Ms. Peterson
had the “knocked out teeth” repaired with bridge work.
(Compl.¶ 14.) Plaintiff shouted out that the alleged
injury was broken bridge work and not actually teeth.
(Compl.¶ 14A.) The Court then asked Ms. Peterson
whether plaintiff broke her teeth or bridge work. (Compl.¶
14A.) Ms. Peterson responded that it was bridge work
which wasbroken by plaintiff's actions. (Compl.¶ 14A.)
The prosecution allegedly failed to elicit a recantation
from Ms. Peterson as to her testimony that she lost actual
teeth. (Compl.¶ 14B.)
*3 On September 2, 2004, after a trial on the charges in
the indictment before the court without a jury, plaintiff
was convicted of Assault in the Second Degree under
Counts 3 and 4, Menacing in the Second Degree under
Count 5, Aggravated Criminal Contempt under Count 6,
and Criminal Contempt in the First Degree under Count
7. (Compl. at A-2.) Plaintiff was acquitted on the crime of
Assault in the First Degree under Count 1, Assault in the
Second Degree under Count 2, and Criminal Contempt
in the First Degree under Count 8. (Compl. at A-2 and
A-3.) The court noted that the basis for acquittal on the
Assault in the First Degree charge was the prosecution's
failure to establish “serious physical injury,” especially in

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the absence of testimony by a medical expert regarding
the victim's condition. See September 2, 2004 Decision
(Attached to Compl. at A-3) (“While the photographs
introduced into evidence by the People did establish that
the victim did suffer considerable bruises and a knife
wound, these injuries did not rise to the level of serious
under the definition found in the Penal Law.”).

B. Procedural History
On September 5, 2007, plaintiff filed this complaint
alleging malicious prosecution, conspiracy, and deliberate
indifference. On January 31, 2007, the Legal Aid
defendants moved to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). On February
1, 2008, the County Defendants moved to dismiss the
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). On May 2, 2008, pro se defendant Wilma
Peterson filed an answer to the complaint. On May 27,
2008, plaintiff filed an opposition to defendants' motions
to dismiss. On June 2, 2008, the Legal Aid defendants filed
their reply brief. On June 6, 2008, the County defendants
filed their reply brief. On June 22, 2008, Ms. Peterson
moved to dismiss pursuant to Federal Rule of Civil
Procedure 12(b) (6). On September 2, 2008, plaintiff filed
his opposition to Ms. Peterson's motion.

C. Defendant's Motion to Strike
On August 8, 2008, pro se plaintiff filed a motion to strike
Ms. Peterson's motion to dismiss. In particular, plaintiff
objected to the fact that he did not receive copies of
certain exhibits that Peterson attempted to file under seal
with her motion to dismiss, which the Court declined to
accept for filing and returned to the defendant because
they were unnecessary for purposes of deciding the motion
to dismiss and would not be considered by the Court. For
the reasons discussed below, plaintiff's request to strike the
motion on such grounds is frivolous.
On July 22, 2008, in connection with her motion to
dismiss, pro se defendant attempted to file certain exhibits
that consisted of medical records, which she requested
be placed under seal and not provided to plaintiff.
The purpose of these exhibits was to corroborate Ms.
Peterson's description in her affidavit of the injuries, which
she testified resulted from plaintiff's assault on her, and to

explain why she mistakenly described her broken bridge
work as her bottom teeth:
*4 The plaintiff did punch me in my mouth, and, as
I relived my horrific ordeal during my testimony in
front of a second Grand Jury, I mistakenly described
my broken bridge work as my bottom teeth. However,
I did not conspire with anyone to make any misleading
statements. I was only trying to relate the horrible
experience of the night the plaintiff assaulted me.
The medical documents the plaintiff made reference to
which formed the basis of his complaint against me, also
describes the extent of my injuries caused by the brutal
acts he committed against me.
For more than three hours, during the plaintiff's assault
on me, he repeatedly punched me all over my body,
he stabbed me with a meat cleaver and a knife, he
bit me on my body, spat in my face and pulled a
significant amount of my hair out of my head. He
hopped on my broken leg, of which, I was wearing a
cast and stabbed my broken leg with a knife and a meat
cleaver. Throughout the plaintiff's assault on me, he
continuously threatened to cripple me, to blind me, to
paralyze me and to kill me.
When the plaintiff punched me in my mouth, he hit me
so hard that he indeed broke my bridge work in the
bottom of my mouth which also cut a large gash inside
my bottom lip and punctured a hole in my bottom lip.
As to date, I continue to suffer from nerve damage in my
bottom lip. I have a permanent two and a half inch scar
inside my bottom lip and a scar outside of my bottom
lip from the punctured hole.
I have bruises all over my body. I had to see an
optometrist for treatment of trauma to my eye. I have
permanent scars on my forehead, hands and left leg.
I continue to suffer from nerve damage in my left leg
where he stabbed me with a knife. The plaintiff kicked
me, very hard, in my lower back, thus, exacerbating
a prior injury to my lower back that the plaintiff was
aware of before he assaulted me. I now have facet
damage in my lower back. And I am in constant pain.
(Peterson Affidavit, at 2-3) (citations omitted).
On July 22, 2008, the Court issued an order declining
to accept these medical exhibits because the Court, for
purposes of a motion to dismiss under Rule 12(b)(6), must

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accept the factual allegations set forth in the complaint
as true, and draw all reasonable inferences in favor of the
plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518,
521 (2d Cir.2006); Nechis v. Oxford Health Plans, Inc.,
421 F.3d 96, 100 (2d Cir.2005). Thus, “the district court
is normally required to look only to the allegations on the
face of the complaint.” Roth v. Jennings, 489 F.3d 499, 509
(2d Cir.2007). Given this standard, the Court explained in
the July 22 Order:
In the instant case, under this
standard, the Court may not
consider these medical records in
connection with the motion to
dismiss; rather, the Court will
determine whether the allegations
in the complaint state a legal
claim against the defendant. In
other words, consideration of these
medical exhibits is unnecessary for
purposes of deciding the motion.
Therefore, the Court is declining to
accept these exhibits at this time
and the Clerk of the Court shall
return them to plaintiff. Because
Exhibits C-G are not being accepted
or considered by the Court, her
application to have the records
sealed is moot and defendant need
not serve such exhibits on defendant.
*5 (July 22, 2008 Order, at 1-2.)
Although plaintiff contends in his motion to strike that
he cannot reply to defendant's submission without such
exhibits, that argument is frivolous. As noted above, the
Court has assumed his allegations in the complaint to
be true and has not considered these exhibits. In fact,
that is the reason the Court declined to accept them.
Moreover, none of the factual information contained in
Ms. Peterson's affidavit, and recited above, is pertinent
to the legal issues in the motion to dismiss. Specifically,
the primary issues, as discussed infra, based upon the
allegations in the complaint, are (1) whether the private
actor defendants (namely, Ms. Peterson and plaintiff's
court-appointed attorneys) can be sued under Section
1983, and (2) whether the prosecutors have absolute
immunity. The nature and extent of Ms. Peterson's
injuries, as well as any medical records corroborating such
injuries, have no relevance to the consideration of these

legal issues. There is no basis to require Ms. Peterson
to supply these materials to plaintiff, and unnecessarily
reveal private medical information, where the Court
rejected them for filing because they have no relevance
at the motion to dismiss stage in determining whether
plaintiff has a plausible Section 1983 claim. Therefore,
plaintiff's motion to strike the defendant's motion was
denied on August 21, 2008, and he was directed to file his
opposition by September 15, 2008, which plaintiff did do.

D. Standard of Review
In reviewing a motion to dismiss under Rule 12(b)(6),
a court must accept the factual allegations set forth in
the complaint as true, and draw all reasonable inferences
in favor of the plaintiff. See Cleveland v. Caplaw Enter.,
448 F.3d 518, 521 (2d Cir.2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). The plaintiff
must satisfy “a flexible ‘plausibility’ standard, which
obliges a pleader to amplify a claim with some factual
allegations in those contexts where such amplification is
needed to render the claim plausible.” Iqbal v. Hasty, 490
F.3d 143, 157-58 (2d Cir.2007) (emphasis in original).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Bell Atlantic, 127 S.Ct. at
1974. The Court does not, therefore, require “heightened
fact pleading of specifics, but only enough facts to state a
claim to relief that is plausible on its face.” Id.
Moreover, as the Second Circuit recently emphasized in
Sealed Plaintiff v. Sealed Defendant, “[o]n occasions too
numerous to count, we have reminded district courts that
when [a] plaintiff proceeds pro se, ... a court is obliged to
construe his pleadings liberally.... This obligation entails,
at the very least, a permissive application of the rules
governing theform of pleadings.... This is particularly
so when the pro se plaintiff alleges that her civil rights
have been violated. Accordingly, the dismissal of a pro
se claim as insufficiently pleaded is appropriate only
in the most unsustainable of cases.” Sealed Plaintiff v.
Sealed Defendant, No. 06-1590-cv, 2008 U.S.App. LEXIS
17113, at * 15-* 16 (2d Cir. Aug. 12, 2008) (citations and
quotation marks omitted); see also Weixel v. Bd. of Educ.
of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir.2002)
(holding that when plaintiff is appearing pro se, the Court
shall “ ‘construe [his complaint] broadly, and interpret
[it] to raise the strongest arguments that [it] suggests.’ ”)

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(quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000));
accord Sharpe v. Conole, 386 F.3d 483, 484 (2d Cir.2004).
*6 Finally, in connection with a motion to dismiss
under Rule 12(b) (6), as noted above, the Court may
only consider “facts stated in the complaint or documents
attached to the complaint as exhibits or incorporated by
reference.” Nechis, 421 F.3d at 100; accord Kramer v.
Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991). Here,
plaintiff appended certain documents to his complaint
and the Court has confined its review to the face of
the complaint and the documents attached thereto by
plaintiff.

II. PLAINTIFF'S CLAIMS UNDER 42 U.S.C. § 1983
To prevail on a claim under § 1983, a plaintiff must
show: (1) the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws; (2)
by a person acting under the color of state law. 42
U.S.C. § 1983. “Section 1983 itself creates no substantive
rights; it provides only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v.
James, 13 F.3d 515, 519 (2d Cir.1993). “Claims for false
arrest or malicious prosecution, brought under § 1983 to
vindicate the Fourth and Fourteenth Amendment right to
be free from unreasonable seizures, are ‘substantially the
same’ as claims for false arrest or malicious prosecution
under state law.” Jocks v. Tavernier, 316 F.3d 128, 134
(2d Cir.2003) (quoting Weyant v. Okst, 101 F.3d 845, 852
(2d Cir.1996) (false arrest) and citing Conway v. Vill. of
Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984) (malicious
prosecution)).

A. The Legal Aid Attorneys and Ms. Peterson
Plaintiff asserts Section 1983 claims against (1) Ms.
Peterson based upon her allegedly false testimony in
connection with his criminal case; and (2) his Legal Aid
Attorneys for their alleged failure to adequately represent
him in connection with his initial indictment. As discussed
below, the Section 1983 claims against these defendants
fail as a matter of law because (1) none of these defendants
are state actors; and (2) plaintiff's conclusory allegations
of conspiracy between these defendants and state actors
cannot withstand a motion to dismiss. 1

1

As a threshold matter, there is a substantial question
as to whether plaintiff can proceed at all on a
malicious prosecution claim for his acquitted counts
because they were so closely intertwined with his
counts of conviction and are both felonies. The Court
recognizes that, in contrast to false arrest claims, the
Second Circuit has noted that a conviction on one
claim does not necessarily absolve liability under §
1983 for malicious prosecution as to other criminal
charges which were resolved favorably to plaintiff.
See Janetka v. Dabe, 892 F.2d 187, 190 (2d Cir.1989)
(holding that claim of malicious prosecution on
charge of resisting arrest, of which plaintiff was
acquitted, was not barred by his conviction for
disorderly conduct); see also Posr v. Doherty, 944
F.2d 91, 100 (2d Cir.1991) (highlighting “the need
to separately analyze the charges claimed to have
been maliciously prosecuted”). Thus, for the same
reasons in this case, a conviction on assault in the
second degree does not necessarily bar a malicious
prosecution claim on assault in the first degree or
attempted assault in the first degree; rather, the Court
should analyze a number of factors, including the
relative seriousness of the two offenses, “whether
the elements of each charge are different, whether
one charge is a lesser included offense of the other,
and whether the alleged actions were directed at
different people.” Pichardo v. N.Y. Police Dep't.,
No. 98-CV-429 (DLC), 1998 WL 812049, at *3
(S.D.N.Y. Nov. 18, 1998) (citing Janetka, 892 F.2d
at 190); see also Ostroski v. Town of Southold, 443
F.Supp.2d 325, 335-40 (E.D.N.Y.2006) (discussing
factors). Analyzing the various factors in the instant
case-including that both crimes are felonies (and
thus are both serious crimes), and arose out of the
same incident-the Court concludes that the existence
of probable cause as to the counts of conviction
should preclude a malicious prosecution claim on
the acquitted counts. In fact, as the judge who
presided over the bench trial noted, the basis for the
acquittal on the assault in the first degree (despite
the conviction for assault in the second degree)
was the prosecution's failure to demonstrate serious
injury. Thus, the acquitted charges are “so closely
intertwined with the offense of conviction that there
is no reasonable basis to conclude that the [dismissal
of] these charges is sufficiently distinct to support a
claim of malicious prosecution.” Pichardo, 1998 WL
812049, at *4 (finding conviction on misdemeanor
charge precluded malicious prosecution on felony
assault count arising out of same incident). In any
event, the Court finds that there are numerous other

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grounds for dismissal of the case, discussed in detail
infra.

(1) State Action Requirement
An individual acts under color of state law when he or she
exercises power “possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the
authority of state law.” Polk County v. Dodson, 454 U.S.
312, 317-38 (1981) (quoting United States v. Classic, 313
U.S. 299 (1941)). Thus, a deprivation of a federal statutory
or Constitutional right is actionable under Section 1983
when such deprivation is caused “by the exercise of some
right or privilege created by the State ... or by a person
for whom the State is responsible.” Lugar v. Edmondson
Oil Co., 457 U.S. 922, 937 (1982). Under this standard,
“generally, a public employee acts under color of state law
while acting in his official capacity or while exercising his
responsibilities pursuant to state law.” West, 487 U.S. at
50.
*7 In the instant case, it is clear from the allegations
of the complaint that neither Ms. Peterson who was
the alleged victim of the assault that was the subject of
plaintiff's criminal trial, nor the Legal Aid Attorneys who
represented plaintiff in the pre-trial stage, are state actors.
With respect to his Legal Aid Attorneys, it is axiomatic
that a “public defender does not act under color of state
law when performing a lawyer's traditional functions as
counsel to a defendant in a criminal proceeding.” Polk
County v. Dodson, 454 U.S. at 325; see also Schnabel v.
Abramson, 232 F.3d 83, 87 (2d Cir.2000) ( “[A] legal aid
society ordinarily is not a state actor amenable to suit
under § 1983.”) (citations omitted); Rodriguez v. Weprin,
116 F.3d 62, 65-66 (2d Cir.1997) (affirming dismissal
of Section 1983 claim against court-appointed appellate
attorney for alleged involvement in denial of speedy
appeal and noting that “it is well-established that courtappointed attorneys performing a lawyer's traditional
functions as counsel to defendant do not act ‘under color
of state law’ and therefore are not subject to suit under
42 U.S.C. § 1983”) (collecting cases); Housand v. Heiman,
594 F.2d 923, 924-25 (2d Cir.1979) (“[P]ublic defenders
or court-appointed defense attorneys do not ‘act under
color of law.’ ”); Sanchez v. Gazzillo, No. 00-CV-6405 (JS)
(MLO), 2001 U.S. Dist. LEXIS 7786, at * 17 (E.D.N.Y.
June 5, 2001) (dismissing Section 1983 claim against
plaintiff's Legal Aidattorneys). Similarly, with respect
to Ms. Peterson, the fact that plaintiff alleges that she

perjured herself as a witness at his trial does not transform
her into a state actor. See, e.g., Elmasri v. England, 111
F.Supp.2d 212, 221 (E.D.N.Y.2000) (“[T]he mere fact
that an individual testifies at a court proceeding does not
render that person a state actor.”) (citing Briscoe, 460
U.S. at 329-30); see also Mitchell v. Mid-Erie Counseling
Service, No. 05-CV6169 CJS(P), 2005 WL 1579810, at *3
(W.D.N.Y. June 29, 2005) (“ ‘A witness testifying in a state
court proceeding-even if [she] is a state employee who has
perjured [herself]-has not acted under color of state law
for purposes of § 1983.’ ”) (quoting McArthur v. Bell, 788
F.Supp. 706, 710 (E.D .N.Y.1992)).
Although these individuals are clearly not state actors, the
Court recognizes that a private actor can be considered
as acting under the color of state law for purposes
of Section 1983 if the private actor was “ ‘a willful
participant in joint activity with the State or its agents.’
“ See Ciambriello, 292 F.3d at 324 (quoting Adickes v.
S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598,
26 L.Ed.2d 142 (1970)) (citation omitted). This potential
liability also applies to a court-appointed attorney where
the attorney “conspires with a state official to violate
the plaintiff's constitutional rights.” Fisk v. Letterman,
401 F.Supp.2d 362, 378 (S.D.N.Y.2005). Thus, the Court
will next examine plaintiff's conspiracy claim to determine
whether the allegations are sufficient to survive a motion
to dismiss.

(2) Conspiracy Pursuant to § 1983
*8 The plaintiff alleges that “all of the defendants ...
acted in collusion with the Suffolk County District
Attorney's Office and thereby UNDER COLOR OF
STATE LAW to violate my Federal and State 4th, 5th,
6th and 14th Amendment Constitutional Rights of The
Accused.” Specifically plaintiff alleges that the Legal Aid
defendants conspired with the County Defendants, Bray,
and Ms. Peterson to: (1) prevent him from testifying
before a grand jury;
(2) deny him effective assistance of counsel; and charge
him with additional, higher counts.
The mere use of the term “conspiracy” or “collusion” does
not instantly transform a private actor into a state actor
for purposes of Section 1983 and is clearly insufficient
to satisfy Rule 12(b) (6) in connection with a Section

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1983 conspiracy claim. See Ciambriello, 292 F.3d at 324
(“A merely conclusory allegation that a private entity
acted in concert with a state actor does not suffice
to state a § 1983 claim against the private entity.”).
Instead, “[i]n order to survive a motion to dismiss on
a § 1983 conspiracy claim, the plaintiff must allege (1)
an agreement between two or more state actors, (2)
concerted acts to inflict an unconstitutional injury, and
(3) an overt act in furtherance of the goal.” Carmody
v. City of New York, No. 05-CV-8084 (HB), 2006 U.S.
Dist. LEXIS 25308, at *16 (S.D.N.Y. May 11, 2006)
(citing Ciambriello v. County of Nassau, 292 F.3d 307,
324-35 (2d Cir.2002)). Vague and conclusory allegations
that defendants have engaged in a conspiracy must be
dismissed. See Ciambriello, 292 F.3d at 325 (dismissing
conspiracy allegations where they were found “strictly
conclusory”); see also Walker v. Jastremski, 430 F.3d
560, 564 n. 5 (2d Cir.2005) (“[C]onclusory or general
allegations are insufficient to state a claim for conspiracy
under § 1983.”) (citing Ciambriello); Sommer v. Dixon, 709
F.2d 173, 175 (2d Cir.1983) (“A complaint containing only
conclusory, vague, or general allegations of conspiracy to
deprive a person of constitutional rights cannot withstand
a motion to dismiss.”); Green v. Bartek, No. 3:05CV-1851, 2007 WL 4322780, at *3 (D.Conn. Dec. 7, 2007)
(“The Second Circuit has consistently held that a claim
of conspiracy to violate civil rights requires more than
general allegations.”).
The need to guard against the use of conclusory
allegations of conspiracy in the context of Section 1983
lawsuits against private actors is particularly compelling.
If a plaintiff could overcome a motion to dismiss simply by
alleging in a conclusory fashion a “conspiracy” between
private actors and state actors, these private actorsincluding lawyers and witnesses-would be subjected to the
substantial cost and disruption incurred by litigants in the
discovery phase of these lawsuits, without any indication
whatsoever that the plaintiff has a “plausible” conspiracy
claim. As the Second Circuit has emphasized, these
conspiracy claims are “so easily made and can precipitate
such protracted proceedings with such disruption of
governmental functions” that “detailed fact pleading is
required to withstand a motion to dismiss” them. Angola
v. Civiletti, 666 F.2d 1, 4 (2d Cir.1981).
*9 As discussed below, the complaint does not
contain any specific allegations supporting a “plausible”
conspiracy claim involving these private actors and

the County Defendants. Pro se plaintiff's complaint is
nothing more than a compendium of conclusory, vague,
and general allegations of a conspiracy to deprive him
of constitutional rights. “Diffuse expansive allegations
are insufficient, unless amplified by specific instances
of misconduct.” Ostrer v. Aronwald, 567 F.2d 55, 533
(2d Cir.1997). Of course, the Court recognizes that
“[a plaintiff is not required to list the place and date
of defendant[']s meetings and the summary of their
conversations when he pleads conspiracy, ... but the
pleadings must present facts tending to show agreement
and concerted action.” Fisk v. Letterman, 401 F.Supp.2d
362, 376 (S.D.N.Y.2005) (report and recommendation),
accepted by, in part, rejected by, in part, Fisk v.
Letterman, 401 F.Supp.2d 362 (S.D.N.Y.2005) (citations
and quotations omitted). As the Supreme Court recently
articulated in Bell Atlantic Corp. v. Twombly, although
a plaintiff does not need to provide detailed factual
allegations, the allegations in the complaint must be
“enough to raise a right to relief above the speculative
level.” 127 S.Ct. at 1965.

i. Wilma Peterson
Plaintiff alleges that Ms. Peterson participated in the
malicious prosecution against him by providing false
testimony to the second grand jury and at trial that
plaintiff had broke her bottom teeth. Moreover, plaintiff
alleges that the defendant prosecutors were complicit in
that perjury because the defendant prosecutors failed
to correct the testimony. Nowhere in the complaint
does plaintiff specifically assert that an explicit, or even
implicit, agreement existed between Ms. Peterson and
the defendant prosecutors to enter into a conspiracy.
See Ciambriello, 292 F.3d at 324 (dismissing Section
1983 conspiracy claim because “[a]bsent from [plaintiff's]
complaint are any factual allegations suggesting that [the
private actor defendant] conspired with the County”).
Plaintiff simply relies on vague and conclusory allegations
to imply that Ms. Peterson conspired with the defendant
prosecutors. The mere allegation that Ms. Peterson
committed perjury regarding damage to her teeth,
and the prosecutor's alleged failure to correct such
testimony, is insufficient to support a conspiracy claim.
See, e.g ., Rzayeva v. United States, 492 F.Supp.2d
60 (D.Conn.2007) (“Plaintiffs' vague and conclusory
allegations against private ‘conspirators' are entirely
unclear, unsupported by facts, and insufficient to

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substantiate their claims.”); Fiske, 401 F.Supp.2d at
377 (“Communications between a private and a state
actor, without factssupporting a concerted effort or plan
between the parties, are insufficient to make the private
party a state actor.”); see also Marion v. Groh, 954 F.Supp.
39, 43 (D.Conn.1997) (dismissing Section 1983 claim
against a private citizen who testified against plaintiff
at criminal trial where plaintiff made only generalized
conspiracy allegations). Accordingly, plaintiff's claims of
conspiracy regarding Ms. Peterson must be dismissed.

ii. Legal Aid Defendants
*10 Plaintiff alleges that the Legal Aid defendants
engaged in numerous conspiracies with the other
defendants which include: (1) denying plaintiff his right
to counsel; (2) preventing plaintiff from testifying before
the grand jury; (3) allowing the defendant prosecutors to
“lift” the indictment into the county court; and (4) adding
the additional charge of assault in the first degree to the
indictment.
Viewing the allegations in the light most favorable to
plaintiff, the Court finds that plaintiff has not alleged a
conspiracy involving the Legal Aid defendants and any
other named party. Plaintiff has failed to articulate any
allegations that would suggest that these alleged failures
in performance by his attorneys, even if accepted as
true, could plausibly support a claim that the Legal Aid
defendants were part of a conspiracy with the County
defendants. In fact, plaintiff failed to allege that Legal Aid
defendants entered into an explicit or implicit agreement
with any other named party to this lawsuit. Moreover,
as the Second Circuit has noted, generalized allegations
of conspiracy “ring especially hollow” where, as here,
the parties alleged to be part of the same conspiracy
have an “adversarial relationship.” Ciambriello, 292 F.3d
at 324. Given the complete absence of anything other
than conclusory allegations of conspiracy, the Section
1983 claims against his Legal Aid attorneys cannot
survive a motion to dismiss. See also Green v. Bartek,
No. 3:05CV1851 (SRU), 2007 WL 4322780, at *3
(D.Conn. Dec. 7, 2007) (dismissing Section 1983 claim
against plaintiff's appointed attorney in Family Court
where, “[a]lthough [plaintiff] includes several statements
regarding an alleged conspiracy, he includes no facts
to support this claim”); Williams v. Jurow, No. 05
Civ. 6949(DAB), 2007 WL 5463418, at *12 (S.D.N.Y.

June 29, 2007) (“Since plaintiff has alleged no facts
that would, even if accepted as true, establish that
the Legal Aid Defendants' conduct constituted state
action, the constitutional claims against them should be
dismissed.”) (report and recommendation); Brewster v.
Nassau County, 349 F.Supp.2d 540, 547 (E.D.N.Y.2004)
(dismissing Section 1983 claim against Legal Aid Society
where plaintiff alleged in a conclusory fashion that
Legal Aid waived his rights and failed to adequately
represent him in order to “benefit themselves and/
or District Attorney,” but did “not actually allege[ ]
any facts indicating an agreement to act in concert
to harm him”); Hom v. Brennan, 304 F.Supp.2d 374,
378-79 (E.D.N.Y.2004) (dismissing Section 1983 claim
against supervising attorney with the Nassau-Suffolk Law
Services because “plaintiff fails to allege with particularity
what the alleged conspiracy is, the purpose of the
conspiracy, who was involved in the conspiracy, the
existence of an act in furtherance of the conspiracy,
or that he was injured as a result of the conspiracy”);
Braxton v. Brown, No. 96 CV 187, 1997 WL 43525,
at *3 (E.D.N.Y. Jan. 28, 1997) (“Nothwithstanding the
latitude afforded a pro se complaint, plaintiff fails to
allege any facts supporting an inference that the Defense
Attorney defendants colluded with the District Attorney
defendants. While plaintiff's allegations might support a
state law malpractice action against his former defense
attorneys, they do not support a federal court's exercise of
jurisdiction under Section 1983.”).
*11 In sum, having failed to sufficiently allege a
conspiracy cause of action between Ms. Peterson, the
Legal Aid defendants, and any state actor, the Court
dismisses the Section 1983 claim against Ms. Peterson and
the Legal Aid defendants. 2
2

Defendant John A. Bray is the court-appointed
attorney who replaced the Legal Aid defendants in
defending plaintiff in his criminal case. (Compl.¶
6.) Although defendant Bray has never appeared in
this action (and it is unclear whether he was ever
served), the Court dismisses the claims against him
sua sponte because, like the Legal Aid defendants,
he is not a state actor. Plaintiff has failed to state a
cause of action under Section 1983 against him and
plaintiff's claim against Bray, like the other claims in
this case, is frivolous. See, e.g., Liner v. Goord, 196
F.3d 132, (2d Cir.1999) (holding that district court
is authorized to “dismiss the complaint sua sponte
if, among other things, the complaint is ‘frivolous,

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malicious, or fails to states [sic] a claim upon which
relief may be granted’ ”) (quoting 28 U.S.C. § 1915(a)
& (b)(1)).

(3) Other Defects in Claims
against the Legal Aid Defendants
In addition to the legal defects discussed in detail above,
there are a number of other grounds set forth by the Legal
Aid defendants which independently require dismissal of
plaintiff's claims against them as a matter of law.
First, although plaintiff claims that his constitutional
rights were violated by the Legal Aid defendants because
they failed to ensure his right to appear before the
grand jury and testify, it is axiomatic that there is no
constitutional right to testify before the grand jury. See
Burwell v. Superintendent of Fishkill Correctional Facility,
No. 06 Civ. 787(JFK), 2008 WL 2704319, at *8 (S.D.N.Y.
July 10, 2008) (“[T]here is no federal constitutional right
to testify before the grand jury. In fact, there is no federal
right to a grand jury in state criminal prosecutions.”);
Affser v. Murray, No. 04 CV 2715, 2008 WL 2909367, at
*7 (E.D.N.Y. July 28, 2008) (“[C]ounsel's alleged failure to
secure petitioner's presence before the grand jury does not
constitute ineffective assistance”) (collecting cases). Thus,
any claimed deprivation of such a right is not actionable
under Section 1983. See Frankos v. LaVallee, 535 F.2d
1346, 1348 n. 3 (2d Cir.1976) (“The complaint alleges
that appellees successfully conspired to prevent appellant
from testifying at a grand jury investigation of the prison
stabbing and that attorney Wylie was incompetent in
handling plaintiff's request to testify there. Since one
must allege deprivation of a constitutional right under 42
U.S.C. § 1983 and 42 U.S.C. § 1985, and there is no claim
that there is a constitutional right to testify at a grand jury
proceeding, the judgment of dismissal of these claims for
relief is affirmed for lack of subject matter jurisdiction.”).
Second, plaintiff suffered no injury from these alleged
deprivations because, as set forth in plaintiff's complaint,
the court dismissed the initial indictment and a
superseding indictment was presented to a second grand
jury during which plaintiff had the opportunity to testify,
but refused to do so. (Compl.¶¶ 6(D), 8.) To the extent
that plaintiff complains about the charges presented to the
second grand jury or about his criminal trial, it is clear that
he has no plausible claim for any such allegations against
the Legal Aid defendants because they were replaced as

his attorneys prior to the presentation of the superseding
indictment to the second grand jury.
Third, plaintiff was convicted of all of the charges that
were the subject of the initial indictment, which he
claimed was the result of ineffective and unconstitutional
conduct by the Legal Aid defendants. According to the
complaint, the additional higher count of assault in the
first degree was only contained in the second grand jury,
at a time when he was no longer represented by the Legal
Aid defendants. (Compl.¶ 9.) Therefore, any malicious
prosecution claims, including any malicious prosecution
conspiracy, against the Legal Aid defendants related to
the charges in the first indictment are barred by Supreme
Court's decision in Heck v. Humphrey, 512 U.S. 477
(1994). 3
3

The Legal Aid defendants also note that the plaintiff
appealed his conviction and raised all of the identical
arguments he now asserts in this civil lawsuit
regarding alleged defects in the indictment, malicious
prosecution, and ineffective assistance of counsel. The
Appellate Division, Second Department denied his
appeal and found his arguments were without merit.
See People v. Flores, 40 A.D. 876, 878 (2d Dep't 2007)
(“The defendant's remaining contentions, including
those raised in his supplemental pro se brief, that
the indictment was defective, that he was maliciously
prosecuted, and that he was deprived of the effective
assistance of counsel, are without merit.”). The Court
of Appeals also denied Flores leave to appeal. See
People v. Flores, 9 N.Y .3d 875 (2007).

*12 Finally, even assuming arguendo that some Section
1983 claim could exist based solely on the alleged
ineffective conduct by the Legal Aid defendants, it would
be time-barred. With respect to Section 1983 and 1985
claims, federal courts generally apply the forum state's
statute of limitations for personal injury claims, which
is three years in the State of New York. Pearl v. City
of Long Beach, 296 F.3d 76, 79 (2d Cir.2002) ( Section
1983), cert. denied, 538 U.S. 922 (2003); Paige v. Police
Dep't of Schenectady, 264 F.3d 197, 199 n. 2 (2d Cir.2001)
(Section 1985). Here, as set forth in the complaint, the
Legal Aid defendants ceased representing plaintiff in April
2003. (Compl.¶ 6(D).) Because plaintiff commenced this
action on September 5, 2007, more than three years after
Legal Aid represented him, the claims against the Legal
Aid defendants would be untimely even assuming they

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existed, which they do not for the other reasons outlined
by the Court.
In sum, plaintiff does not have a plausible Section 1983
claim against the private actors-defendants Peterson,
Mitchell, Vitale, O'Connor, and Bray-and such claims are
dismissed as a matter of law under Rule 12(b)(6).

B. Absolute Immunity
Plaintiff sues the various County Defendants-DA Spota
and ADAs Kevins, Scarglato, and Brown-for allegedly
improper conduct (1) in connection with his indictment in
the grand jury by conspiring to deny him representation
by counsel and to prevent him from testifying before
the grand jury; and (2) in connection with his trial by
eliciting perjured testimony from witnesses, including Ms.
Peterson, and not correcting such testimony. Plaintiff
asserts claims against these defendants for malicious
prosecution, conspiracy to maliciously prosecute, and
“deliberate indifference” to the fact that his rights were
being violated in the above-referenced manners.
Defendants argue that the Court should dismiss plaintiff's
claims against DA Spota and ADAs Kevins, Scarglato,
and Brown on the grounds of absolute immunity. As
set forth below, the Court agrees. It is abundantly clear
from a review of the conduct allegedly attributed to these
prosecutors that all of the conduct was undertaken in
their roles as Assistant District Attorneys (or in Mr.
Spota's instance, as District Attorney) during the active
prosecution of plaintiff and, thus, they are absolutely
immunefrom a civil suit for damages under Section 1983.
“It is by now well established that a state prosecuting
attorney who acted within the scope of his duties in
initiating and pursuing a criminal prosecution is immune
from a civil suit for damages under § 1983.” Shmueli
v. City of New York, 424 F.3d 231, 236 (2d Cir.2005)
(quoting Imbler v. Pachtman, 424 U.S. 409, 410, 431
(1976) (citation and quotation marks omitted)). “[D]istrict
courts are encouraged to determine the availability of
an absolute immunity defense at the earliest appropriate
stage, and preferably before discovery.... This is because
‘[a]n absolute immunity defeats a suit at the outset, so
long as the official's actions were within the scope of the
immunity.’ “ Deronette v. City of New York, No. 05CV-5275, 2007 U.S. Dist. LEXIS 21766, at * 12 (E.D.N.Y.
Mar. 27, 2007) (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985) and quoting Imbler, 424 U.S. at 419 n. 13).

However, the Second Circuit has held that in the context
of a motion to dismiss under Rule 12(b)(6), “when it
may not be gleaned from the complaint whether the
conduct objected to was performed by the prosecutor in
an advocacy or an investigatory role, the availability of
absolute immunity from claims based on such conduct
cannot be decided as a matter of law on a motion to
dismiss.” Hill v. City of New York, 45 F.3d 653, 663 (2d
Cir.1995).
*13 “In determining whether absolute immunity obtains,
we apply a ‘functional approach,’ looking to the function
being performed rather than to the office or identity of
the defendant.” Hill, 45 F.3d at 660 (quoting Buckley v.
Fitzsimmons, 509 U.S. 259, 269 (1993)). In applying this
functional approach, the Second Circuit has held that
prosecutors are entitled to absolute immunity for conduct
“ ‘intimately associated with the judicial phase of the
criminal process.’ “ Fielding v. Tollaksen, No. 06-5393cv, 2007 U.S.App. LEXIS 28939, at *3-*4 (2d Cir. Dec.
12, 2007) (quoting Imbler, 424 U.S. at 430); Hill, 45 F.3d
at 661 (same). In particular, “[s]uch immunity ... extends
to acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which
occur in the course of his role as an advocate for the
State.” Smith v. Bodak, 147 F.3d 91, 94 (2d Cir.1998)
(citation and quotation marks omitted). On the other
hand, “[w]hen a district attorney functions outside his
or her role as an advocate for the People, the shield of
immunity is absent. Immunity does not protect those acts
a prosecutor performs in administration or investigation
not undertaken in preparation for judicial proceedings.”
Hill, 45 F.3d at 661; see also Carbajal v. County of
Nassau, 271 F.Supp.2d 415, 421 (E.D.N.Y.2003) (“[W]hen
a prosecutor supervises, conducts, or assists in the
investigation of a crime, or gives advice as to the existence
of probable cause to make a warrantless arrest-that is,
when he performs functions normally associated with a
police investigation-he loses his absolute protection from
liability.”).
Once a court determines that a prosecutor was acting
as an advocate, “a defendant's motivation in performing
such advocative functions as deciding to prosecute is
irrelevant to the applicability of absolute immunity.”
Shmueli, 424 F.3d at 237 (quoting Bernard, 356 F.3d at
502); see also Kleinman v. Multnomah Cty., No. 03-1723KI, 2004 U.S. Dist. LEXIS 21466, at * 18 (D.Or. Oct.
15, 2004) (“The Ninth Circuit has interpreted Imbler to

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support absolute prosecutorial immunity even when a
plaintiff alleges that the prosecutor went forward with a
prosecution he believed not to be supported by probable
cause.”).
Plaintiff claims that defendant prosecutors maliciously
commenced a criminal prosecution against plaintiff
“through fraud and perjury” and “without probable
cause to believe [he] committed the crime.” See Compl.
at 15. Specifically, plaintiff claims that the defendant
prosecutors filed a second indictment with the additional
charge of first degree assault, as punishment for plaintiff's
protestations that he was denied his right to counsel.
See id. Plaintiff further alleges that this additional charge
was added as retribution due to plaintiff's grievances
filed against the defendant prosecutors and Judge Ohlig.
See id. In addition, plaintiff alleges that the defendant
prosecutors knowingly elicited false testimony from Ms.
Peterson in order to establish the necessary elements for
first degree assault. (See Compl. at 16.)
*14 “It is settled law that when a prosecutor presents
evidence to a grand jury and at trial he is acting as an
advocate and entitled to absolute immunity on claims that
the evidence presented was false.” Urrego v. U.S., No. 00
CV 1203, 2005 WL 1263291, at *2 (E.D.N.Y. May 27,
2005) (finding that a prosecutor is entitled to absolute
immunity where he was alleged to have presented false
evidence in order to obtain a superceding indictment)
(citing Buckley, 509 U .S. 260; Hill, 45 F.3d at 662;
Bernard v. County of Suffolk, 356 F.3d 495, 505 (2d
Cir.2003)); see also Storck v. Suffolk County Dep't of
Social Servs., 62 F.Supp.2d 927, 943 (E.D.N.Y.1999)
(“A prosecutor is also absolutely immune from charges
alleging the withholding of exculpatory evidence from a
grand jury and suppressing Brady material. An allegation
of conspiracy to perform the foregoing acts does not
change the conclusion that the acts are entitled to absolute
immunity.”) (citations omitted). “[A]bsolute immunity
protects a prosecutor from § 1983 liability for virtually all
acts, regardless of motivation, associated with his function
as an advocate. This would even include ... allegedly
conspiring to present false evidence at a criminal trial.”
Dory v. Ryan, 999 F.2d 679 (2d Cir.1993), as modified at
25 F.3d 81, 83 (2d Cir.1994). In Tellier v. Petrillo, plaintiff
alleged that the United States attorneys had “formed a
conspiracy to fabricate a new charge, not contained in the
original indictment” and had “conspired to present the
fabricated evidence to a grand jury in order to obtain a

superceding indictment.” 133 F.3d 907 (2d Cir.1997.) The
Second Circuit affirmed the dismissal of the complaint,
noting that the presentation of a superceding indictment
was protected by absolute immunity. Id. Further, the
Second Circuit has specifically held that a prosecutor's
determination of which offenses to charge also is protected
by absolute immunity. Ying Jing Gan v. City of New York,
996 F.2d 522, 530 (2d Cir.1993).
It is clear that defendant prosecutors' decision to seek
a second indictment with the additional charge of first
degree assault, as well as any alleged attempt to elicit
false testimony from a witness, would be protected by
absolute immunity. Similarly, defendants are absolutely
immune from suit for any of the wrongful acts alleged in
the complaint by plaintiff related to his claim that they
presented perjured testimony at trial. Finally, any claim
that the prosecutors deprived plaintiff of his right to testify
before the first grand jury is also within the ambit of
absolute immunity. 4 See, e.g., Phillips v. Eppolito, No. 02
Civ. 5662(DLC), 2004 WL 540481, at *2 (S.D.N.Y. March
17, 2004) (“The Complaint asserts that [the ADA] failed
to permit [plaintiff] to testify in front of the Grand Jury.
The act of failing to permit [plaintiff] to testify before a
Grand Jury falls within the scope of activities protected
by the doctrine of absolute immunity. Therefore, the
claim of malicious prosecution against [the ADA] must
be dismissed.”); Braxton v. Brown, No. 96 CV 187, 1997
WL 43525, at *2 (E.D.N.Y. Jan. 28, 1997) (“Plaintiff's
complaint against the District Attorney defendants-that
they denied him the right to testify before the Grand Juryis based on their presentation of a case before the Grand
Jury. It therefore falls within the scope of the prosecutors'
absolute immunity.”).
4

To the extent that plaintiff is attempting to argue
that absolute immunity should not apply because of
some conspiracy between the County Defendants and
private actors (such as the Legal Aid defendants and
Ms. Peterson), that claim also fails for the reasons
discussed in great detail in connection with the
Legal Aid defendants and Ms. Peterson. Specifically,
plaintiff alleges nothing more than conclusory
allegations of conspiracy which are insufficient to
survive a motion to dismiss.

*15 Accordingly, plaintiff's claims against the defendants
Spota, Kevins, Scarglato, and Brown are dismissed based
on the doctrine of absolute immunity. 5

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5

Plaintiff also alleges that Judge Ohlig conspired
with the Legal Aid defendants and the defendant
prosecutors to maliciously prosecute the plaintiff.
Although Judge Ohlig has failed to appear in the
case, the Court, sua sponte, finds that Judge Ohlig
is entitled to absolute immunity. “A judge defending
against a section 1983 suit is entitled to absolute
immunity from damages for actions performed in
his judicial capacity.” Fields v. Soloff, 920 F.2d
1114, 1119 (2d Cir.1990). Where a judge is acting
in a judicial capacity, no liability exists even if the
judicial action “was in error, was done maliciously,
or was in excess of his authority; rather, he will be
subject to liability only when he has acted in the
clear absence of all jurisdiction.” Stump v. Sparkman,
435 U.S. 349, 356-57 (1978). “[F]undamentally, since
absolute immunity spares the official any scrutiny
of his motives, an allegation that an act was done
pursuant to a conspiracy has no greater effect than
an allegation that it was done in bad faith or with
malice, neither of which defeats a claim of absolute
immunity.” Dorman v. Higgins, 821 F.2d 133, 139
(2d Cir.1987). Plaintiff alleges that the judge failed to
rule on plaintiff's motion and back-dated his ruling.
Any action taken by Judge Ohlig in connection with
rendering a decision or acting upon plaintiff's motion
is clearly within the judicial capacity of the court.
Accordingly, Judge Ohlig is absolutely immune from
suit and plaintiff's claims against Judge Ohlig are
dismissed.

C. Deliberate Indifference
Defendants also move to dismiss the claim for “deliberate
indifference” to the alleged violations of his constitutional
rights. As a threshold matter, any attempt to assert such
a claim against the District Attorney, or the Assistant
District Attorneys or Judge Ohlig, must be dismissed
based on the doctrine of absolute immunity as described
supra. Similarly, any attempt to bring such a claim against
the private actor defendants-Ms. Peterson, the Legal Aid
defendants, or court-appointed attorney Bray-must be
dismissed for the reasons outlined supra.
With respect to the only remaining defendant, County
Executive Steve Levy, there is simply no plausible cause
of action under Section 1983. To the extent plaintiff is
attempting to sue Mr. Levy in his individual capacity,
it is beyond cavil that the County Executive cannot be
held responsible for the actions of the independentlyelected District Attorney's decision to indict and prosecute

a defendant. Similarly, to the extent that Mr. Levy is being
sued in his official capacity in an attempt to allege some
type of municipal liability against the County, that claim
must also fail as a matter of law. A district attorney in
New York State, when prosecuting a criminal matter, acts
in a quasi-judicial manner and represents the State, not
the County. Thus, a county cannot establish policy in
connection with how a district attorney should prosecute
New York State penal laws. Therefore, no municipal
liability can arise from the District Attorney's decision to
prosecute. In short, plaintiff has failed to articulate any
plausible claim for municipal liability given his allegations
in the complaint. Accordingly, the claim against the
County Executive and any municipal liability claim must
be dismissed as a matter of law.

D. Leave to Replead
Although plaintiff has not requested leave to amend or
replead his complaint, the Court has considered whether
plaintiff should be given an opportunity to replead. The
Second Circuit has emphasized that
A pro se complaint is to be read
liberally. Certainly the court should
not dismiss without granting leave to
amend at least once when a liberal
reading of the complaint gives any
indication that a valid claim might
be stated.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000)
(quotations and citations omitted). Under Rule 15(a)
of the Federal Rules of Civil Procedure, “leave [to
amend] shall be freely given when justice so requires.”
Fed.R.Civ.P. 15(a). However, even under this liberal
standard, this Court finds that any attempt to amend
the pleading in this case would be futile. 6 As discussed
in detail supra, it is clear from the complaint (as well
as plaintiff's detailed submissions in opposition to the
motion) that he does not have any possibility of asserting
a plausible Section 1983 claim. This lawsuit is a blatant
and frivolous attempt to sue private actors-such as the
key prosecution witness (Ms. Peterson) and his courtappointed criminal defense attorneys-because he believes
that they separately contributed to his indictment and
conviction, even though such actors clearly do not have
Section 1983 liability given the allegations in plaintiff's

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2008 WL 4394681

complaint. See, e.g., Contes v. City of New York, No.
99 Civ. 1597(SAS), 1999 WL 500140, at *11 (S.D.N.Y.
July 14, 1999) (“It would be futile to grant leave to
replead in this case. Without state action, which is lacking
here, [plaintiff] cannot prevail on a claim pursuant to
§ 1983.”). Similarly, plaintiff sues the District Attorney
and ADAs even though their alleged wrongful conduct
in the grand jury and at trial, which is described in the
complaint, is clearly protected by absolute immunity. In
essence, plaintiff is primarily seeking to re-litigate issues,
via this civil lawsuit, that he unsuccessfully challenged on
direct appeal in seeking to have his conviction overturned
against parties who have no Section 1983 liability even
if the facts alleged in his complaint are true. After
carefully reviewing all of plaintiff's submissions, it is
abundantly clear that no amendments can cure these
pleading deficiencies and any attempt to replead would
be futile. See Cuoco, 222 F.3d at 112 (“The problem with
[plaintiff's] cause[ ] of action is substantive; better pleading
will not cure it. Repleading would thus be futile. Such
a futile request to replead should be denied.”); see also
Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999)
(holding that if a plaintiff cannot demonstrate he is able
to amend his complaint “in a manner which would survive
dismissal, opportunity to replead is rightfully denied”).

End of Document

6

In reaching this determination, the Court has
reviewed all of the plaintiff's submissions, including
the documents that he attached to his opposition, all
of which confirm the futility of any amendment as to
the proposed federal claims.

III. CONCLUSION
*16 For the foregoing reasons, defendants' motions to
dismiss plaintiff's claims are GRANTED in their entirety.
The Clerk of the Court shall enter judgment accordingly
and close this case.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal from this order would not be taken in
good faith; therefore, in forma pauperis status is denied for
purpose of an appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2008 WL 4394681

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13

LaRocco v. Jackson, Not Reported in F.Supp.2d (2012)
2012 WL 947554

2012 WL 947554
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Dominick LAROCCO, Plaintiff,
v.
John JACKSON and James McGeown, Defendants.
No. 10–CV–01651 (NGG)(LB).
|
March 19, 2012.

arrested again for a parole violation on November 13,
2008. (Compl. at 13, 15.)
On April 7, 2010, LaRocco filed his instant Complaint
pursuant to 42 U.S.C. § 1983, naming the City of
New York, Kristin McGeown, John Jackson, and James
McGeown as Defendants. 1 He alleges that Defendants
subjected him to a false arrest and imprisonment, a
malicious prosecution, and a conspiracy to commit the
former two acts. (Compl. at 8.) LaRocco seeks monetary
damages and a “lifetime order of protection against” the
Defendants. (Compl. at 5.)
1

AMENDED MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
*1 Plaintiff Dominick LaRocco, pro se, brings this action
against Defendants John Jackson and James McGeown
under 42 U.S.C. § 1983. LaRocco alleges that he was the
victim of a false arrest and imprisonment, a malicious
prosecution, and a conspiracy to commit the former
two acts. Defendant Jackson now moves to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons stated below, the motion to
dismiss is granted. The court also dismisses LaRocco's
claim against Defendant McGeown for failure to serve
pursuant to Federal Rule of Civil Procedure 4(m).

I. BACKGROUND
LaRocco alleges that on or about November 10, 2008, he
delivered a dozen roses and a gift to Kristin McGeown at
the supermarket where she was working. (Compl. (Docket
Entry # 2) at 9.) Later that night, Kristin McGeown filed
a police report in which she claimed that LaRocco had
made numerous unwelcomed visits to her place of work,
sent her letters and gifts, and forcibly grabbed and kissed
her. (Id. at 10.) Defendant John Jackson was the officer
who took down the report. (Id. at 12.) LaRocco alleges
that Defendant James McGeown, Kristin McGeown's
father and an NYPD lieutenant, told Jackson, “I want
this to stop.” (Id. at 13.) The next day, November 11,
2008, Jackson arrested LaRocco on three charges: (1)
aggravated harassment in the second degree; (2) stalking
in the fourth degree; and (3) harassment in the second
degree. (See Arrest Report (Docket Entry # 62–5) at
1–2.) LaRocco posted bail the following day but was

At the time LaRocco filed his Complaint, he was
incarcerated at Rikers Island.

On July 9, 2010, the court dismissed the claims against
Kristin McGeown on the grounds that she was not a state
actor, and dismissed the claims against the City of New
York on the grounds that LaRocco had not shown that
a municipal policy or custom had caused a deprivation
of his constitutional rights. (See Order of July 9, 2010
(Docket Entry # 7).) Thus, only John Jackson and James
McGeown remained as Defendants.
The criminal case that resulted from the alleged false
arrest and malicious prosecution had not been resolved
at the time LaRocco filed his Complaint. As a result,
the present case was stayed pending a final resolution of
the criminal matter. (See Order of Apr. 20, 2011 (Docket
Entry # 52).) On April 21, 2011, the criminal matter was
resolved when LaRocco entered a plea of guilty to the
charge of aggravated harassment in the second degree.
(See Criminal Appearance History (Docket Entry # 62–
6) at 1. 2 ) John Jackson then moved to dismiss LaRocco's
Complaint. (See Mot. to Dismiss (Docket Entry # 61).)
2

In the context of a motion to dismiss, the court may
consider facts alleged in the complaint, documents
attached to the complaint or incorporated by
reference, and matters of which courts may take
judicial notice. See Leonard F. v. Israel Discount Bank
of N.Y., 199 F.3d 99, 107 (2d Cir.1999). Judicial notice
may be taken of public records. See Barmapov v.
Barry, No. 09–CV–03390 (RRM)(RML), 2011 WL
32371, at *2 n. 3 (E.D.N.Y. Jan. 5, 2011) (taking
judicial notice of plaintiff's guilty plea in a false arrest
and malicious prosecution case).

II. STANDARD OF REVIEW

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

LaRocco v. Jackson, Not Reported in F.Supp.2d (2012)
2012 WL 947554

*2 In deciding a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), the court evaluates
the sufficiency of the complaint under the “two-pronged
approach” established by the Supreme Court in Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d
868 (2009). The court “begin[s] by identifying pleadings
that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Havden v. Paterson,
594 F.3d 150, 161 (2d Cir.2010) (quoting Iqbal, 129 S.Ct.
at 1950). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do
not suffice” to withstand a motion to dismiss. Iqbal, 129
S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Second, “[w]hen there are well-pleaded factual allegations,
a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for
relief.” Id. at 1950. A claim is facially 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.” Id. (internal quotation
marks omitted). Plausibility “is not akin to a probability
requirement,” but requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id. (internal
quotation marks omitted).
“[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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal
quotation marks omitted). “[T]he submissions of a pro se
litigant must be construed liberally and interpreted to raise
the strongest arguments that they suggest.” Triestman v.
Fed–Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir.2006)
(internal quotation marks omitted). Nevertheless, even a
pro se complaint will be dismissed if it does not contain
“sufficient factual matter, accepted as true, ‘to state a
claim to relief that is plausible on its face.’ “ Iqbal, 129
S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570).

III. DISCUSSION
A. Failure to Serve Defendant James McGeown
Magistrate Judge Bloom ordered LaRocco to serve
Defendant James McGeown by June 16, 2011. (See Order
of Feb. 25, 2011 (Docket Entry # 48).) Because LaRocco
has failed to do so, the court dismisses the claim against
James McGeown pursuant to Federal Rule of Civil

Procedure 4(m). 3 John Jackson is the only remaining
Defendant.
3

LaRocco acknowledges that he did not serve James
McGeown. (See Pl. Opp. (Docket Entry # 59) at 25.)

B. False Arrest
LaRocco claims that his arrest by Jackson was illegal
because it was based on false information and was made as
a favor to James McGeown. However, LaRocco's guilty
plea on a charge on which he was arrested precludes a
determination that the arrest was unlawful.
A § 1983 false arrest claim must allege a deprivation of the
plaintiffs Fourth Amendment right to remain free from
unreasonable seizures, including the right to remain free
from arrest absent probable cause. Torraco v. Port Auth.
of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir.2010). “The
existence of probable cause is an absolute defense to a
false arrest claim.” Jaegly v. Couch, 439 F.3d 149, 152
(2d Cir.2006). “In the Second Circuit, an uncontroverted
conviction for the crime of arrest is conclusive evidence
that the arresting officer had probable cause to make the
arrest.” Barmapov v. Barry, No. 09–CV–03390 (RRM)
(RML), 2011 WL 32371, at *4 (E.D.N.Y. Jan. 5, 2011)
(citing Cameron v. Fogarty, 806 F.2d 380, 387–89 (2d
Cir.1986)).
*3 Although LaRocco pled guilty to only one of the
three charges on which he was arrested—all of which are
linked to LaRocco's November 10, 2008, interaction with
Kristin McGeown—that plea establishes probable cause
for the arrest and thus bars LaRocco's claim for false
arrest. See id. at *4 n. 5 (“[T]he Second Circuit ... does
not require Plaintiff to have been convicted of exactly the
same charge for which he was arrested. Th[e] court need
only consider whether as a total transaction the activity
forming the basis for the arrest is the same as the activity to
which plaintiff pleaded guilty.” (internal quotation marks,
alterations, and citations omitted)); Johnson v. New York
City, No. 01–CV–1860 (SJF)(VVP), 2004 WL 502929, at
*4 (E.D.N.Y. Jan. 12, 2004); Allison v. Farrell, No. 97–
CV–2247 (DAB), 2002 WL 88380, at *4 (S.D.N.Y. Jan.22,
2002). Because LaRocco has failed to show a lack of
probable cause for his arrest, his claim for false arrest and
imprisonment must be dismissed.

C. Malicious Prosecution

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2

LaRocco v. Jackson, Not Reported in F.Supp.2d (2012)
2012 WL 947554

LaRocco's Complaint also alleges a claim for malicious
prosecution against Jackson. This claim must be dismissed
for similar reasons to his false arrest claim.
In order to prevail on a § 1983 claim
against a state actor for malicious
prosecution, a plaintiff must show
a violation of his rights under
the Fourth Amendment, and must
establish the elements of a malicious
prosecution claim under state law.
To establish a malicious prosecution
claim under New York law, a
plaintiff must prove (1) the initiation
or continuation of a criminal
proceeding against plaintiff, (2)
termination of the proceeding
in plaintiff's favor, (3) lack of
probable cause for commencing the
proceeding, and (4) actual malice as
a motivation for defendant's actions.
Manganiello v. New York City, 612 F.3d 149, 160–61 (2d
Cir.2010) (internal quotation marks omitted).
As with LaRocco's false arrest claim, his claim for
malicious prosecution fails because LaRocco cannot
show a lack of probable cause for commencing the
criminal proceedings against him. See id . Additionally,
LaRocco's unchallenged guilty plea precludes a finding of
“termination of the proceedings in [his] favor.” Id.; see
also Okoi v. El Al Israel Airlines, 378 Fed. Appx. 9, 11 (2d
Cir.2010) (plaintiff's malicious prosecution claim failed
because he pled guilty, even though the charges were later
dismissed under a “conditional discharge” agreement).
Because two essential elements of LaRocco's claim for
malicious prosecution are absent, his claim is dismissed.

Finally, LaRocco claims that Jackson conspired with
James McGeown to falsely arrest and maliciously
prosecute him. Because LaRocco's § 1983 claims for
false arrest and malicious prosecution are dismissed, his
claim for conspiracy to commit those violations must be
dismissed as well. See Curley v. Village of Suffern, 268 F.3d
65, 72 (2d Cir.2001); Pugh v. New York City, No. 01–CV–
0129 (ILG), 2002 WL 398804, at *2 n. 4 (E.D.N.Y. Jan.15,
2002).

E. Leave to Amend
*4 A court must give a pro se plaintiff leave to amend
his complaint if the complaint “gives any indication that
a valid claim might be stated.” Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir.2000). LaRocco's Complaint
provides no such indication; thus, the court does not
grant LaRocco leave to amend his Complaint. However,
the court notes that if LaRocco successfully appeals his
criminal conviction for aggravated harassment in the
second degree, he might be able to cure his currently
deficient Complaint. If that occurs, LaRocco is free to file
a motion to reopen his case pursuant to Federal Rule of
Civil Procedure 60(b).

IV. CONCLUSION
LaRocco's § 1983 claims against Defendant Jackson for
false arrest and imprisonment, malicious prosecution,
and conspiracy are DISMISSED with prejudice pursuant
to Federal Rule of Civil Procedure 12(b)(6). LaRocco's
claims against Defendant McGeown are DISMISSED
without prejudice pursuant to Federal Rule of Civil
Procedure 4(m).
SO ORDERED.

All Citations
D. Conspiracy

End of Document

Not Reported in F.Supp.2d, 2012 WL 947554
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3

Pugh v. City of New York, Not Reported in F.Supp.2d (2002)
2002 WL 398804

KeyCite Yellow Flag - Negative Treatment
Distinguished by Burdick v. Johnson, N.D.N.Y., October 4, 2007

2002 WL 398804
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Jakim PUGH, Plaintiff,
v.
THE CITY OF NEW YORK, Detectives Steven
Chmiel and Louis Scarcella, and Unidentified
New York City Police Officers, Defendants.
No. 01 CV 0129(ILG).
|
Jan. 15, 2002.

MEMORANDUM & ORDER
GLASSER, District J.
*1 In this 42 U.S.C. § 1983 action, plaintiff Jakim Pugh
(“Pugh”) alleges that he was falsely arrested, and subjected
to excessive force during that arrest, by various officers
of the New York City police department. The City of
New York now moves to dismiss certain counts in the
complaint, pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. 1 For the reasons set forth below, the
City's motion is granted.
1

By letter dated August 22, 2001, defendant Detective
Louis Scarcella (“Scarella”) requested that he be
permitted to join the City's motion to dismiss. The
Court granted that request on August 31, 2001.

BACKGROUND
On January 9, 2001, Pugh commenced this action. In his
bare-bones complaint, Pugh includes only one paragraph
regarding the alleged constitutional violations he suffered.
That paragraph reads:
The plaintiff on January 8,
1998 at about 8:00 AM near
the intersection of Dumont and
Grafton, Kings County, New
York was unlawfully seized
by defendants, UNIDENTIFIED

NEW YORK CITY POLICE
OFFICERS. After the plaintiff was
unlawfully stopped by the police,
plaintiff was unlawfully assaulted,
searched, handcuffed and arrested.
Plaintiff was physically assaulted,
falsely charged with murder and
unlawfully interrogated. During
the interrogation plaintiff was hit
and threatened by the defendants.
Plaintiff JAKIM PUGH was
imprisoned and brought to a
police precinct and central booking.
Plaintiff JAKIM PUGH was forced
to stay in jail until he was
released for lack of evidence without
appearing in court on January 9,
1998. Defendants CHMIEL and
SCARCELLA were responsible for
the arrest and investigation of the
plaintiff.
(Compl.¶ 13.) Based on the allegations in this paragraph,
Pugh asserts five causes of action, each of which is brought
pursuant to Section 1983:(i) a claim based on the allegedly
false arrest (see id. ¶¶ 14–21); (ii) a claim based on the
allegedly excessive force used during and after the arrest
(see id. ¶¶ 22–27); (iii) a claim based on the defendants'
alleged failure “to intercede to prevent preventable harms
caused by other officers' actions” (see id. ¶¶ 28–31); (iv) a
Monell claim against the city (see id. ¶¶ 32–40); and (v) a
claim tracking the Monell claim, but against the individual
defendants (see id. ¶¶ 41–45).
The City now moves to dismiss a number of the causes
of action asserted in the complaint. First, the City asserts
that the false arrest and excessive force claims must
be dismissed because they are barred by the statute of
limitations. (See Def. Mem. at 4–5.) The City also argues
that, to the extent Pugh has pleaded a conspiracy claim,
that claim must be dismissed because it is inadequately
plead. (See id. at 6–7.) Finally, the City argues that the
claims against it must be dismissed, because Pugh has
failed to allege facts demonstrating that his constitutional
rights were violated as a result of a policy, practice or
custom of the City. (See id. at 7–9.) 2 Pugh has not
opposed the City's motion.

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1

Pugh v. City of New York, Not Reported in F.Supp.2d (2002)
2002 WL 398804

2

The City also argues that the Court should dismiss
Pugh's malicious prosecution claim, because no
criminal prosecution ever was initiated against Pugh.
(See Def. Mem. at 5–6.) The complaint, however,
nowhere alleges a claim for malicious prosecution.

DISCUSSION
On a Rule 12(b)(6) motion, the Court must accept as
true the factual allegations in the complaint and view the
complaint in the light most favorable to the non-moving
party. Bolt Elec., Inc. v. City of N.Y., 53 F.3d 465, 469
(2d Cir.1995). Dismissal under Rule 12(b)(6) may only be
granted if “it appears beyond doubt that the Plaintiff can
prove no set of facts in support of her claim which entitle
her to relief.” Walker v. City of N.Y., 974 F.2d 293, 298
(2d Cir.1992) (internal quotations omitted).

I. The false arrest and excessive force claims must be
dismissed
*2 In New York, the statute of limitations for actions
brought pursuant to Section 1983 is three years. See, e.g.,
Owens v. Okure, 488 U.S. 235, 240–41 (1989); Paige v.
Police Dep't of City of Schenectady, 264 F.3d 197, 199
n. 2 (2d Cir.2001). Thus, because each of the claims in
the complaint is brought under Section 1983, each claim
must have been brought within three years from the date
it accrued, or else it is barred by the statute of limitations.
The City argues that Pugh's false arrest and excessive
force claims accrued on January 8, 1998, the date on
which Pugh allegedly was falsely arrested and subjected
to excessive force. (See Def. Mem. at 4–5.) Accordingly,
the City asserts that Pugh's false arrest and excessive force
claims are barred by the statute of limitations, because he
filed his complaint on January 9, 2001, one day too late.
(See id.)
The City is correct. A Section 1983 claims accrues “when
the plaintiff knows or has reason to know of the harm”
he has suffered. Connolly v. McCall, 254 F.3d 36, 41 (2d
Cir.2001) (quoting Eagleston v. Guido, 41 F.3d 865, 871
(2d Cir.1994)). In general, where an allegedly false arrest
does not result in the initiation of a criminal prosecution,
a claim of false arrest accrues on the date of the arrest. See
Covington v. City of N.Y., 171 F.3d 117, 123 (2d Cir.1999);
Lewis v. N.Y.C. Police Dep't, No. 99 CIV 0952, 2000 WL
16955, at *2 (S.D.N.Y. Jan. 10, 2000); Bezerra v. County
of Nassau, 846 F.Supp. 214, 218–19 (E.D.N.Y.1994). An

excessive force claim accrues on the date the plaintiff
was subjected to the allegedly excessive force. See, e.g .,
Pichardo v. N.Y. Police Dep't, No. 98 CIV 429, 1998
WL 812049, at *7 (S.D.N.Y. Nov. 18, 1998); Bezerra,
846 F.Supp. at 219. In this case, Pugh's false arrest
claim accrued on January 8, 1998, the date of his arrest,
because no criminal prosecution was initiated against him.
Likewise, Pugh's excessive force claim accrued on January
8, 1998, because Pugh was subjected to the allegedly
excessive force on that date. (See Compl. ¶ 13.) Therefore,
because Pugh did not file his complaint until January 9,
2001, his false arrest and excessive force claims are time
barred. 3
3

Pugh cannot be heard to complain that it would be
unfair to dismiss these claims because his lawsuit was
filed one day too late. Numerous courts have granted
motions to dismiss where the lawsuit at issue was
filed one day beyond the statute of limitations. See,
e.g., Merriweather v. City of Memphis, 107 F.3d 396,
400 (6th Cir.1997); Day v. Morgenthau, 909 F.2d 75,
79 (2d Cir.1990); Kasler/Cont'l Heller/Fruin Colnon v.
United States, 9 Cl.Ct. 187, 191 (1985).

Accordingly, these claims must be dismissed. 4
4

In his false arrest claim, Pugh makes a passing
reference to a conspiracy on the part of the defendants
to falsely arrest him. (See Compl. ¶ 18.) The City
has moved to dismiss this “claim,” on the ground
that it has been inadequately pleaded. It is not
altogether clear to the Court that, notwithstanding
his stray reference to a conspiracy, that Pugh has
attempted to assert a Section 1983 conspiracy claim.
But even assuming that Pugh intended to assert
such a claim, the City is correct that the “claim”
must be dismissed, for two reasons. First, the claim
has been insufficiently pleaded, as the City argues.
See Dwares v. City of N.Y., 985 F.2d 94, 100 (2d
Cir.1993) (“complaints containing only conclusory,
vague, or general allegations that the defendants
have engaged in a conspiracy to deprive the plaintiff
of his constitutional rights are properly dismissed;
[d]iffuse and expansive allegations are insufficient,
unless amplified by specific instances of misconduct”)
(internal quotation marks and citations omitted).
Furthermore, “[s]ince [Pugh] cannot establish a claim
for false arrest or the use of excessive force, he may
not maintain a § 1983 cause of action for conspiracy.”
Curley v. Village of Suffern, 268 F.3d 65, 72 (2d
Cir.2001).

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2

Pugh v. City of New York, Not Reported in F.Supp.2d (2002)
2002 WL 398804

II. The Monell claim must be dismissed
Pugh also purports to assert a Monell claim against the
City. A Monell claim—arising from the Supreme Court
case of Monell v. Department of Social Services, 436 U.S.
658 (1978)—is a way to hold a municipality liable under
Section 1983 for the conduct of its employees. See Dwares
v. City of N.Y., 985 F.2d 94, 100 (2d Cir.1993). Such a
claim cannot simply be based on a theory of respondeat
superior, however; rather, a plaintiff “must show that
the violation of his constitutional rights resulted from
a municipal custom or policy.” Id. (citations omitted);
accord Perez v. County of Westchester, 83 F.Supp.2d
435, 438 (S.D.N.Y.2000). “The inference that such a
policy existed may arise from ‘circumstantial proof, such
as evidence that the municipality so failed to train its
employees as to display a deliberate indifference to the
constitutional rights of those within its jurisdiction.” ’
Dwares, 985 F.2d at 100 (quoting Ricciuti v. N.Y.C.
Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). However,
*3 [t]he mere assertion ... that a
municipality has such a custom or
policy is insufficient in the absence
of allegations of fact tending to
support, at least circumstantially,
such an inference. Similarly, the
simple recitation that there was a
failure to train municipal employees
does not suffice to allege that a
municipal custom or policy caused
the plaintiff's injury. A single
incident alleged in a complaint,
especially if it involved only
actors below the policymaking level,
generally will not suffice to raise
an inference of the existence of a
custom or policy.
Id. (internal citations omitted); accord Perez, 83
F.Supp.2d at 438–39.
The allegations in this case are insufficient to establish
that the alleged deprivation of Pugh's constitutional rights
resulted from a custom or policy of the City. Pugh merely
alleges, without any supporting factual allegations, that
the City, “as a matter of policy and practice, ha[s] acted
with a callous, reckless and deliberate indifference to
plaintiffs' [sic ] constitutional rights under the constitution
and laws of the United States, in that [it] failed to

adequately discipline, train, supervise or otherwise direct
police officers concerning the rights of citizens.” (Compl.
¶ 34; see also id. ¶¶ 35–38.) Because Pugh's complaint
does not contain a single factual allegation in support
of this conclusory allegation, it must be dismissed.
See Dwares, 985 F.2d at 101 (allegation that the City
“knowingly, recklessly, negligently failed to, and was
deliberately indifferent to the need to provide adequate
training, monitoring and supervision of the defendant
police officers with respect to their obligation to protect
citizens engaged in protected First Amendment activity
from unlawful and unjustified intrusions on the exercise
of those rights” insufficient, without more, to state Monell
claim); Perez, 85 F.Supp.2d at 438–39 (allegation that
“[a]t all times hereinafter stated, defendants, their agents,
servants and employees, were acting under color of law
and pursuant to county policy and custom” insufficient);
Fanelli v. Town of Harrison, 43 F.Supp.2d 254, 258–
60 (S.D.N.Y.1999) (same); Kuriakose v. City of Mount
Vernon, 41 F.Supp.2d 460, 466 (S.D.N.Y.1999) (same);
Oparaji v. City of N.Y., No. 96 CV 6233, 1997 WL 139160,
at *3 (E.D.N.Y. Mar. 21, 1997) (same). 5
5

It is unclear from the complaint whether Pugh also
asserts his Monell claim against individual police
officers, in their official capacities, in addition to the
City. Nevertheless, to the extent Pugh attempts to
do so, the claim must be dismissed as against the
individual officers for the same reason that it must be
dismissed as against the City. See Dwares, 985 F.2d at
100 (“there must be proof of ... a custom or policy in
order to permit recovery on claims against individual
municipal employees in their official capacities, since
such claims are tantamount to claims against the
municipality itself”).

CONCLUSION
For the reasons set forth above, the City's motion to
dismiss is granted, and Pugh's false arrest and excessive
force claims (Counts I and II in the complaint) are
dismissed with prejudice. To the extent Pugh alleges a
conspiracy claim under Section 1983, that claim also is
dismissed with prejudice. Pugh's Monell claim (Count IV
in the complaint) is dismissed without prejudice.
SO ORDERED.

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3

Pugh v. City of New York, Not Reported in F.Supp.2d (2002)
2002 WL 398804

All Citations
Not Reported in F.Supp.2d, 2002 WL 398804
End of Document

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© 2017 Thomson Reuters. No claim to original U.S. Government Works.

4

Griffin-Nolan v. Providence Wash. Ins. Co., Not Reported in F.Supp.2d (2005)
2005 WL 1460424

KeyCite Yellow Flag - Negative Treatment
Distinguished by Harrison v. New York, E.D.N.Y., March 20, 2015

2005 WL 1460424
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Edward P. GRIFFIN-NOLAN, Plaintiff,
v.
PROVIDENCE WASHINGTON INSURANCE
COMPANY and Howard Blute, in his
Individual Capacity as Manager for the
Business Development Executives at
Washington Insurance Company, Defendants.
No. 504CV1453FJSGJD.
|
June 20, 2005.
Attorneys and Law Firms
Chamberlain, D'Amanda, Oppenheimer & Greenfield
LLP, The Galleries of Syracuse, Syracuse, New York, for
Plaintiff, Mairead E. Connor, of counsel.
City of Syracuse Corporation Counsel, Syracuse, New
York, for Defendants, David H. Walsh, IV, of counsel.

the crime of obstruction of justice and how to handle
the public; (4) a § 1985(3) cause of action against all
Defendants for conspiracy to deprive him of the equal
protection of the law and of his equal privileges and
immunities, alleging that Defendants conspired to so
deprive him out of animus for his attempt to prevent
them from injuring a third-person on the basis of that
third-person's race or color; (5) a common law false arrest
claim against all Defendants; (6) a common law false
imprisonment claim against Defendants Mullen, Cecile,
and City; (7) a common law malicious prosecution claim
against all Defendants; (8) a common law libel claim
against Defendant Hennessey, alleging that he made false
statements in his Complaint Information; and (9) a claim
for attorney's fees pursuant to 42 U.S.C. § 1988.
Based upon these claims, Plaintiff seeks (1) declaratory
relief with respect to all causes of action, (2) injunctive
relief with respect to all causes of action other than those
made pursuant to § 1983, (3) compensatory damages,
(4) exemplary or punitive damages, and (5) costs,
disbursements, and legal fees.
Currently before the Court is Defendants' motion to
dismiss Plaintiff's complaint pursuant to Rules 12(b)(5)
and 12(b)(6) of the Federal Rules of Civil Procedure. 1
1

MEMORANDUM-DECISION AND ORDER
SCULLIN, Chief J.
I. INTRODUCTION
*1 Plaintiff's complaint asserts (1) a 42 U.S.C. §
1983 cause of action for false arrest and denial of
First Amendment rights against Defendants City of
Syracuse (“City”), Mullen, and Hennessey, alleging that
Defendants arrested him for speaking to Defendant
officers about their conduct in arresting a third-party; (2)
a § 1983 cause of action for false arrest and denial of
First Amendment rights against all Defendants, alleging
that they arrested him because they believed he might file
a complaint of police misconduct; (3) a § 1983 cause of
action for failure to train against Defendant City, alleging
that Defendant City acted with deliberate indifference in
failing to train its officers with respect to what constitutes

Defendants' motion to dismiss does not address
Plaintiff's claim for attorney's fees pursuant to 42
U.S.C. § 1988.

II. BACKGROUND 2
2

Given the procedural posture of this case, the Court
assumes the truth of the allegations in Plaintiff's
complaint.

On the evening of December 16, 2003, Plaintiff was
working as a licensed massage therapist at his booth
in the Carousel Center mall. See Dkt. No. 1 at ¶ 10.
Around 8:00 p.m. of that evening, he saw a “Hispanic
man of color” (“Paredes”) walking toward him and
noticed a mall security officer pointing Paredes out to
Defendants Hennessey and Mullen. See id. at ¶ 11.
When Defendant Hennessey tried to stop Paredes by
placing his hand on Paredes' chest, Paredes spat on the
floor and continued shouting that he was going to kill
someone. See id. at ¶ 12. Defendant Hennessey then took
Paredes behind Plaintiff's booth, told him to show some

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Griffin-Nolan v. Providence Wash. Ins. Co., Not Reported in F.Supp.2d (2005)
2005 WL 1460424

respect, and smashed his back and head against a concrete
pillar. See id. at ¶¶ 13-14. Paredes then either pushed or
kicked at Defendant Hennessey, at which point they both
tumbled and knocked over Plaintiff's booth. See id. at ¶¶
15-16. With Paredes face-down on the floor, Defendant
Hennessey placed his knee in Paredes' back and began
punching him in the back. See id. at ¶¶ 18-19. Defendant
Mullen then also placed his knee in Paredes' back and
began punching him in the back and sides. See id. at ¶ 21.
Defendant officers each hit Paredes six or more times after
they had subdued him. See id. at ¶ 22.
*2 Plaintiff crouched by Defendant officers and told
them that they had gone over the top and were out of
control. See id. at ¶ 24. Defendant Mullen told Plaintiff to
get back, and Plaintiff complied. See id. at ¶¶ 26-27. After
Defendant officers continued to punch Paredes in the
back, Plaintiff again told them that they were over the top.
See id. at ¶¶ 28-29. Defendant Mullen told Plaintiff that,
if he did not stop, he would be arrested for Obstructing
Governmental Administration. See id. at ¶ 30. Plaintiff
stopped speaking to Defendant officers, and they pulled
Paredes up and led him away. See id. at ¶¶ 31-32.
At approximately 9:00 p.m., Defendant Mullen returned
to Plaintiff's booth with Defendant Cecile and a mall
security guard. See id. at ¶ 33. Defendant Cecile told
Plaintiff that he understood that Plaintiff had been
involved in an incident earlier in the evening and asked
Plaintiff to explain what happened. See id. at ¶ 34. As
soon as Plaintiff began to explain, Defendant Cecile
stopped him and asked him whether he understood that
he could be arrested. See id. at ¶ 35. Defendant Cecile told
Plaintiff that, at the time of the incident, it was Defendants
Hennessey's and Mullen's call whether to arrest Plaintiff
but that, if Plaintiff made a complaint, it would be his call
whether to arrest Plaintiff. See id. at ¶ 37. After Plaintiff
said that he was not sure how the complaint procedure
worked, Defendant Cecile showed Plaintiff the patch on
his shoulder and said, “ ‘It's right here with me, right now.”
’ See id. at ¶¶ 38-39. Plaintiff told Defendant Cecile that he
did not think that this was the only way to file a complaint.
See id. at ¶ 40. Defendant Cecile then told Plaintiff that,
if he filed a complaint, Defendant Cecile would take
him down. See id. at ¶ 41. Next, Defendant Cecile told
Defendant Mullen, “ ‘He's not happy. We're going to get
a complaint. Take him in,’ or words to that effect.” See
id. at ¶ 42. When Plaintiff said that he had things at his
booth that he could not leave unsecured, Defendant Cecile

told him that he should have thought of that before. See
id. at ¶ 44. Upon Defendant Cecile's direction, Defendant
Mullen arrested Plaintiff for Obstructing Governmental
Administration by giving him an appearance ticket. See
id. at ¶¶ 45-46.
That same night, Defendant Hennessey submitted a
complaint information affidavit in support of Plaintiff's
arrest. See id. at ¶ 47. The affidavit contained a number of
statements that were false and that Defendant Hennessey
knew to be false when he made them. See id. at
¶¶ 48-49. Plaintiff's counsel filed a motion to dismiss
the information for insufficiency. See id. at ¶ 51. On
January 10, 2004, the Syracuse City Court dismissed the
information in its entirety. See id. at ¶ 52. 3 In or about
November 2004, Carousel Center management informed
Plaintiff that he could not set up his booth during the
holiday season because it was concerned about potential
negative publicity arising from these incidents. See id. at
¶ 53.
3

It appears to the Court that this dismissal actually
occurred on January 14, 2004, and was made
pursuant to New York Criminal Practice Law §
170.40. See Dkt. No. 9 at Pt. 5.

*3 Plaintiff filed the instant action on December 15,
2004. See Dkt. No. 1.

III. DISCUSSION
A. Defendants' motion to dismiss for insufficient service
of process pursuant to Rule 12(b)(5) of the Federal Rules
of Civil Procedure
Defendants argue that the Court lacks personal
jurisdiction over them because Plaintiff failed to serve
them with summonses. The docket sheet contains four
affidavits of service that indicate that each Defendant was
served with the summons and the complaint sometime
between January 12, 2005, and January 26, 2005. See
Dkt. Nos. 5-8. Perhaps these affidavits are mistaken;
Plaintiff's counsel has filed an affidavit stating that
Plaintiff personally served summonses and complaints for
all Defendants upon Defendants' counsel on February
8, 2005, one day after Defendants filed their motion to
dismiss. See Dkt. Nos. 9, 14 at ¶ 4. Since Defendants do
not address insufficiency of service of process in their reply
memorandum of law, the Court presumes that they were

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served summonses and are abandoning their motion to
dismiss pursuant to Rule 12(b)(5) of the Federal Rules
of Civil Procedure. Regardless, both Local Rule 7.1(a)(2)
and common sense dictate that a motion to dismiss for a
failure to serve summonses requires a supporting affidavit,
which Defendants have not provided. See L.R. 7.1(a)
(2). Accordingly, the Court denies Defendants' motion to
dismiss Plaintiff's complaint pursuant to Rule 12(b)(5) of
the Federal Rules of Civil Procedure.

B. Defendants' motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure
1. Standard of review
In considering a motion to dismiss for failure to state
a claim, the court must accept the allegations in the
complaint as true and draw all reasonable inferences in
favor of the non-moving party. See Burnette v. Carothers,
192 F.3d 52, 56 (2d Cir.1999). Hence, dismissal is
appropriate only if “ ‘it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” ’ Sheppard v. Beerman,
18 F.3d 147, 150 (2d Cir.1994) (quotation omitted).

2. Defendant City's liability for Plaintiff's § 1983 claims
A municipality may only be held liable under § 1983 when
its policies or customs result in a plaintiff's constitutional
injury. See Monell v. Dep't of Soc. Servs. of City of N.Y.,
436 U.S. 658, 694 (1978). The existence of a policy or
custom may be inferred when a plaintiff presents evidence
that a “ ‘municipality so failed to train its employees as
to display a deliberate indifference to the constitutional
rights of those within its jurisdiction....” ’ DeCarlo v. Fry,
141 F.3d 56, 61 (2d Cir.1998) (quotation and footnote
omitted). Contrary to some earlier Second Circuit cases,
there is no heightened pleading requirement for claims
of municipal liability. See Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
167-68 (1993) (rejecting contention that “plaintiff must
do more than plead a single instance of misconduct” to
state a claim for municipal liability); contra Dwares v.
City of N.Y., 985 F.2d 94, 100 (2d Cir.1993) (citation
omitted). As the Supreme Court noted, “federal courts
and litigants must rely on summary judgment and control
of discovery to weed out unmeritorious claims sooner
rather than later.” Leatherman, 507 U.S. at 168-69.

*4 Plaintiff's complaint alleges that Defendant City has
a policy or custom of threatening those who verbally
challenge, or indicate the desire to file a complaint
about, police misconduct with Obstructing Governmental
Administration and that Defendant City has shown
deliberate indifference in failing to train its police officers
in how to handle the public while making arrests and
failing to train its officers about what constitutes the
crime of Obstructing Governmental Administration. See
Dkt. No. 1 at ¶¶ 55, 64, 71-73. Plaintiff's allegations of
municipal liability are directly related to his allegation
of personal injury and, if shown to be true according to
the evidence, might support a determination of municipal
liability. Accordingly, the Court denies Defendants'
motion to dismiss Plaintiff's § 1983 claims against
Defendant City for failure to adequately plead municipal
liability.

3. Plaintiff's § 1983 and common law false arrest and
false imprisonment claims
a. elements of false arrest and false imprisonment
“The elements of false arrest ... under § 1983 are
‘substantially the same’ as the elements under New York
law.” Boyd v. City of N.Y., 336 F.3d 72, 75 (2d Cir.2003)
(quotation omitted). The elements of false arrest and false
imprisonment claims are identical: “ ‘(1) the defendant
intended to confine [the plaintiff], (2) the plaintiff was
conscious of the confinement, (3) the plaintiff did not
consent to the confinement and (4) the confinement was
not otherwise privileged.” ’ See Curry v. City of Syracuse,
316 F.3d 324, 335 (2d Cir.2003) (quotation omitted).
The central dispute between the parties is whether the
issuance of an appearance ticket constitutes the requisite
confinement.

b. common law false arrest and false imprisonment
Every New York case of which the Court is aware that
has considered whether the issuance of an appearance
ticket constitutes confinement has held that the issuance
of an appearance ticket, in and of itself, does not
constitute confinement for purposes of a common law
false arrest or false imprisonment claim. See Du Chateau
v. Metro-North Commuter R.R. Co., 253 A.D.2d 128,
129, 132 (1st Dep't 1999) (citations omitted) (police
officer escorted plaintiff from train, talked to him, and
issued an appearance ticket); Kramer v. Herrera, 176

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A.D.2d 1241, 1241 (4th Dep't 1991) (citations omitted);
Pozzanghera v. Anderson, 136 A.D.2d 912, 913 (4th Dep't
1988) (“Plaintiff's sole contention is that he was detained
by the service of an appearance ticket. This did not
restrict plaintiff's freedom and, therefore, does not form
a basis for his wrongful arrest claim.” (citation omitted));
Pritchett v. State, 61 A.D.2d 1110, 1110 (3d Dep't 1978);
cf. Reinhart v. Jakubowski, 239 A.D.2d 765, 766 (3d Dep't
1997) (issuance of criminal summons requiring court
appearance insufficient to support false arrest claim); Vill.
of Ellenville v. Searles, 235 A.D.2d 692, 693 (3d Dep't
1997) (brief traffic stop in order to serve process did not
constitute requisite confinement) (citations omitted).
*5 Plaintiff contends, however, that his complaint alleges
more than the mere issuance of an appearance ticket.
Conduct that accompanies the issuance of an appearance
ticket certainly can constitute confinement for purposes
of a false arrest or false imprisonment claim. See Wiggins
v. Metro-North Commuter R.R. Co., 228 A.D.2d 198,
198 (1st Dep't 1996) (police escorted plaintiff off train,
questioned him in a railroad police facility, and issued
an appearance ticket). Unfortunately, Plaintiff does not
specify which of his allegations he believes show that
Defendants confined him. The relevant allegations are:
33. Approximately one hour later, at about 9:00
p.m., Officer Mullen returned to Plaintiff's booth with
[Sergeant Cecile] and a mall security guard.
34. Sergeant Cecile told Plaintiff that he understood he
had been involved in an incident earlier and asked the
Plaintiff what happened.
35. As the Plaintiff began to tell him, Sergeant Cecile
interrupted Plaintiff and asked if Plaintiff understood
that he could be arrested.
36. Plaintiff was quite surprised at this statement as he
had complied with Officer Mullen's directive and had
not interfered with Paredes' arrest or done anything
unlawful.
37. Sergeant Cecile said that right then it was the
officer's call, but if they were going to receive a
complaint from the Plaintiff, it would be his call whether
to arrest Plaintiff.
38. Plaintiff said that he was not sure how the complaint
procedure worked.

39. Sergeant Cecile showed Plaintiff the patch on his
shoulder and said, “It's right here with me, right now.”
40. Plaintiff said that he did not think that was the only
way to file a complaint.
41. Sergeant Cecile then told Plaintiff, “I'll tell you right
now if you're filing a complaint, I'm taking you down,”
or words to that effect.
42. Sergeant Cecile told Officer Mullen, “He's not
happy. We're going to get a complaint. Take him in,”
or words to that effect.
43. Plaintiff explained that he had expensive things in
his booth that he could not leave unsecured.
44. Sergeant Cecile told Plaintiff that he should have
thought of that before.
45. Sergeant Cecile told Officer Mullen to give Plaintiff
an appearance ticket, which Officer Mullen did.
See Dkt. No. 1 at ¶¶ 33-45. Although Plaintiff alleges that
Defendant Cecile threatened to arrest him, the mere threat
to arrest does not constitute confinement. See Blumenfield
v. Harris, 3 A.D.2d 219, 220 (1st Dep't 1957) (citations
omitted), aff'd 3 N.Y.2d 905 (1957). 4
4

In articulating his first cause of action, Plaintiff
alleges that “[i]n the course of arresting Plaintiff,
plaintiff was not free to leave and was confined
against his will at the Carousel Center.” See Dkt.
No. 1 at ¶ 58. However, in light of the more specific
allegations that Plaintiff made in his statement of
facts, this allegation is too vague and conclusory
to support a reasonable inference that Defendants
confined him.

Accepting all of Plaintiff's allegations as true and drawing
every reasonable inference from them, the Court does
not find that he has alleged that Defendants took any
actions that would constitute confinement for purposes
of a common law false arrest or false imprisonment
claim. Accordingly, the Court grants Defendants' motion
to dismiss Plaintiff's common law false arrest and false
imprisonment claims for failure to state a claim.

c. § 1983 false arrest

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*6 The question of whether the issuance of an
appearance ticket constitutes confinement for purposes
of § 1983 is not so clear. Defendants rely upon Angel v.
Kasson, 581 F.Supp. 170, 177-78 (N.D.N.Y.1983) (“[I]t
[is] well settled that the issuance of such tickets under
the provisions of N.Y.Crim. Proc. Law § 150.10 does not
constitute an arrest.” (citation and footnote omitted)).
Plaintiff, on the other hand, relies upon Dorman v. Castro,
214 F.Supp.2d 299 (E.D.N.Y.2002), which states that,
[a]lthough this is a close case, the Court finds that
Plaintiffs were subject to a “seizure” under the Fourth
Amendment. Plaintiffs claim that their liberty was
restrained because “at the point when the Plaintiffs
were informed that they were being issued a Summons”
they “were not free to leave until the Plaintiffs had the
Summons in hand.”
Id. at 308 (quotation omitted). Dorman goes on to note
that “district courts in this circuit that have analyzed
Murphy [v. Lynn, 118 F.3d 938 (2d Cir.1997) ], however,
have held that the mere issuance of an appearance
ticket, without any restraint on travel, is a sufficient
restraint of liberty to constitute a ‘seizure’ under the
Fourth Amendment.” Id. (citing Kirk v. Metropolitan
Trans. Auth., No. 99 CV 3787, 2001 WL 258605, *15
(S.D.N.Y. Mar. 14, 2001); Kirton v. Hassel, No. 96 CV
1371, 1998 WL 146701, *6 (E.D.N.Y. Mar. 25, 1998);
Sassower v. City of White Plains, 992 F.Supp. 652, 656
(S.D.N.Y.1998)) (other citation omitted). 5
5

Contrary to Dorman' s statement, two of the
supporting cases it cites do not involve appearance
tickets and the third, Kirk, involves a desk appearance
ticket that the defendant issued after the plaintiff had
been arrested and detained. Kirk, 2001 WL 258605,
*2-*4.

Dorman and all the supporting cases that it cites rely
upon Murphy. Murphy, applying Albright v. Oliver, 510
U.S. 266 (1994), held that, in order for a plaintiff
to establish a § 1983 malicious prosecution claim, he
“must show ... that the initiation or pendency of judicial
proceedings” resulted in a Fourth Amendment “seizure.”
Murphy, 118 F.3d at 944. The court went on to hold
that “[t]he liberty deprivations regulated by the Fourth
Amendment are not limited to physical detention.” Id. at
945. Finally, the court, relying upon Justice Ginsburg's
solitary concurrence in Albright, held that

while a state has the undoubted
authority, in connection with a
criminal proceeding, to restrict
a
properly
accused
citizen's
constitutional right to travel outside
of the state as a condition of his
pretrial release, and may order him
to make periodic appearances, such
conditions are appropriately viewed
as seizures within the meaning of the
Fourth Amendment.
Id. at 946 (emphasis added).
Like Murphy, all three of the supporting cases that
Dorman cites concern malicious prosecution claims.
There is certainly considerable similarity between the
analysis of a § 1983 malicious prosecution claim and
a § 1983 false arrest claim; both arise out of the
Fourth Amendment's protection against unreasonable
seizures. However, Murphy does not expressly address
false arrest claims. Furthermore, there is reason to
constrain the application of Murphy to the precise issues
it addresses. Judge Jacobs, dissenting in Murphy, after
noting the majority's reliance upon Justice Ginsburg's
solitary concurrence, pointed out that “[a] probable cause
determination is required only for ‘those suspects who
suffer restraints on liberty other than the condition that
they appear for trial.” ’ Id. at 953, 955 (quoting Gerstein
[v. Pugh], 420 U.S. [103,] 125 n. 26, 95 S.Ct. [854,]
869 n. 26 [ (1975) ] (Judge Jacobs' emphasis)) (footnote
omitted). In Sassower, Judge Lowe noted the novelty of
the Murphy holding and quoted Judge Jacobs' statement
that “ ‘strange is the majority's holding that [plaintiff]
was seized within the meaning of the Fourth Amendment
because he was required to appear in court.” ’ Sassower,
992 F.Supp. at 655, 656 (quotation omitted).
*7 Although in the context of a malicious prosecution
claim Murphy would be controlling, given the tenuousness
of its reasoning, the Court holds that the issuance
of an appearance ticket does not, in and of itself,
constitute confinement for purposes of a § 1983 false
arrest or false imprisonment claim. Furthermore, since the
circumstances surrounding the issuance of the appearance
ticket in this case do not present any alternative forms
of the restraint of Plaintiff's liberty, the Court grants
Defendants' motion to dismiss Plaintiff's § 1983 false arrest
claims for failure to state a claim.

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4. Plaintiff's § 1983 First Amendment claims
Second Circuit First Amendment retaliation case law
is, to put it mildly, confusing. There are at least three
formulations of the elements of a First Amendment
retaliation claim. See Gill v. Pidlypchak, 389 F.3d 379,
380 (2d Cir.2004) ((1) protected speech or conduct, (2) the
defendant's adverse action against the plaintiff, and (3)
“ ‘a causal connection between the protected speech and
the adverse action” ’ (quotation omitted)); Dougherty v.
Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83,
91 (2d Cir.2002) ((1) conduct that the First Amendment
protects that (2) prompts or substantially causes the
defendant's action (citations omitted)); Curley v. Vill. of
Suffern, 268 F.3d 65, 73 (2d Cir.2001) ((1) protected
speech or conduct that (2) motivates or substantially
causes the defendant's action, which action (3) effectively
chills the plaintiff's exercise of his First Amendment right
(citation omitted)).
In an attempt to make sense of this case law, one approach
is to distinguish cases according to broad types. The great
majority of First Amendment retaliation cases arise in
the prisoner and public employee contexts. Less typical
are those cases, like the one currently before the Court,
in which a private citizen alleges that state actors took
some action against him in retaliation for his exercise
of his First Amendment rights. Unfortunately, even in
this subset of cases, there is disagreement about the
elements of the claim. The most recent case in this
subset to set forth the elements of a First Amendment
retaliation claim is Dougherty. In that case, the plaintiff
alleged that the defendants had revoked a previously
issued building permit in retaliation for his exercise of
his First Amendment rights. Although the court indicated
that there may have been additional protected speech, it
specifically noted the plaintiff's allegation that the permit
revocation occurred soon after the defendants' receipt of
his opposition papers to their motion to dismiss an action
that he had filed in relation to an earlier denial of a permit.
See Dougherty, 282 F.3d at 91-92. The court held that
the circumstances that the plaintiff alleged gave rise to a
sufficient inference of a causal relationship between his
protected conduct and the defendants' action to withstand
a motion to dismiss. See id. at 92.
*8 The next most recent case in the subset of private
citizen plaintiffs is Garcia v. S.U.N.Y. Health Scis. Ctr.
of Brooklyn, 280 F.3d 98 (2d Cir.2001). Garcia involved

a student who claimed that the defendants dismissed
him from medical school in retaliation for his exercise
of his First Amendment rights. The court followed the
same formulation of the elements of a First Amendment
retaliation claim as did Gill but concluded that the
plaintiff's assertions did not satisfy the third element of
that formulation. See id. at 106-07 (quotation and other
citation omitted).
After Garcia, the next most recent case in this subset is
Curley. The facts of that case are more analogous to those
of the instant action than are those of either Dougherty or
Garcia. The plaintiff in Curley alleged that the defendants
arrested him in retaliation for comments that he had made
while campaigning for municipal office about a police
cover-up and failure to discipline. See Curley, 268 F.3d at
72-73. The court found that the defendants were entitled
to summary judgment on the plaintiff's First Amendment
retaliation claim because the existence of probable cause
to arrest him negated the second element of such a claim
and because the fact that the plaintiff continued his
campaign and later campaigned for another municipal
office negated the third, “chilling,” element of the claim.
See id. at 73.
Curley is distinguishable from Dougherty and Garcia.
All the Second Circuit cases that the Court has found
involving a private citizen plaintiff who alleges that the
defendant arrested him in retaliation for his exercise of
his First Amendment rights have articulated the same
formulation of the elements of a First Amendment
retaliation claim as did Curley. See Kerman v. City
of N .Y., 261 F.3d 229, 241-42 (2d Cir.2001) (citation
omitted); Connell v. Signoracci, 153 F.3d 74, 79 (2d
Cir.1998) (citations omitted). Although it might be
difficult to explain the distinction between private citizen
arrestee plaintiff cases and the other private citizen
plaintiff cases, the distinction is present in the case law.
Therefore, the Court will follow the Curley formulation of
the elements of a First Amendment retaliation claim. 6
6

The only Second Circuit case that Plaintiff cites in
support of his First Amendment retaliation claims is
Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d
Cir.1994). Gagliardi applies the same formulation of
the elements of the claim as does Dougherty. See
id. at 194 (quotation and other citations omitted).
However, Gagliardi, like Dougherty, is a private

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citizen zoning dispute case rather than a private
citizen arrestee case.

The only challenge 7 that Defendants currently make
to Plaintiff's First Amendment retaliation claims is that
he fails to allege that they prevented him from filing
a compliant, i.e., he fails to allege that Defendants'
actions effectively chilled him from exercising his
First Amendment rights. However, this challenge reads
Plaintiff's claims too narrowly. Two distinct forms of
speech are at issue in Plaintiff's first two causes of action.
Plaintiff's first cause of action alleges that he verbally
complained about Defendants' actions during the course
of their arrest of Paredes. From Plaintiff's second cause
of action, it may be reasonably inferred that he also
desired to file a formal complaint about Defendants'
actions after the arrest incident. With respect to the second
cause of action, Plaintiff has not alleged that Defendants'
actions effectively chilled him from filing a complaint.
Therefore, Plaintiff's second cause of action fails to state
a First Amendment claim. Accordingly, the Court grants
Defendants' motion to dismiss the First Amendment
claims in Plaintiff's second cause of action for failure to
state a claim.
7

It is possible that Plaintiff's conduct in criticizing
Defendants' actions during the course of their
arrest of Paredes may not be protected activity. If
the allegations in Defendant Hennessey's affidavit
in support of the complaint information are
true, Defendants likely had probable cause to
arrest Plaintiff for Obstructing Governmental
Administration and, thus, their threat to arrest him
on that charge was privileged. See Dkt. No. 1 at ¶
48. However, since Defendants have not raised the
issue of whether Plaintiff's conduct was privileged,
and the Court must accept the allegations in Plaintiff's
complaint as true, the Court cannot address this issue
at this time.

*9 However, with respect to Plaintiff's first cause of
action, the Court finds that it may reasonably infer from
the complaint that Defendants' conduct effectively chilled
Plaintiff's speech. The relevant allegations are:
24. Plaintiff then crouched down and told the officers
that they were “over the top” and that they were “out
of control” or words to that effect.
25. Plaintiff did this because the police officers were
brutalizing Paredes.

26. Officer Mullen told Claimant to get back.
27. Claimant complied by stepping back.
28. Officers Mullen and Hennessey then continued to
punch Paredes on the back after Paredes was subdued.
29. Plaintiff told the officers again that they were “over
the top” or words to that effect.
30. Officer Mullen then told the Plaintiff that if he
didn't stop, he would be arrested for Obstructing
Governmental Administration.
31. Plaintiff stopped speaking to the officers.
See Dkt. No. 1 at ¶¶ 24-31. Accordingly, since Plaintiff has
sufficiently alleged that Defendants' (or at least Defendant
Mullen's) actions effectively chilled his exercise of his First
Amendment rights, the Court denies Defendants' motion
to dismiss Plaintiff's § 1983 First Amendment claims in his
first cause of action for failure to state a claim.

5. Plaintiff's § 1985(3) claims
Defendants have asserted three bases for the dismissal of
Plaintiff's § 1985(3) claims. First, they argue that Plaintiff,
as a white person, lacks standing to assert a § 1985(3)
claim. Second, they contend that Defendants, as agents
or employees of a corporate entity, by definition, may
not conspire with one another. Finally, they assert that
Plaintiff's factual allegations are insufficient to state a
conspiracy claim.

i. standing
Despite the age and extensive use of § 1985(3), case
law contains little discussion of the question of who has
standing to assert a claim under that statute. 8 However,
the Court finds that the case law provides sufficient
guidance to answer the question currently before it:
whether a non-minority person who alleges that he was
injured by a conspiracy that aimed to deprive minority
persons of the equal protection of the law has standing to
assert a § 1985(3) claim.
8

The parties have cited conflicting precedents, none of
which are binding on this Court. Defendants cite two
cases for the proposition that a plaintiff asserting a
§ 1985(3) claim must himself be a member of a class

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that the statute protects: Puglisi v. Underhill Park
Taxpayer Ass'n, 947 F.Supp. 673, 692 (S.D.N.Y.1996)
(citations omitted); McLoughlin v. Altman, No. 92
Civ. 8106, 1993 WL 362407, *6 (S.D.N.Y. Sept.
13, 1993) (citation omitted). Although McLoughlin
cites Griffin v. Breckinridge, [403 U.S. 88, 102,] 91
S.Ct. 1790, 1798 (1971), for the proposition that “a
claimant must show, among other things, that she
belonged to the type of class that is protected by that
statute,” McLoughlin, 1993 WL 362407, at *6, it does
not appear that Griffin stands for such a proposition.
Likewise, although Puglisi discusses several other
cases, when it holds “that plaintiff cannot bring this
§ 1985(3) claim because ... plaintiff is not a member
of the class protected by the statute nor a member of
the race triggering the alleged racial discrimination[,]”
McLoughlin is the only case that the court cited that
supports this holding. Puglisi, 947 F.Supp. at 692.
The cases upon which Plaintiff relies are also
suspect. He contends that a white person who has
sought to vindicate the rights of members of a
racial minority and against whom the defendants
conspire has standing to assert a § 1985(3) claim.
He cites three primary cases to support this
proposition: Maynard v. City of San Jose, 37
F.3d 1396, 1403-04 (9th Cir.1994) (citations and
footnote omitted); Pisello v. Town of Brookhaven,
933 F.Supp. 202, 216 (E.D.N.Y.1996) (citing
Maynard ); Bryant v. Polston, No. IP 00-1064C-T/G, 2000 WL 1670938, *7 (S.D.Ind. Nov. 2,
2000) (citing Maynard ). In Maynard, the Ninth
Circuit sought to apply the law of that circuit
which provided that “[p]laintiffs have standing
under Section 1985 only if they can show they
are members of a class that the government
has determined ‘require[s] and warrant[s] special
federal assistance in protecting their civil rights.”
’ Maynard, 37 F.3d at 1403 (quotations and other
citation omitted). The court reasoned that, because
Title VII “grants special protection to whites who
are denied association with members of other
groups because of an employer's discriminatory
practices” and “to all employees-regardless of racewho are subjected to retaliation for assisting in
the investigation of discriminatory employment
practices,” such persons may have standing to
assert a § 1985(3) claim. Id. (citation omitted). The
plaintiff in Maynard had alleged that his employer
and other defendants had retaliated against him for
complaining about discriminatory hiring practices.
See id. at 1399-1400. Since it does not appear
that the Second Circuit has articulated a general
statement of the requirement for standing under

§ 1985(3), the Court does not find Maynard
persuasive.

The Supreme Court has discussed the statute's purpose:
“[t]he predominant purpose of § 1985(3) was to combat the
prevalent animus against Negroes and their supporters.
The latter included Republicans generally, as well as
others, such as Northerners who came South with
sympathetic views towards the Negro.” United Bhd. of
Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott,
463 U .S. 825, 836 (1983). This statutory purpose implies
that, if a white person who sought to vindicate the rights of
members of a racial minority were injured by a conspiracy
that aimed to deny members of that racial minority of the
equal protection of the laws, he would have standing to
assert a § 1985(3) claim.
*10 At least two Courts of Appeals have expressly
held that a plaintiff asserting a § 1985(3) claim need not
himself be a member of a class that the statute protects.
See Cutting v. Muzzey, 724 F.2d 259, 260 (1st Cir.1984)
(holding that a non-Italian had standing to assert a §
1985(3) claim against members of a town planning board
who allegedly conspired to deprive Italians of access to
housing); Novotny v. Great Am. Fed. Sav. & Loan Ass'n,
584 F.2d 1235, 1244 (3d Cir.1978) (en banc ) (“[M]embers
of a conspiracy to deprive women of equal rights are liable
under § 1985(3) to persons who are injured in furtherance
of the object of the conspiracy, whether male or female.”),
vacated on other grounds, 442 U.S. 366 (1979). 9 Although
the Second Circuit has not addressed whether a white
person may have standing to assert a § 1985(3), the Court
finds that, in light of the discussion in Scott, the holdings
of Cutting and Novotny are persuasive. Therefore, the
Court concludes that the fact that Plaintiff is white does
not, in and of itself, bar him from asserting a § 1985(3)
claim. Consequently, since Plaintiff has alleged that a
conspiracy whose object was to deprive the constitutional
rights of a member of a racial minority injured Plaintiff
while he was seeking to vindicate those rights, the Court
finds that he has adequately alleged standing for his 42
U.S.C. § 1985(3) claim.
9

The Supreme Court vacated Novotny because the
plaintiff in that case alleged that the conspiracy that
injured him had the goal of depriving women of their
Title VII rights. The Court held that, because allowing
a plaintiff to base a § 1985(3) cause of action upon
rights that Title VII created would circumvent the
procedural requirement that Congress had built into

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Griffin-Nolan v. Providence Wash. Ins. Co., Not Reported in F.Supp.2d (2005)
2005 WL 1460424
Title VII, “deprivation of a right created by Title VII
cannot be the basis for a cause of action under §
1985(3).” Novotny, 442 U.S. at 378. Since the Fourth
Amendment creates the rights of Paredes of which
Plaintiff alleges Defendants conspired to deprive him,
the Court's holding does not bar Plaintiff's action.

ii. intra-corporate conspiracy doctrine
“ ‘Under the intracorporate conspiracy doctrine, officers,
agents and employees of a single corporate entity are
legally incapable of conspiring together[ ]” ’ while acting
within the scope of their employment. Nassau County
Employee “L” v. County of Nassau, 345 F.Supp.2d
293, 304 (E.D.N.Y.2004) (quotations and other citations
omitted); see Crudele v. City of N.Y. Police Dep't, No.
97 Civ. 6687, 2004 WL 1161174, *5 (S.D.N.Y. May 24,
2004) (citations omitted). Although courts first applied
this doctrine to cases involving public corporations, they
have subsequently held that the doctrine is applicable
to municipal entities and their officers, agents, and
employees. See County of Nassau, 345 F.Supp.2d at 304
(citation omitted); Cameron v. Church, 253 F.Supp.2d
611, 623 (S.D.N.Y.2003) (quotation omitted). “However,
‘[a]n exception to the intracorporate conspiracy doctrine
applies to individuals within a single entity when they
are pursuing personal interests wholly separate and apart
from the entity.” ’ County of Nassau, 345 F.Supp.2d at
304-05 (quotation omitted); see Stoner v. N.Y. City Ballet
Co., No. 99 Civ. 0196, 2002 WL 523270, *9 (S.D.N.Y.
Apr. 8, 2002) (quotation and other citation omitted).
Individual Defendants are officers of Defendant City.
See Dkt. No. 1 at ¶¶ 7-9. Plaintiff's allegation that at
the time that individual Defendants “conspired to violate
Plaintiff's civil rights and committed acts in furtherance
of such conspiracy, they were acting as police officers
for the City of Syracuse[ ]” is presumably an admission
that individual Defendants were acting within the scope of
their employment. See Dkt. No. 1 at ¶ 79.
*11 Nonetheless, Plaintiff contends that the personal
interest exception applies. “[T]hat exception applies
where ‘a plaintiff adequately alleges that each defendant
possessed an independent, personal conspiratorial
purpose.” ’ Everson v. N.Y. City Transit Auth., 216
F.Supp.2d 71, 76 (E.D.N.Y.2002) (quotation and other
citation omitted); see Salgado v. City of N.Y., No. 00
Civ. 3667, 2001 WL 290051, *9 (S.D.N.Y. Mar. 26,
2001). Plaintiff has not alleged that individual Defendants
had a personal interest in their alleged conspiracy. See

Dkt. No. 1 at ¶¶ 77-83. In his motion papers, Plaintiff
concedes that he “does not allege Defendants' personal
stake in their bias against Plaintiff or Paredes....” See
Dkt. No. 15 at 14. However, he contends that he has
“allege[d] sufficient facts to infer that the Defendants
were motivated by personal gain in silencing Plaintiff
about what he witnessed concerning their brutality and/
or misconduct in subduing and arresting Paredes and
preventing Plaintiff from filing a complaint about such
misconduct.” See id. at 14-15 (citations omitted). He
further argues that “the complaint alleges sufficient
facts to infer that Defendants' employment opportunities
and interest in not answering a complaint about their
misconduct was Defendants' personal stake or interest in
participating in the conspiracy.” See id. at 15. However,
since Defendant City arguably has the same general
interest, Plaintiff's allegations do not give rise to a
reasonable inference that individual Defendants' interests
in the alleged conspiracy were distinct from those of
Defendant City.
Accordingly, since the intra-corporate conspiracy
doctrine applies, the Court grants Defendants' motion to
dismiss Plaintiff's § 1985(3) claims for failure to state a
claim. 10
10

Since the Court concludes that the intra-corporate
conspiracy doctrine applies, it will not address
Defendants' alternative argument that Plaintiff's
factual allegations are insufficient to state a
conspiracy claim.

6. Plaintiff's common law malicious prosecution claims
In order to recover for malicious prosecution, a plaintiff
must establish four elements: that a criminal proceeding
was commenced; that it was terminated in favor of the
accused; that it lacked probable cause; and that the
proceeding was brought out of actual malice.
Cantalino v. Danner, 96 N.Y.2d 391, 394-95 (2001)
(citations omitted). Defendants argue that a dismissal
in the interest of justice of an accusatory instrument
pursuant to New York Criminal Practice Law § 170.40
cannot constitute a favorable termination. However,
Defendants only cite pre-Cantalino case law to support
their argument. Cantalino directly addressed “whether
the dismissal of criminal charges against plaintiff in
the interest of justice constituted a termination in her
favor.” Id. at 395. It expressly rejected “a per se rule that

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Griffin-Nolan v. Providence Wash. Ins. Co., Not Reported in F.Supp.2d (2005)
2005 WL 1460424

a dismissal in the interest of justice can never constitute
a favorable termination,” and held that
the question is whether, under the
circumstances of each case, the
disposition was inconsistent with
the innocence of the accused. A
case-specific rule is particularly
appropriate for dismissals in the
interest of justice, since the trial
court is required to state on the
record its reasons for dismissing
the criminal charges....
*12 Id. at 396 (internal citation omitted).
Unfortunately, in this case, the state court did not state
on the record its reasons for dismissing the charges. See
Dkt. No. 9 at 2. Furthermore, even if the state court had
stated its reasons on the record, that record is not part
of Plaintiff's pleadings. Accordingly, the Court denies
Defendants' motion to dismiss Plaintiff's common law
malicious prosecution claims for failure to state a claim.
7. Plaintiff's common law libel claim
Defendants argue (1) that Plaintiff has failed to comply
with New York Civil Practice Law and Rules § 3016(a)'s
requirement that a complaint asserting a claim for libel
or slander set forth the particular words complained of
and (2) that, if the Court dismisses all of Plaintiff's federal
claims, it should decline to exercise jurisdiction over his
state claims.
Since federal law governs the procedural issues in this case,
“ ‘the mode of pleading defamation is governed by Rule 8,
Fed.R.Civ.P.” ’ Kelly v. Schmidberger, 806 F.2d 44, 46 (2d
Cir.1986) (quotation omitted). Therefore, the heightened
pleading requirement of New York Civil Practice Law
and Rules § 3016(a) does not apply to this action. See
Silverman v. City of N.Y., No. 98-CV-6277, 2001 WL
218943, *8 (E.D.N.Y. Feb. 2, 2001) (quotation and other
citation omitted). The allegations of libel in Plaintiff's
complaint satisfy Rule 8's requirements of “a short and
plain statement of the claim” and “simple, concise, and
direct” allegations. Fed.R.Civ.P. 8(a), (e)(1); see Dkt. No.
1 at ¶¶ 47-49, 94-96. Furthermore, the Court has not
dismissed all of Plaintiff's federal claims. Accordingly, the
Court denies Defendants' motion to dismiss Plaintiff's libel
claim for failure to state a claim.

IV. CONCLUSION
After carefully considering the file in this matter, the
parties' submissions, and the applicable law, and for the
reasons stated herein, the Court hereby
ORDERS that Defendants' motion to dismiss Plaintiff's
complaint for insufficient service of process is DENIED;
and the Court further
ORDERS that Defendants' motion to dismiss Plaintiff's §
1983 claims against Defendant City of Syracuse for failure
to sufficiently allege municipal liability is DENIED; and
the Court further
ORDERS that Defendants' motion to dismiss Plaintiff's
common law false arrest and false imprisonment claims
for failure to state a claim is GRANTED; and the Court
further
ORDERS that Defendants' motion to dismiss Plaintiff's
§ 1983 false arrest claims for failure to state a claim is
GRANTED; and the Court further
ORDERS that Defendants' motion to dismiss Plaintiff's
§ 1983 First Amendment claims in his second cause of
action is GRANTED; and the Court further
ORDERS that Defendants' motion to dismiss Plaintiff's §
1983 First Amendment claims in his first cause of action
for failure to state a claim is DENIED; and the Court
further
ORDERS that Defendants' motion to dismiss Plaintiff's §
1985(3) claims for failure to state a claim is GRANTED;
and the Court further
*13 ORDERS that Defendants' motion to dismiss
Plaintiff's common law malicious prosecution claims for
failure to state a claim is DENIED; and the Court further
ORDERS that Defendants' motion to dismiss Plaintiff's
common libel claim for failure to state a claim is
DENIED.

IT IS SO ORDERED. 11

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Griffin-Nolan v. Providence Wash. Ins. Co., Not Reported in F.Supp.2d (2005)
2005 WL 1460424

11

The following claims of Plaintiff remain in this action:
(1) § 1983 claims for denial of First Amendment rights
against Defendants City, Mullen, and Hennessey,
alleging that these Defendants arrested him for
speaking to Defendant officers about their conduct in
arresting a third-party; (2) § 1983 claims for failure
to train against Defendant City; (3) common law

End of Document

malicious prosecution claims against all Defendants;
(4) a common law libel claim against Defendant
Hennessey; and (5) a claim for attorney's fees
pursuant to 42 U.S.C. § 1988.

All Citations
Not Reported in F.Supp.2d, 2005 WL 1460424
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11

Irvine v. City of Syracuse, Not Reported in F.Supp.3d (2015)
2015 WL 2401722

2015 WL 2401722
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Jason IRVINE, Plaintiff,
v.
CITY OF SYRACUSE, et al., Defendants.
No. 5:14–CV–1565.
|
Signed May 19, 2015.

defendants Fougnier, Locastro, Walsh, and the City of
Syracuse) are DISMISSED with leave to replead.
If plaintiff intends to the replead the dismissed claims:
(1) he must do so within 30 (thirty) days from the date
of this Decision and Order; and, (2) he should heed the
law referenced by Magistrate Judge Peebles, especially at
pages 20–22 of the Report Recommendation.

IT IS SO ORDERED.
REPORT AND RECOMMENDATION

Attorneys and Law Firms

DAVID E. PEEBLES, United States Magistrate Judge.

Jason Irvine, Auburn, NY, pro se.

This is an action brought by pro se plaintiff Jason Irvine,
who is currently a New York State prison inmate, against
the City of Syracuse, three employees of the Syracuse City
Police Department, and the Onondaga County Sheriff,
pursuant to 42 U.S.C. § 1983, claiming that they violated
his civil rights. Plaintiffs complaint, together with an
accompanying application for leave to proceed in forma
pauperis (“IFP”), have been forwarded to me for review.
For the reasons set forth below, plaintiffs IFP application
is granted, and I recommend that plaintiffs claims against
Onondaga County Sheriff Kevin Walsh, the City of
Syracuse, and Sergeants Brian Fougnier and J.P. Locastro
be dismissed with leave to replead.

DECISION and ORDER
THOMAS J. McAVOY, Senior District Judge.
I. INTRODUCTION
*1 This pro se action brought pursuant to 42 U.S.C. §
1983 was referred to the Hon. David E. Peebles, United
States Magistrate Judge, for initial review. In his April
22, 2015 Report and Recommendation, Magistrate Judge
Peebles recommends that, with the exception of plaintiffs
excessive force and deliberate medical indifference claims
asserted against defendants Liadka and Cazzolli, the
remaining claims be dismissed with leave to replead. No
objections to the Report and Recommendation [dkt. # 9]
have been filed, and the time to do so has expired.

II. DISCUSSION
After examining the record, this Court has determined
that the Report and Recommendation is not subject to
attack for plain error or manifest injustice.

III. CONCLUSION
Accordingly, the Court ADOPTS the Report and
Recommendation [dkt. # 9] for the reasons stated therein.
It is hereby
ORDERED that with the exception of plaintiffs excessive
force and deliberate medical indifference claims asserted
against defendants Liadka and Cazzolli, the remaining
claims in this action (including all of those asserted against

I. BACKGROUND
Plaintiff commenced this action on December 24, 2014.
Dkt. No. 1. The claims set forth in plaintiffs complaint
stem from an incident that occurred on May 11, 2013, and
the events that followed. See generally id. According to
the complaint, on that date plaintiff was confronted by
two unidentified police officers and was thereafter taken
into custody and assaulted. Id. at 6–7. While later being
processed at police headquarters, plaintiff complained of
pain and was escorted by the two officers to Upstate
University Hospital (“Upstate”). Id. at 7. Although it is
not clear from plaintiffs complaint what transpired at the
hospital, he alleges that the officers informed him “that
their [sic] was nothing wrong with him, and that he was
fine in spite of the discharge plan that was denied to
him.” Id. Additionally, although plaintiff contends that
defendants Matthew Liadka and Alexander J. Cazzolli,
both of whom are Syracuse Police Officers, denied his
request for further medical attention, it is not clear from

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1

Irvine v. City of Syracuse, Not Reported in F.Supp.3d (2015)
2015 WL 2401722

the complaint whether defendants Liadka and Cazzolli
are the officers who escorted plaintiff to the hospital, or
if plaintiff requested further medical attention from these
individuals while confined either at police headquarters or
the Onondaga County Justice Center, where plaintiff was
apparently held following his visit to the hospital. Id.
*2 Plaintiff was again taken to Upstate on May 16, 2013,
complaining of pain and swelling. Dkt. No. 1 at 7. Upon
examination and testing, it was determined that plaintiff
had suffered from pulled muscles, sprained ribs, a chest
wall contusion, a swollen spleen, and other injuries as a
result of the assault. Id.
Plaintiff alleges that defendants Brian Fougnier and J.P.
Locastro, both of whom are identified as Syracuse Police
Sergeants, “had a duty and obligation to investigate into
the matters regarding the assault upon [him],” and that
defendant Kevin E. Walsh, the Onondaga County Sheriff,
is liable because defendant Walsh “is responsible for
all Officers within his jurisdiction.” Dkt. No. 1 at 7–8.
According to plaintiff, defendant City of Syracuse “is
liable for the actions of all of its Officials when their [sic]
is a persistent and widespread discriminatory practice[.]”
Id. at 8.

II. DISCUSSION
A. Application to Proceed IFP
When a civil action is commenced in a federal district
court, the statutory filing fee, currently set at $400,
must ordinarily be paid. 28 U.S.C. § 1914(a). A court is
authorized, however, to permit a litigant to proceed IFP
if it determines that he is unable to pay the required filing
fee. 28 U.S.C. § 1915(a)(1). 1 In this instance, because I
conclude that plaintiff meets the requirements for IFP
status, his application is granted. 2
1

2

The total cost for filing a civil action in this court is
$400.00 (consisting of the civil filing fee of $350.00,
see 28 U .S.C. § 1914(a), and an administrative fee
of $50.00). Although an inmate granted IFP status
is not required to pay the $50.00 administrative fee,
he is required to pay, over time, the full amount of
the $350.00 filing fee regardless of the outcome of the
action. See 28 U.S.C. § 1915(b)(3).
Plaintiff is reminded that, although his IFP
application is granted, he is still required to pay fees

that he incurs in this action, including copying and/or
witness fees.

B. Sufficiency of Plaintiff's Claims
1. Standard of Review
Because I have found that plaintiff meets the financial
criteria for commencing this case IFP, I must next consider
the sufficiency of the claims set forth in his complaint
in light of 28 U.S.C. § 1915(e). Section 1915(e) directs
that, when a plaintiff seeks to proceed IFP, “the court
shall dismiss the case at any time if the court determines
that ... the action ... (i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Similarly, 28 U.S.C. § 1915A(b) directs a court to review
any “complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity,” and the court must
“identify cognizable claims or dismiss the complaint,
or any portion of the complaint, if the complaint ...
is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or ... seeks monetary relief
from a defendant who is immune from such relief.” 28
U.S.C. § 1915A(b); see also Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir.2007) (“We have found both sections [1915
and 1915A] applicable to prisoner proceedings in forma
pauperis.” ).
In deciding whether a complaint states a colorable claim,
a court must extend a certain measure of deference in
favor of pro se litigants, Nance v. Kelly, 912 F.2d 605, 606
(2d Cir.1990) (per curiam), and extreme caution should
be exercised in ordering sua sponte dismissal of a pro
se complaint before the adverse party has been served
and the parties have had an opportunity to address the
sufficiency of plaintiffs allegations, Anderson v. Coughlin,
700 F.2d 37, 41 (2d Cir.1983). However, the court also
has an overarching obligation to determine that a claim is
not legally frivolous before permitting a pro se plaintiffs
complaint to proceed. See, e.g., Fitzgerald v. First East
Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000)
(holding that a district court may sua sponte dismiss a
frivolous complaint, notwithstanding the fact that the
plaintiff paid the statutory filing fee). “Legal frivolity ...
occurs where ‘the claim is based on an indisputably
meritless legal theory [such as] when either the claim
lacks an arguable basis in law, or a dispositive defense
clearly exists on the face of the complaint.’ “ Aguilar

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2

Irvine v. City of Syracuse, Not Reported in F.Supp.3d (2015)
2015 WL 2401722

v. United States, Nos. 99–MC–0304, 99–MC–0408, 1999
WL 1067841, at *2 (D.Conn. Nov. 8, 1999) (quoting
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437
(2d Cir.1998)); see also Neitzke v. Williams, 490 U.S. 319,
325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (“[D]ismissal
is proper only if the legal theory ... or factual contentions
lack an arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53
(2d Cir.1995) (“[T]he decision that a complaint is based
on an indisputably meritless legal theory, for the purposes
of dismissal under section 1915(d), may be based upon a
defense that appears on the face of the complaint.”).
*3 When reviewing a complaint under section 1915(e),
the court looks to applicable requirements of the Federal
Rules of Civil Procedure for guidance. Specifically, Rule
8 of the Federal Rules of Civil Procedure provides that
a pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give
fair notice of the claim being asserted so as to permit the
adverse party the opportunity to file a responsive answer,
prepare an adequate defense and determine whether
the doctrine of res judicata is applicable.” Powell v.
Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995)
(McAvoy, J.) (quotation marks and italics omitted).
A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009). Although the court should
construe the factual allegations in a light most favorable to
the plaintiff, “the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable
to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare
recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). Thus, “where the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but
it has not ‘show[n]’—‘that the pleader is entitled to relief.’
“ Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Plaintiff has commenced this action pursuant to 42
U.S.C. § 1983, which “establishes a cause of action for

‘the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws' of the United
States.” German v. Fed. Home Loan Mortg. Corp., 885
F.Supp. 537, 573 (S.D.N.Y.1995) (citing Wilder v. Va.
Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110
L.Ed.2d 455 (1990) (quoting 42 U.S.C. § 1983)). It “ ‘is
not itself a source of substantive rights[,] ... but merely
provides ‘a method for vindicating federal rights elsewhere
conferred[.]’ “ Patterson v. Cnty. of Oneida, 375 F.3d 206,
225 (2d Cir.2004) (quoting Baker v. McCollan, 443 U.S.
137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). To
state a claim pursuant to section 1983, a plaintiff must
allege “(1) ‘that some person has deprived him of a federal
right,’ and (2) ‘that the person who has deprived him of
that right acted under color of state ... law.’ “ Velez v. Levy,
401 F.3d 75, 84 (2d Cir.2005) (quoting Gomez v. Toledo,
446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)).

2. Review of Plaintiff's Claims
Liberally construed, plaintiff's complaint asserts three
causes of action against defendants, including excessive
force, a violation of due process, and deliberate medical
indifference. See generally Dkt. No. 1.

a. Excessive Force
*4 Plaintiff's complaint alleges that the defendants
violated his right under the Eighth Amendment to be free
from cruel and unusual punishment through the use of
excessive force. Dkt. No. 1 at 6–7, 9. It is not clear from the
complaint, however, who committed the alleged assault
against him on May 11, 2013. Id. at 6. Plaintiff alleges
that the same unidentified officers who assaulted him also
escorted him to Upstate the first time and informed him
“their [sic] was nothing wrong with him.” Id. at 6–7. In the
next sentence, plaintiff alleges that “[w]hen [he] requested
to speak with the Medical Staff, regarding his injuries,
he was denied by [defendants] Liadka and Cazzolli [.]”
Id. at 7. Accordingly, liberally construed, it appears the
excessive force claims are asserted against defendants
Liadka and Cazzolli,
The Eighth Amendment prohibits punishments that are
“incompatible with ‘the evolving standards decency that
mark the progress a maturing society[,]’ or ‘involved[s]
the unnecessary in wanton infliction of pain[.]” ‘ Estelle
v. Gamble, 429 U.S. 97, 102–03, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100–
01, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) and Gregg v.

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3

Irvine v. City of Syracuse, Not Reported in F.Supp.3d (2015)
2015 WL 2401722

Georgia, 428 U.S. 153, 169–73, 96 S.Ct. 2909, 49 L.Ed.2d
859 (1976) (citations omitted)). The Eighth Amendment,
however, only applies to individuals convicted of a crime.
See Graham v. Connor, 490 U.S. 386, 395 n. 10, 109
S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“After conviction,
the Eighth Amendment ‘serves as the primary source of
substantive protection ... in cases ... where the deliberate
use of force is challenged as excessive and unjustified.’
“ (quoting Whitley v. Albers, 475 U.S. 312, 327, 106
S.Ct. 1078, 89 L.Ed.2d 251 (1986))). In this case, because
plaintiff had not been convicted of a crime at the time of
the alleged use of excessive force, the Eighth Amendment
does not apply to his excessive force claim. Instead, claims
of excessive force during the course of an arrest are
analyzed under the Fourth Amendment. Tenn. v. Garner,
471 U.S. 1, 7–22, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985);
accord, Graham, 490 U.S. at 395 (1989) (“Today we make
explicit what was implicit in Garner's analysis, and hold
that all claims that law enforcement officers have used
excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment[.]”).
A police officer's use of force is excessive in violation of
the Fourth Amendment “if it is objectively unreasonable
‘in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.’
“ Maxwell v. City of N.Y., 380 F.3d 106, 108 (2d Cir.2004)
(quoting Graham, 490 U.S. at 397). With this standard in
mind, and having carefully review plaintiff's complaint, I
find that the pleading contains sufficient facts to survive
review under section 1915(e). In so ruling, I express no
opinion regarding whether the excessive force claim as
asserted in the complaint may withstand a properly filed
motion to dismiss or for summary judgment.

b. Due Process
*5 Plaintiff also asserts a due process claim against
the defendants, alleging they violated his rights by
participating in the use of allegedly excessive force “and/
or covering up the use of excessive force[.]” Dkt. No. 1
at 9. Construed liberally, it appears plaintiff asserts this
claim against defendants Liadka and Cazzolli for their
participation in the use of force and against unidentified
individuals for their alleged concealment of evidence
regarding the use of force. Dkt. No. 1 at 7, 9.
The Due Process Clause of the Fourteenth Amendment
contains both a substantive and procedural component.
Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975,

108 L.Ed.2d 100 (1990). The substantive component
“bars certain arbitrary, wrongful government actions
‘regardless of the fairness of the procedures used to
implement them.’ “ Zinermon, 494 U.S. at 125 (quoting
Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88
L.Ed.2d 662 (1986)); see also Kaluczky v. City of White
Plains, 57 F.3d 202, 211 (2d Cir.1995) ( “Substantive
due process protects against government action that
is arbitrary, conscience-shocking, or oppressive in a
constitutional sense, but not against government action
that is incorrect or ill-advised.” (quotation marks
omitted)). Courts analyzing substantive due process
claims must first “identify the constitutional right at
stake.” Kaluczky, 57 F.3d at 211. “Where a [section] 1983
plaintiff alleges a cause of action protected by an explicit
textual source of the Constitution, that Amendment, not
the more generalized notion of substantive due process,
must be the guide for analyzing that claim.” Id. (quotation
marks omitted).
Plaintiff's claim against defendants Liadka and Cazzolli
must fail because, as discussed above in Part II.B.2.a.,
it is rooted in the Fourth Amendment and does not
state a generalized violation of substantive due process.
As for plaintiffs claim asserted against the unidentified
defendants regarding a “cover[ ] up,” even assuming
this allegation implicates plaintiffs constitutional rights,
it must fail because plaintiff merely alleges that “the
defendants ... cover[ed] up the use of excessive force
and assault against [him]” without either identifying
which individuals, in particular, participated in the cover
up or alleging any facts to support this conclusory
allegation. Without more, plaintiffs due process claim
fails to allege facts plausibly suggesting that any of the
named defendants violated plaintiffs due process rights.
Accordingly, I recommend that plaintiffs due process
claims be dismissed.

c. Deliberate Medical Indifference
Plaintiff also asserts a claim of deliberate medical
indifference against defendants Liadka and Cazzolli.
Dkt. No. 1 at 7. Because at the time plaintiff
requested medical attention, he was pretrial detainee,
his medical indifference claims are governed by the due
process clause of the Fourteenth Amendment. Cuoco v.
Moritsugu, 222 F.3d 99, 106 (2d Cir.2000). To state a
cognizable deliberate medical indifference claim under
the Fourteenth Amendment, a plaintiff must allege facts
plausibly suggesting that he “had a serious medical

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4

Irvine v. City of Syracuse, Not Reported in F.Supp.3d (2015)
2015 WL 2401722

condition that was met with deliberate indifference.”
Cuoco, 222 F.3d at 106 (quotation marks omitted).
*6 In this case, plaintiff alleges that defendants Liadka
and Cazzolli denied his request for medical attention after
he was taken into custody and complained of pain. Dkt.
No. 1 at 7. Plaintiff also alleges that, once he was provided
medical treatment, testing revealed that he “suffered from
pulled muscles, sprained ribs, a chest wall contusion,
swollen spleen, and other injuries due to the assault” by
the defendant police officers. Id. I find these allegations
are sufficient to survive review at this early procedural
juncture under section 1915(e), and defendants should be
required to respond to this portion of plaintiff's complaint.
Once again, in so ruling, I express no opinion regarding
whether the medical indifference claim as asserted in
the complaint may withstand a properly filed motion to
dismiss or for summary judgment.

d. Municipal Liability
Plaintiff's claims against defendant City of Syracuse
implicate municipal liability under Monell v. N.Y. City
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658,
691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To state a
claim against a municipality fora constitutional violation
pursuant to section 1983, a plaintiff must allege that “the
action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation,
or decision officially adopted and promulgated by [the
municipality's] officers.” Monell, 436 U.S. at 690. A
municipality, however, cannot be held liable under section
1983 for the “actions alleged to be unconstitutional by its
employees below the policymaking level on the basis of
respondeat superior.” Zahra v. Town of Southbold, 48 F.3d
674, 685 (2d Cir.1995); see also Monell, 436 U.S. at 691.
To prevail on a section 1983 claim against a municipality,
a plaintiff must demonstrate that the policy, ordinance,
regulation, or decision adopted by the municipality, and
implemented by its employee(s), caused the plaintiffs
alleged constitutional deprivation. Monell, 436 U.S. at
691–92. This can be shown by establishing either that the
policy itself is unconstitutional or that the application of
an otherwise unlawful policy is unconstitutional. Amnesty
Am. v. Town of Hartford, 361 F.3d 113, 125–25 (2d
Cir.2004).
In this instance, plaintiff's complaint only alleges
in conclusory terms that defendant City of
Syracuse promulgated a “a persistent and widespread

discriminatory practice[.]” Dkt. No. 1 at 8. Plaintiff
has failed to identify a specific practice or policy,
however, pursuant to which defendants Liadka and
Cazzolli allegedly assaulted him. Id. Indeed, quite to
the contrary, plaintiff characterizes those officers as
“rogue agents with no regard for the rules, policies,
or procedures set forth by the City of Syracuse Police
Department Operations Manual.” Id. While it is true
that a municipality can be held accountable for the
excessive use of force by a police officer upon proof
that the municipality's policymakers were “knowingly
and deliberately indifferent to the possibility that its
police officers were wont” to commit constitutional
violations, there are no allegations in plaintiff's complaint
in this case that plausibly suggest defendant City of
Syracuse possessed that specific knowledge with respect to
defendants Liadka and Cazzolli. 3 See, e.g., Fiacco v. City
of Rensselaer, N.Y., 783 F.2d 319, 326–27 (2d. Cir.1986).
3

In addition, it is well-established that a single incident
is generally insufficient to raise the inference of the
existence of a custom of policy potentially giving rise
to admissible liability. Dwares v. City of N.Y., 985
F.2d 94, 100 (2d Cir.1993), overruled on other grounds
by Leatherman v. Tarrant Cnty. Narcotics Intelligence
& Coordination Unit, 507 U.W. 163 (1993); but see
Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir.1980)
(noting that, where a plaintiff alleges excessive force
by police, “a single, unusually brutal or egregious
beating administered by a group of municipal
employees may be sufficiently out of the ordinary
to warrant an inference that it was attributable to
inadequate training or supervision amounting to
deliberate indifference or ‘gross negligence’ on the
part of officials in charge”). In this instance, plaintiff's
allegations fail to support the conclusion that the
exception to this general rule should apply.

*7 Municipal liability may also attach based upon the
failure of a municipality to properly train “its employees
where [the governmental agency] acts with deliberate
indifference in disregarding the risk that its employees
will unconstitutionally apply its policies without more
training.” Amnesty Am., 361 F.3d at 129 (citing City of
Canton, Ohio v. Harris, 489 U.S. 378, 387–90, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989)). To establish liability under
this theory, however, a plaintiff must identify a particular
deficiency in the municipality's training regimen that “
‘actually caused’ “ a constitutional deprivation. Amnesty
Am., 361 F.3d at 129 (quoting City of Canton, Ohio, 489
U.S. at 390–91); see also Birdsall v. City of Hartford, 249

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Irvine v. City of Syracuse, Not Reported in F.Supp.3d (2015)
2015 WL 2401722

F.Supp.2d 163, 173 (D.Conn.2003). As the Second Circuit
has noted,
[t]he elements of an identified
training deficiency and a close causal
relationship, which together require
the plaintiffs to prove that the
deprivation occurred as the result of
a municipal policy rather than as a
result of isolated misconduct by a
single actor, ensure that a failure to
train theory does not collapse into
respondeat superior liability.
Amnesty Am., 361 F.3d at 130. In this instance,
plaintiff's complaint does not allege any specific
inadequacy in the training protocols of the Syracuse City
Police Department, nor does it contain other factual
allegations plausibly suggesting that municipality liability
is applicable based on a failure-to-train theory. I therefore
recommend that plaintiff's Monell claim against defendant
City of Syracuse be dismissed.

e. Remaining Claims Asserted Against Defendants
Fougnier, Locastro, and Walsh
Although plaintiff names defendant Walsh in his
complaint, it is not clear what cause of action is
being asserted against him. The only allegation in the
complaint that involve Sheriff Walsh states that he,
“as the County Sheriff [,] is responsible for all Officers
within his jurisdiction, and to ensure that they are
properly trained and of sound mental health in which
to do their duties to the community.” Dkt. No. 1
at 7. Whatever the nature of the claim plaintiff has
attempted to assert against defendant Walsh may be,
it is clear he intends to assert the claim based on
Walsh's capacity as the head of the Onondaga County
Sheriffs Department. Similarly, to the extent that plaintiffs
complaint may be construed as asserting any claims
against defendants Fougnier and Locastro, they are based
on those individuals' supervisory capacities. Specifically,
plaintiff's complaint alleges defendants Fougnier and
Locastro are the “immediate supervisors” of defendants
Liadka and Cazzolli and “had a duty and obligation to
investigate into the matters regarding the assault upon
[him] by the Officers.” Id.
Setting aside the fact that defendant Walsh is the
Onondaga County Sheriff and does not supervise police

officers employed by the City of Syracuse, it is well
established that, as supervisors, defendants Fougnier,
Locastro, and Walsh cannot be held liable for damages
under section 1983 solely by virtue of their roles as
supervisors, nor can their liability be predicated upon
respondeat superior. Richardson v. Goord, 347 F.3d
431, 435 (2d Cir.2003); Wright v. Smith, 21 F.3d 496,
501 (1994). To establish responsibility on the part of
a supervisory official for a civil rights violation, a
plaintiff must demonstrate that the individual (1) directly
participated in the challenged conduct; (2) after learning
of the violation through a report or appeal, failed to
remedy the wrong; (3) created or allowed to continue a
policy or custom under which unconstitutional practices
occurred; (4) was grossly negligent in managing the
subordinates who caused the unlawful event; or (5) failed
to act on information indicating that unconstitutional acts
were occurring. Iqbal v. Hasty, 490 F.3d 143, 152–53 (2d
Cir.2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal,
556 U.S. 554 (2009); see also Richardson, 347 F.3d at 435;
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright,
21 F.3d at 501.
*8 In this instance, there are no allegations in plaintiff's
complaint suggesting that defendants Fougnier, Locastro,
or Walsh participated in or witnessed the use of excessive
force, or that, while the event was ongoing, they
learned of it but failed to act to protect him from
harm. See generally Dkt. No. 1. Moreover, because the
only facts alleged involving these individuals concerns
their roles and obligations as supervisors and are set
forth in wholly conclusory fashion, there is no basis
for a section 1983 claim against them. See, e.g., id.
at 9 (“THE PLAINTIFF ALLEGES AGAINST THE
DEFENDANTS THAT THEY FAILED IN THEIR
SUPERVISORY CAPACITY TO OVERSEE AND
SUPERVISE THEIR OFFICERS, AND STAFF ...
THROUGH THEIR GROSS NEGLIGENCE [.]”).
Under these circumstances I recommend that plaintiffs
claims against defendants Fougnier, Locastro, and Walsh
be dismissed for lack of personal involvement.

C. Whether to Permit Amendment
Ordinarily, a court should not dismiss a complaint filed
by a pro se litigant without granting leave to amend
at least once “when a liberal reading of the complaint
gives any indication that a valid claim might be stated.”
Branum v. Clark, 927 F.2d 698, 704–05 (2d Cir.1991);
see also Fed.R.Civ.P. 15(a) ( “The court should freely

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Irvine v. City of Syracuse, Not Reported in F.Supp.3d (2015)
2015 WL 2401722

give leave when justice so requires.”); see also Mathon
v. Marine Midland Bank, N.A., 875 F.Supp. 986, 1003
(E.D.N.Y.1995) (permitting leave to replead where court
could “not determine that the plaintiffs would not,
under any circumstances, be able to allege a civil RICO
conspiracy”). Here, given the procedural history of this
action, the court must determine whether plaintiff is
entitled to the benefit of this general rule.
Most of the deficiencies identified in plaintiff's complaint
could feasibly be cured through the inclusion of greater
factual detail in his pleading. Accordingly, I recommend
that plaintiff be permitted to amend his complaint, if
desired, to address the deficiencies identified in this report.
In the event plaintiff chooses to file an amended
complaint, he is advised that the law in this circuit
clearly provides that “ ‘complaints relying on the civil
rights statutes are insufficient unless they contain some
specific allegations of fact indicating a deprivation of
rights, instead of a litany of general conclusions that
shock but have no meaning.’ “ Hunt v. Budd, 895 F.Supp.
35, 38 (N.D.N.Y.1995) (McAvoy, J.) (quoting Barr v.
Abrams, 810 F.2d 358, 363 (2d Cir.1987)); Pourzandvakil
v. Humphry, No. 94–CV–1594, 1995 WL 316935, at
*7 (N.D.N.Y. May 22, 1995) (Pooler, J .). Therefore,
in his amended complaint, plaintiff must clearly set
forth the facts that give rise to the claim, including
the dates, times, and places of the alleged underlying
acts, and each individual who committed each alleged
wrongful act. In addition, the revised pleading should
allege facts demonstrating the specific involvement of
each of the named defendants in the constitutional
deprivations alleged in sufficient detail to establish that
they were tangibly connected to those deprivations. Bass
v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). Finally,
plaintiff is informed that any such amended complaint
will replace the existing complaint, and must be a wholly
integrated and complete pleading that does not rely upon
or incorporate by reference any pleading or document
previously filed with the court. See Shields v. Citytrust
Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994) (“It is
well established that an amended complaint ordinarily
supersedes the original, and renders it of no legal
effect.” (quotation marks omitted)).

*9 Plaintiff's complaint in this action asserts excessive
force claims against two Syracuse Police Officers,
Matthew Liadka and Alexander Cazzolli, and derivative
claims against Syracuse Police Sergeants Brian Fougnier
and J.P. Locastro, as well as Onondaga County Sheriff
Kevin E. Walsh and the City of Syracuse, alleging that
they were aware of but failed to remedy the constitutional
deprivation, and that the violations occurred as a result
of a failure to properly train and supervise defendants
Liadka and Cazzolli. Having carefully reviewed plaintiff's
complaint I conclude that, with the exception of his
excessive force and deliberate medical indifference claims
asserted against defendants Liadka and Cazzolli, plaintiffs
claims should be dismissed with leave to amend.
Based upon the foregoing, it is hereby
ORDERED that plaintiff's application for leave to
proceed in this action in forma pauperis (Dkt. No. 2) is
GRANTED; and it is further hereby respectfully
RECOMMENDED that, with the exception of his
excessive force and deliberate medical indifference
claims asserted against defendants Liadka and Cazzolli,
plaintiff's remaining claims in this action, including all
of those asserted against defendants Fougnier, Locastro,
Walsh, and the City of Syracuse, be DISMISSED, with
leave to replead.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
may lodge written objections to the foregoing report.
Such objections must be filed with the clerk of the
court within FOURTEEN days of service of this report.
FAILURE TO SO OBJECT TO THIS REPORT WILL
PRECLUDE APPELLATE REVIEW. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette,
984 F.2d 85 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a
copy of this report and recommendation upon the parties
in accordance with this court's local rules.

Dated: April 22, 2015.
All Citations
Not Reported in F.Supp.3d, 2015 WL 2401722

IV. SUMMARY AND RECOMMENDATION

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Irvine v. City of Syracuse, Not Reported in F.Supp.3d (2015)
2015 WL 2401722

End of Document

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8

Santagata v. City of New York, Slip Copy (2017)
2017 WL 2963453

2017 WL 2963453
Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States District Court,
E.D. New York.
Thomas Anthony SANTAGATA, Jr., Plaintiff,
v.
CITY OF NEW YORK, New York Police
Department, Officers Edgardo Diaz and Ryan
McAvoy, Legal Aid Society, Defendants.
17-CV-3053 (PKC) (CLP)
|
Signed 07/11/2017

Plaintiff's car. (Id. at 4.) Plaintiff also alleges that Officer
Diaz “manipulated” evidence by loosening the blade of
the knife found in Plaintiff's car and thereby causing
Plaintiff to be charged with possession of a gravity knife.
(Id.)
On July 22, 2015, Plaintiff alleges that Officer McAvoy
—who came to his house in response to neighbors'
911 calls complaining about Plaintiff—entered Plaintiff's
home without a warrant by breaking down the front door
and then arrested Plaintiff. (Id. at 5.) The charges related
to both arrests were allegedly dismissed. Id.
Plaintiff further alleges that the Legal Aid Society
committed “legal malpractice” by failing to challenge the
civil forfeiture of his vehicle, a 2000 Ford Mustang. Id. at
5. He seeks unspecified damages. Id.

Attorneys and Law Firms
Thomas Anthony Santagata, Jr., Gouverneur, NY, pro se.

MEMORANDUM & ORDER
Pamela K. Chen, United States District Judge
*1 On April 12, 2017, Plaintiff Thomas Anthony
Santagata, Jr., currently incarcerated at Gouverneur
Correctional Facility, filed this pro se action against
Defendants. By Order dated May 15, 2017, the United
States District Court for the Southern District of New
York transferred the action to this Court. The Court
grants Plaintiff's request to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a). For the reasons stated
below, the Complaint is dismissed as to Defendants the
City of New York (“the City”), the New York [City] Police
Department (“the NYPD”), and the Legal Aid Society.

BACKGROUND
Plaintiff alleges that he was falsely arrested on November
6, 2014, by NYPD Officer Edgardo Diaz, and that he
was again falsely arrested on July 22, 2015, by NYPD
Officer Ryan McAvoy. (See Complaint (“Compl.”), Dkt.
2, at 4-5.) On November 6, 2014, according to Plaintiff's
Complaint, Officer Diaz grabbed Plaintiff, who was
sitting in his vehicle in his driveway, searched Plaintiff's
pockets and his car, and then arrested him after finding
one knife on Plaintiff and another in the armrest of

STANDARD OF REVIEW
A complaint must plead “enough facts to state a claim
to relief that is plausible on its face,” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007), and “allow[ ] the
court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). At the pleading stage of the
proceeding, the Court must assume the truth of “all
well-pleaded, nonconclusory factual allegations” in the
complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d
111, 123 (2d Cir. 2010) (citing Iqbal, 556 U.S. at 678).
Although all allegations contained in the complaint are
assumed to be true, this tenet is “inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. In addition, a pro
se complaint is “to be liberally construed,” Ahlers v.
Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012), and interpreted
“to raise the strongest arguments that [it] suggest [s],”
Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996); see
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (“submissions of a pro se litigant must be
construed liberally and interpreted to raise the strongest
arguments that they suggest”) (internal citations and
quotations omitted). However, pursuant to the in forma
pauperis statute, the Court must dismiss a complaint if it
determines that the action “(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Courts generally should not dismiss a pro se complaint

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Santagata v. City of New York, Slip Copy (2017)
2017 WL 2963453

without granting the plaintiff leave to amend if a valid
claim could be stated. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000).

DISCUSSION
*2 The Court construes the Complaint to assert, under 42
U.S.C. § 1983, claims of false arrest, false imprisonment,
unlawful searches and seizure in violation of the Fourth
Amendment, fabrication of evidence, and malicious
prosecution. The Court also construes the Complaint to
assert a claim of municipal liability, i.e., a Monell claim,
against the City, based on his Section 1983 claims.

I. Dismissal of Monell Claim Against the City
A municipality may be liable under Section 1983 if a
municipal “policy or custom” causes “deprivation of
rights protected by the Constitution.” Monell v. Dep't of
Soc. Servs. of City of N.Y., 436 U.S. 658, 690–91 (1978);
see also Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d
Cir. 2012). For a Monell claim to survive a motion to
dismiss, a plaintiff must allege “sufficient factual detail”
and not mere “boilerplate allegations” that the violation
of the plaintiff's constitutional rights resulted from the
municipality's custom or official policy. Plair v. City of
New York, 789 F. Supp. 2d 459, 469 (S.D.N.Y. 2011)
(collecting cases). A plaintiff must show the existence of an
officially adopted policy or custom that caused injury and
a direct causal connection between that policy or custom
and the deprivation of a constitutional right. Monell, 436
U.S. at 690–94. Here, Plaintiff fails to allege any facts
to show that the Defendant officers acted pursuant to
any municipal policy or custom. Therefore, Plaintiff's
Complaint against the City is dismissed for failure to
state a claim pursuant to 28 U.S.C. §§ 1915A; 1915(e)(2)
(B). See Plair v. City of N.Y., 789 F. Supp. 2d 459, 469
(S.D.N.Y. 2011) (“Following Iqbal and Twombly, Monell
claims must satisfy the plausibility standard....”); see also
Meehan v. Kenville, 555 Fed.Appx. 116, 117 (2d Cir. 2014)
(summary order) (claim against municipal entity was
properly dismissed under 28 U.S.C. § 1915 for “failure to
plausibly allege that any constitutional violation resulted
from a custom, policy or practice of the municipality”).

II. Dismissal of Claims Against the NYPD
Plaintiff's claims against the NYPD must be dismissed
because it is not a suable agency of the City. Section

396 of the New York City Charter provides that “[a]ll
actions and proceedings for the recovery of penalties for
the violation of any law shall be brought in the name
of the city of New York and not in that of any agency,
except where otherwise provided by law.” N.Y.C., N.Y.
Charter ch. 17, § 396. That provision has been construed
to mean that the NYPD is not a suable entity. See, e.g.,
Jenkins v. City of N.Y., 478 F.3d 76, 93 n.19 (2d Cir. 2007)
(NYPD not a suable entity); Lopez v. Zouvelos, No. 13 CV
6474 (MKB), 2014 WL 843219, at *2 (E.D.N.Y. Mar. 4,
2014) (dismissing all claims against the NYPD); Johnson
v. N.Y.C. Police Dep't, No. 12 CV 5423 (BMC), 2012
WL 5607505, at *3 (E.D.N.Y. Nov. 15, 2012). For this
reason, Plaintiff's claims against the NYPD are dismissed
for failure to state a claim. 28 U.S.C. §§ 1915A; 1915(e)(2)
(B).

III. Dismissal of Claims Against the Legal Aid Society
The Legal Aid Society is not a State actor amenable to suit
under Section 1983. See Caroselli v. Curci, 371 Fed.Appx.
199, 201 (2d Cir. 2010) (summary order); see also Schnabel
v. Abramson, 232 F3d 83, 87 (2d Cir. 2000) (“a legal aid
society ordinarily is not a state actor amenable to suit
under § 1983.”); Szabo v Legal Aid Soc'y., No. 17-MC-219
(PKC), 2017 WL 1401296, at *4 (E.D.N.Y. Apr. 19, 2017)
(citing cases); Daniel v. Safir, 135 F.Supp.2d 367, 374
(E.D.N.Y. 2001). Thus, Plaintiff's claim against the Legal
Aid Society is dismissed for failure to state a claim. 28
U.S.C. §§ 1915A; 1915(e)(2)(B).

CONCLUSION
*3 Accordingly, the Complaint, filed in forma pauperis,
is dismissed as to the City of New York, the New York
Police Department, and the Legal Aid Society pursuant
to 28 U.S.C. §§ 1915A; 1915(e)(2)(B). No summons shall
issue as to these Defendants.
Plaintiff's claims against Police Officer Edgardo Diaz,
Shield No. 9558, of the 122th Precinct, and Police Officer
Ryan McAvoy, Shield No. 7039, of the 122 Precinct,
alleging false arrest, false imprisonment, violation of
his Fourth Amendment Right against “unreasonable
searches and seizures,” and intentional infliction of
emotional distress shall proceed. The Clerk of Court is
directed to prepare a summons against Police Officers
Diaz and McAvoy, and the United States Marshals

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Santagata v. City of New York, Slip Copy (2017)
2017 WL 2963453

Service is directed to serve the summons and complaint
upon these defendants without prepayment of fees.
The Clerk of Court is respectfully directed to serve a copy
of this Order, a copy of the Complaint, and a copy of the
in forma pauperis application on the Corporation Counsel
for the City of New York, Special Federal Litigation
Division. The Clerk of Court is also respectfully directed
to mail a copy of this Order to Plaintiff. The case is
respectfully referred to the Honorable Cheryl L. Pollak,
United States Magistrate Judge, for pretrial supervision.

End of Document

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith and therefore
in forma pauperis status is denied for the purpose of any
appeal. Coppedge v. United States, 369 U.S. 438, 444–45
(1962).
SO ORDERED.

All Citations
Slip Copy, 2017 WL 2963453

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