Hester v. City of Oneida et al

Filing 4

ORDER and REPORT AND RECOMMENDATION re 1 Complaint filed by Ronald Hester: ORDERED that Plaintiff's 2 motion to proceed in forma pauperis is GRANTED; RECOMMENDED that Plaintiff's Fourth Amendment claim based on the body cavity search ag ainst Det. Salle and Officer White SURVIVES sua sponte review; RECOMMENDED that Plaintiff's Fourth Amendment false arrest and false imprisonment claims against Det. Salle, Officer Zonevylle, and Officer Page be DISMISSED WITH LEAVE TO AMEND; and ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). ( Objections to R&R due by 11/28/2023, Case Review Deadline 12/1/2023) Signed by Magistrate Judge Therese Wiley Dancks on 11/14/2023. (Copy served upon Ronald Hester via regular mail on 11/14/2023)(see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
RONALD HESTER,
Plaintiff,
v.

6:23-cv-01171-AMN-TWD

CITY OF ONEIDA et al.,
Defendants.
_____________________________________________
APPEARANCES:
RONALD HESTER
Plaintiff, pro se
2723 Emerson Lane
Kissimmee, FL 34743
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
I.

INTRODUCTION
The Clerk has sent the Court a civil rights complaint filed by Ronald Hester (“Plaintiff”)

for initial review pursuant to 28 U.S.C. § 1915. (Dkt. No. 1.) Plaintiff also filed a motion to
proceed in forma pauperis (“IFP”). (Dkt. No. 2.)
II.

IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. (Dkt.

No. 2.) After reviewing Plaintiff’s application, this Court finds he is financially eligible for IFP
status. Therefore, Plaintiff’s IFP application is granted.

III.

STANDARD OF REVIEW
Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss

legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v.
Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The Court shall dismiss a complaint in a civil action
if the Court determines it is frivolous, 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).
A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a
finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437
(2d Cir. 1998) (“[A]n action is ‘frivolous’ when either: (1) the factual contentions are clearly
baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).
To survive dismissal for failure to state a claim, a complaint 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).
This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at
570. “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). The statement of the claim must do more than
present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant
fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555
(internal quotation marks and citations omitted); see also Fed. R. Civ. P. 8(a)(2).

2

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).
“[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.
Moreover, a court should not dismiss a pro se complaint “without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)
(citation and internal quotation marks 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 v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
IV.

BACKGROUND
A.

The Arrest, Search, and Questioning of Plaintiff

On the morning of January 5, 2023, Det. Salle 1 of the Rome Police Department was
conducting surveillance in the “500 block” of North Madison Street in Oneida County in relation
to a recent “shots fired” investigation. (Dkt. No. 1 at 5; Dkt. No. 1-1 at 2.) During the
surveillance of the residence located at 506 North Madison Street, Det. Salle observed two black
males and one white female exit the residence and enter a red Honda sedan. (Dkt. No. 1 at 5;
Dkt. No. 1-1 at 2.) Det. Salle contacted other members of the Rome Police Department and
relayed that the sedan had an expired Florida registration; the owner of the sedan, Plaintiff, had a

1

Although Det. Salle’s last name is spelled “Salley” in the caption of the complaint, the Court
uses the spelling provided in the attached state court opinion. (Dkt. No. 1-1 at 1-13.) The Clerk
is directed to correct the spelling to Salle on the docket.
3

suspended New York Driver’s License; and Jessica Reed was driving the vehicle. (Dkt. No. 1 at
5.) Officers Page and Zonnevylle conducted a traffic stop of the sedan due to its expired
registration in the “400 block” of North George Street. Id. Ms. Reed told the officers she had a
suspended license. Id. at 5, 7. The officers took Ms. Reed into custody and placed her in the
back of the patrol vehicle. Id. at 7.
Per his bodycam footage, Officer Page spoke with the two black males who were still in
the vehicle. Id. Plaintiff was sitting in the front passenger seat and identified himself to Officer
Page. Id. Upon being told the vehicle was being towed, Plaintiff and the other man exited the
vehicle. Id. Because they were not detained, they left the scene shortly after exiting the vehicle.
Id.
According to Officer Page, he began an inventory search of the vehicle pursuant to Rome
Police Department policy prior to the arrival of the tow truck. Id. However, Officer Page “did
not complete the inventory record of the entire contents of the vehicle.” (Dkt. No. 1 at 7; Dkt.
No. 1-1 at 3.) As Officer Page “searched for ‘something big,’” he came across a handgun in the
spare tire compartment of the vehicle. (Dkt. No. 1-1 at 3.) Per his bodycam footage, Officer
Page told Officer Zonnevylle he ceased the inventory search upon finding the gun. Id. Officer
Zonnevylle later testified he completed the inventory search record of the vehicle the next day.
Id.
After securing the gun, the police located Plaintiff and took him into custody. Id. at 4.
While at the Rome Police Station, Det. Salle read Plaintiff his Miranda warnings. Id. Plaintiff
stated he understood his rights and agreed to speak with the detective. Id.
Det. Salle interviewed Plaintiff twice. Id. At the first interview, Plaintiff denied any
knowledge of the recovered gun. Id. Plaintiff then underwent a visual body cavity search. Id.

4

Plaintiff was directed to remove his clothes and then squat and cough in the presence of
Officer White. Id. Officer White observed a “foreign object” under Plaintiff’s scrotum and
directed him to remove the item and place it on the floor. Id. The item was suspected to be
cocaine. Id.
Det. Salle later testified the search was conducted “based solely on [Plaintiff’s] history
for a drug offense and no other reason.” Id. On the police department’s “Unclothed Search
Form,” Det. Salle indicated “the sole reason the unclothed search was performed was based upon
the fact that [Plaintiff’s] criminal history showed him having an undated ‘CSCS 3rd’ offense.”
Id.
After the visual body cavity search, Det. Salle interviewed Plaintiff again and Plaintiff
discussed the recovered gun. Id.
B.

Suppression of Certain Evidence

Plaintiff was indicted for Criminal Possession of a Controlled Substance in the Third
Degree; Criminal Possession of a Weapon in the Second Degree; and Criminal Possession of a
Firearm. Id. at 1. Plaintiff moved to suppress certain oral statements he made to law
enforcement personnel “involuntarily” and certain evidence that was allegedly seized in violation
of his constitutional rights. Id.
Hon. Robert L. Bauer of Oneida County Court found the inventory search of Plaintiff’s
car was not legal as it was equivalent to an “impermissible ‘general rummaging’ to discover
incriminating evidence” and accordingly suppressed the recovered gun from evidence. Id. at 9
(citation omitted).
Judge Bauer further found previous drug offenses from nine years ago, standing alone
“with no further ‘specific, articulable, factual basis supporting a reasonable suspicion to believe

5

the arrestee secreted evidence inside a body cavity’ [were] not enough to justify the distinctly
elevated level of intrusion’” of the visual body cavity search and accordingly suppressed the
cocaine recovered from Plaintiff’s person. Id. at 10 (citation omitted).
Additionally, Judge Bauer found the statements Plaintiff made to the officers at the scene
prior to his arrest were voluntarily made, were not subject to Miranda, were not in violation of
Plaintiff’s constitutional rights, and would be admissible at trial. Id. at 11.
However, Judge Bauer held “those statements [Plaintiff] made after having duly waived
his [Miranda] rights resulted from the aforementioned illegal searches and are accordingly
suppressed as fruit of the poisonous tree.” Id. at 12 (citations omitted). Judge Bauer noted
the testimony and evidence admitted at the hearing, the police
actions in stopping the Honda and impounding same as no valid
driver was on scene, to searching its contents and finding the gun,
then subsequently directing that defendant be taken into custody,
Mirandized and interviewed regarding the recovered gun, then
strip searched whereupon drugs were recovered, which led to
defendant’s second interview, constituted one continuous chain of
events.

Id.

Further, there was nothing in the record “to show the taint of the illegal search of the
vehicle had become attenuated so that the gun would have been independently discovered or that
for any other reason the gun was not come by exploitation of that illegality.” Id. (internal
quotation marks and citations omitted). Judge Bauer applied the same reasoning to the “illegal,
invasive search” of Plaintiff’s person which yielded cocaine. Id. at 13.
C.

The Current Action

Plaintiff commenced this action on September 12, 2023, against the City of Oneida, the
Rome Police, the Oneida County Police, the Oneida County Sheriff’s Department, Det. Salle,
Officer Zonnevylle, Officer Page, and Officer White alleging violations of his Fourth

6

Amendment rights, false arrest, false imprisonment, and an illegal cavity search of his person.
(Dkt. No. 1 at 6.) He seeks $5,000,000 in damages and “the [s]uspension and/or [t]ermination of
all officers involved.” Id.
V.

DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of

action for “the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws of the United States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990)
(internal quotations and citations omitted). To state a valid claim under 42 U.S.C. § 1983, a
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). To establish liability under the statute, a plaintiff must plead that each government
official defendant violated the Constitution through that official’s own individual actions.
Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). An official may not be held liable for
constitutional violations simply because he held a high position of authority. Victory v. Pataki,
814 F.3d 47, 67 (2d Cir. 2016). “Section 1983 claims against municipal employees sued in their
official capacity are treated as claims against the municipality itself.” Ortiz v. Wagstaff, 523 F.
Supp. 3d 347, 361 (W.D.N.Y. 2021) (internal quotations and citation omitted). A municipality
cannot be held liable under Section 1983 unless the challenged action was undertaken pursuant
to a municipal policy, custom, or practice. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436
U.S. 658, 694 (1978).
A.

City of Oneida

To begin, Plaintiff’s claims against the City of Oneida must be dismissed. A
municipality can be liable under § 1983 only if a plaintiff can show that a municipal policy or
7

custom caused the deprivation of his constitutional rights. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690–91 (1978). The doctrine of respondeat superior cannot be used to establish
municipal liability. Connick v. Thompson, 563 U.S. 51, 60 (2011); Cash v. County of Erie, 654
F.3d 324, 333-34 (2d Cir. 2011); Dzugas–Smith v. Southhold Union Free School Dist., No. 08
CV 1319, 2012 WL 1655540, at *20 (E.D.N.Y. May 9, 2012). Here, Plaintiff does not allege,
and nothing in his complaint suggests, that any of the allegedly wrongful acts or omissions on
the part of any City employee are attributable to a municipal policy or custom. Thus, Plaintiff
has not made a showing, in his pleadings, sufficient to impose Monell liability on the City of
Oneida. See Hayward v. City of New York, No. 12-CV-3220 ENV, 2012 WL 3580286, at *1
(E.D.N.Y. Aug. 17, 2012). Therefore, the Court recommends dismissing the complaint against
the City of Oneida without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
B.

Oneida County Police, Oneida County Sheriff’s Department, and Rome
Police

Plaintiff lists Oneida County Police, Oneida County Sheriff’s Department, and Rome
Police as defendants in the caption of his complaint. A “police department cannot sue or be sued
because it does not exist separate and apart from the municipality and does not have its own legal
identity.” Baker v. Willett, 42 F. Supp. 2d 192, 198 (N.D.N.Y. 1999) (dismissing claims against
county sheriff’s department) (citations omitted); see also Jackson v. Cty. of Nassau, No. 07-CV245, 2010 WL 335581, at *5 (E.D.N.Y. Jan. 22, 2010) (“Under New York law, departments
which are merely administrative arms of a municipality do not have a legal identity separate and
apart from the municipality and cannot sue or be sued.”); see, e.g., La Grande v. Town of
Bethlehem Police Dep’t, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y.
Sept. 1, 2009) (“Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. §
1983, [the plaintiff’s] [c]omplaint is dismissed as against the Town of Bethlehem Police
8

Department.”); Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *5
(N.D.N.Y. Sept. 13, 2012) (“Because the Syracuse Police Department is merely an
administrative arm of the City of Syracuse, it is not a proper defendant.”).
Therefore, the Court recommends dismissing the complaint against the Oneida County
Police, the Oneida County Sheriff’s Department, and the Rome Police with prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B).
C.

Det. Salle, Officer Zonnevylle, Officer Page, and Officer White

The Court liberally construes Plaintiff’s general claim for Fourth Amendment violations
to be equivalent to his claims for false arrest, false imprisonment, and an illegal cavity search of
his person. (See Dkt. No. 1 at 5-9.) Based on the facts in the complaint, the Court construes the
false arrest and false imprisonment claims to pertain to Det. Salle, Officer Zonnevylle, and
Officer Page and the illegal cavity search claim to pertain to Det. Salle and Officer White. (Dkt.
No. 1 at 5, 7-9; Dkt. No 1-1 at 1-13.)
1.

False Arrest and False Imprisonment

“A Section 1983 claim for false arrest [or false imprisonment] rest[s] on the Fourth
Amendment right of an individual to be free from unreasonable seizures, including arrest without
probable cause.” Cea v. Ulster Cty., 309 F. Supp. 2d 321, 329 (N.D.N.Y. 2004) (quoting
Sulkowska v. City of N.Y., 129 F. Supp. 2d 274, 287 (S.D.N.Y. 2001)). Such claims are one and
the same because “[f]alse arrest and false imprisonment overlap; the former is a species of the
latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007).
The elements of a claim for false arrest under § 1983 are the same elements as a claim for
false arrest under New York law. Lewis v. City of New York, 18 F. Supp. 3d 229, 235 (E.D.N.Y.
2014) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). “Under New York law, the
elements of a false arrest and false imprisonment claim are: ‘(1) the defendant intended to
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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.’” Hernandez
v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (quoting McGowan v. United States, 825 F.3d
118, 126 (2d Cir. 2016)).
“For purposes of the privilege element of a false arrest and imprisonment claim, an act of
confinement is privileged if it stems from a lawful arrest supported by probable cause.” De
Lourdes Torres v. Jones, 26 N.Y.3d 742, 759 (N.Y. 2016); accord Ackerson v. City of White
Plains, 702 F.3d 15, 19 (2d Cir. 2012) (“Probable cause is a complete defense to an action for
false arrest.”) (citation and internal quotation marks omitted). Probable cause exists where the
officer has “knowledge or reasonably trustworthy information sufficient to warrant a person of
reasonable caution in the belief that an offense has been committed by the person to be arrested.”
Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (citation and internal quotation marks
omitted). “[T]he court looks only to the information the arresting officer had at the time of the
arrest.” Peterson v. Cty of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998). “Once a police
officer has a reasonable basis for believing there is probable cause, he is not required to explore
and eliminate every theoretically plausible claim of innocence before making an arrest.” Ricciuti
v. N.Y.C. Trans. Auth., 124 F.3d 123, 128 (2d Cir. 1997).
Here, the Court construes Plaintiff’s complaint to allege that because Judge Bauer ruled
the search of Plaintiff’s car to be illegal and consequently suppressed the recovered gun, that
there was no probable cause to arrest and confine him. (See Dkt. No. 1-1 at 1-13.) However,
“[f]or federal false arrest claims, even in circumstances where a preceding search is illegal,
police officers may use evidence obtained in that illegal search to establish probable cause for an
arrest.” Hatcher v. City of New York, No. 15-CV-7500 (VSB), 2018 WL 1583036, at *3

10

(S.D.N.Y. Mar. 27, 2018) (citing Townes v. City of New York, 176 F.3d 138, 144-49 (2d Cir.
1999)); see also Serrano v. City of New York, No. 16-CIV-8105(AKH), 2018 WL 3392869, at *6
(S.D.N.Y. July 12, 2018), aff’d, 793 F. App’x 29 (2d Cir. 2019) (“Under Townes, the fruit of the
poisonous tree doctrine cannot be used to ‘link the unreasonable search and seizure’ to what
came next—the discovery of the marijuana cigarette on plaintiff’s person—which
unquestionably gave officers probable cause to arrest plaintiff[.]”).
In New York State, a person is guilty of Criminal Possession of a Weapon in the second
degree if he or she possesses a loaded firearm and does not have a license to possess such a
firearm. See Bannister v. Luis, No. 18-CV-7285 (EK) (ST), 2022 WL 19402512, at *45
(E.D.N.Y. Feb. 16, 2022) (citing N.Y. Penal Law § 265.03), report and recommendation
adopted as modified, 2023 WL 2325680 (E.D.N.Y. Mar. 2, 2023). Under New York law, the
existence of a firearm in an automobile creates a permissive presumption that all occupants of
the vehicle have common constructive possession of the firearm, absent certain statutory
exceptions which are inapplicable here. Id. (citing N.Y. Penal Law § 265.15(3)). “If a jury may
make a presumption of possession under the law, it is reasonable for a police officer to do the
same.” Id. “Therefore, upon finding the loaded handgun in the car, the officers had probable
cause” to arrest and confine Plaintiff, defeating his false arrest and false imprisonment claims.
Id. As noted above, because the fruit of the poisonous tree doctrine does not apply to § 1983
claims, the gun recovered from the illegal search of Plaintiff’s car created probable cause for
officers to arrest and confine him. Id. at *5 (citing Townes, 176 F.3d at 145). Accordingly,
Plaintiff’s false arrest and false imprisonment claims necessarily fail.
Plaintiff’s Fourth Amendment false arrest and false imprisonment claims are also
frivolous because a dispositive defense (i.e., probable cause) appears on the face of the

11

complaint. Ferguson, 130 F. Supp. 2d at 565; Harrell, 268 F.3d at 148-49; Woods, 921 F. Supp.
at 1144-45; see also Garcia, 279 F. Supp. 2d at 298. The undersigned accordingly recommends
the Court dismiss Plaintiff’s Fourth Amendment false arrest and false imprisonment claims
because they are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
2.

Body Cavity Search

The Fourth Amendment protects individuals against searches of their person without a
warrant. Johnson v. City of New York, No. 21-CV-5268 (PKC), 2022 WL 4133284, at *3
(S.D.N.Y. Sept. 12, 2022). A search incident to an arrest, however, “constitutes an exception to
the warrant requirement” imposed by the Fourth Amendment. Riley v. California, 573 U.S. 373,
382 (2014). Nevertheless, there are limitations upon the scope of an appropriate search incident
to an arrest. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). Indeed, whether a
search incident to an arrest was lawful turns upon whether such search was reasonable. Id.
Visual body cavity searches in particular are “invasive and degrading” and a “serious
invasion of privacy,” even more intrusive than a typical strip search. Sloley v. VanBramer, 945
F.3d 30, 38 (2d Cir. 2019). As such, “a visual body cavity search conducted as an incident to a
lawful arrest for any offense must be supported by a specific, articulable factual basis supporting
a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity.” Sloley,
945 F.3d at 38 (citation and quotation marks omitted). To determine whether a visual body
cavity search was reasonable under the circumstances, “courts also consider whether the
individual’s preceding arrest was for a misdemeanor or felony, whether it involved drugs,
whether the individual would soon be surrounded by other inmates or arrestees or housed alone,
whether the search occurred privately, and whether the search was performed pursuant to
reasonable suspicion or because of a blanket policy.” Monroe v. Gould, 372 F. Supp. 3d 197,

12

204 (S.D.N.Y. Mar. 14, 2019) (citing Gonzalez v. City of Schenectady, 728 F.3d 149, 162 (2d
Cir. 2013)).
Based on relevant authority from New York State courts, Sloley identified various factors
which can support a reasonable suspicion that an arrestee is secreting narcotics inside his person.
See 945 F.3d at 46. For example, officers may have reasonable suspicion where the arrestee is
seen placing his hands down his pants or making similarly suspicious movements. People v.
Hunter, 902 N.Y.S.2d 678, 679-80 (3d Dep’t 2010) (finding reasonable suspicion based in part
on the officers’ observation of the arrestee “fidgeting with his hands down the back of his
pants”); People v. Harry, 884 N.Y.S.2d 712, 712-13 (1st Dep’t 2009) (finding reasonable
suspicion where an arrestee was placed in a patrol car and observed “moving around a lot, like
sliding up and down in his seat and making movements with his hands” as though he were
attempting to place or remove something from his pants); People v. Clayton, 868 N.Y.S.2d 303,
305-06 (2d Dep’t 2008) (finding reasonable suspicion where the arrestee was observed “wiggling
around” in the patrol car and placing his hands in an area where the officer had felt a hard object
during a pat-and-frisk). An officer may also have reasonable suspicion based on information that
a particular arrestee is secreting objects in his person, or that he has a custom of doing so. See
Hunter, 902 N.Y.S.2d at 680 (finding reasonable suspicion based in part on information the
officers had received from a confidential informant that the arrestee “had a habit of carrying
narcotics in his rectum”); Clayton, 868 N.Y.S.2d at 306 (finding reasonable suspicion based in
part on the defendant’s “history of secreting contraband in his rectum”). Finally, an officer has
reasonable suspicion where he has watched a suspect “retriev[e] an item from his buttocks area
and exchang[e] it for money from a person found in possession of drugs minutes later.” People
v. Barnville, 819 N.Y.S.2d 234, 236 (1st Dep’t 2006).

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None of these factors appear to be present here. See Falls v. (Police Officer) Detective
Michael Pitt, No. 16-CV-8863 (KMK), 2021 WL 1164185, at *23–27 (S.D.N.Y. Mar. 26, 2021).
Det. Salle testified “the visual body cavity search of [Plaintiff’s] person was based solely on [his]
history for a drug offense and no other reason.” (Dkt. No. 1-1 at 4, 10.) Further, on the
“Unclothed Search Form,” Det. Salle indicated “the sole reason the unclothed search was
performed was based upon the fact that [Plaintiff’s] criminal history showed him having an
undated ‘CSCS 3rd offense.’” Id. at 4, 10. Judge Bauer ultimately found
[n]o other justification was offered for the search at issue. Prior
drug offenses, the last nine years prior, standing alone, with no
further ‘specific, articulable, factual basis supporting a reasonable
suspicion to believe the arrestee secreted evidence inside a body
cavity’ are not enough to justify the ‘distinctly elevated level of
intrusion’ of this search.
Id. (citation omitted).
Given what is alleged, the Court recommends Plaintiff’s Fourth Amendment claim based
on the visual body cavity search survives initial review under 28 U.S.C. § 1915(e) and requires a
response. In so recommending, the undersigned expresses no opinion regarding whether the
claim could survive a properly filed motion to dismiss or motion for summary judgment.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 2) is
GRANTED, 2 and it is
RECOMMENDED that Plaintiff’s Fourth Amendment claim based on the body cavity
search against Det. Salle and Officer White SURVIVES sua sponte review; and it is further

2

Plaintiff should note that although his motion to proceed IFP has been granted, he will still be
required to pay fees that he may incur in this action, including copying and/or witness fees.
14

RECOMMENDED that Plaintiff’s Fourth Amendment false arrest and false
imprisonment claims against Det. Salle, Officer Zonevylle, and Officer Page be DISMISSED
WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions cited herein in accordance
with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written
objections to the foregoing report. 3 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: November 14, 2023
Syracuse, New York

3

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. 6(a)(1)(C).
15

Dzugas-Smith v. Southold Union Free School Dist., Not Reported in F.Supp.2d (2012)
2012 WL 1655540

2012 WL 1655540
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Donna DZUGAS–SMITH, Plaintiffs,
v.
SOUTHOLD UNION FREE SCHOOL DISTRICT,
Dr. Christopher Gallagher, Virginia Thompson,
Richard Caggiano, Paulette Ofrais, Judi Fouchet, Dr.
Robert Walsh, Jeananne Dempsey, Patricia Mellas,
David Riddell, Elaine White, Scott Desimone, Susan
Nobile, Gail Andrews Butta, Mary Fitzpatrick,
Mary Lou Cahill and Bruce Kollmar, Defendants.
No. CV–08–1319 (SJF)(WDW).
|
May 9, 2012.

OPINION & ORDER
FEUERSTEIN, District Judge.
*1 On April 1, 2008, pro se plaintiff Donna Dzugas–
Smith (“plaintiff”) commenced an action (“Action No.
1”), individually and on behalf of her child “B.D.S.,”
against defendants Southold Union Free School District (“the
UFSD”), Dr. Christopher Gallagher, Virginia Thompson,
Richard Caggiano, Paulette Ofrias, Judi Fouchet, Dr.
Robert Walsh, Jeananne Dempsey, Patricia Mellas, Lori
Cariello, David Riddell, Elaine White and Scott Desimone,
(collectively, the “UFSD defendants”), State Review Officer
Paul F. Kelly (“Kelly”) and Ingerman and Smith L.L.P.
(“Ingerman Smith”). On June 26, 2008, plaintiff filed an
amended complaint in Action No. 1 alleging violations of,
inter alia, the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400, et seq.; the Rehabilitation Act of
1973 (“the Rehabilitation Act”), 29 U.S.C. § 792, et seq.; the
Civil Rights Act of 1871, 42 U.S.C. §§ 1983 (“Section 1983”)
and 1985 (“Section 1985”); Title II of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq.; New
York Education Law §§ 4401, et seq. (“New York Education
Law”); and the New York State Constitution Article XI, § 1
(“New York Constitution”).
On May 8, 2008, pro se plaintiff commenced a separate
action (“Action No. 2”), individually and on behalf of B.D.S.,

against all of the same defendants as named in Action No. 1,
as well as against Susan Nobile, Gail Andrews Butta, Mary
Fitzpatrick, Mary Lou Cahill and Bruce Kollmar (collectively,
“the additional UFSD defendants”) and the New York State
Education Department (“NYSED”). On September 4, 2008,
plaintiff filed an amended complaint in Action No. 2 alleging
violations of, inter alia, the IDEA, the Rehabilitation Act,
Section 1983, 42 U.S.C. § 1988 (“Section 1988”), the ADA,
the New York Education Law and the New York Constitution.
Thereafter, Ingerman Smith and Kelly moved, inter alia,
pursuant to Rule 12 of the Federal Rules of Civil Procedure
to dismiss the amended complaints in both actions as against
them. By order entered June 26, 2009, this Court, inter
alia: (1) consolidated Actions No. 1 and 2; (2) dismissed
plaintiff's Section 1983, Section 1985 and state law claims
as against Ingerman Smith without prejudice and sua sponte
dismissed plaintiff's Section 1985 claims as against all
defendants without prejudice; (2) dismissed plaintiff's ADA
and Rehabilitation Law claims as against Ingerman Smith,
Kelly and all individual defendants with prejudice; (3)
dismissed plaintiff's claims as against Kelly with prejudice,
with the exception that plaintiff was granted leave to amend
the pleadings to assert a claim seeking a declaratory judgment
based upon any ongoing violation of federal law by Kelly; (4)
sua sponte dismissed plaintiff's ADA claims in both actions,
and her Rehabilitation Act claims in Action No. 2, as against
the UFSD and NYSED without prejudice; and (5) directed
plaintiff to retain counsel, or move for the appointment of
counsel, on behalf of B.D.S. within thirty (30) days or all
claims asserted on behalf of B.D.S. would be dismissed
without prejudice. 1
1

On July 22, 2009, Ingerman Smith filed a notice
of appeal of the June 26, 2009 order. By mandate
entered December 28, 2010, the United States
Court of Appeals for the Second Circuit dismissed
Ingerman Smith's appeal as not ripe for review.

*2 On September 21, 2009, plaintiff, individually and on
behalf of B .D.S., filed an amended complaint, which became
the operative pleading in the consolidated action, against all
defendants 2 and moved for the appointment of counsel on
behalf of B.D.S. By order entered October 2, 2009, plaintiff's
motion to appoint counsel on behalf of B.D.S. was denied
with leave to renew within thirty (30) days upon submission
of an appropriate financial affidavit and plaintiff was advised
that her failure to timely renew the motion, to secure pro bono
counsel or to retain counsel on behalf of B.D.S. would result

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in all claims asserted on behalf of B.D.S. in this action being
dismissed without prejudice.
2

Although not named in the caption of the amended
complaint filed in the consolidated action, the body
of the amended complaint refers to Laurie Cariello
as a defendant and contains factual allegations
against her.

Kelly and the NYSED subsequently moved pursuant to Rules
12(b) (1) and (5) of the Federal Rules of Civil Procedure
to dismiss the amended complaint against Kelly as barred
by the doctrine of absolute immunity and against Kelly and
the NYSED for improper service of process, respectively;
and Ingerman Smith moved pursuant to Rules 12(b) and
(c) of the Federal Rules of Civil Procedure to dismiss the
amended complaint as against it and for judgment on the
pleadings, respectively. By order dated April 26, 2011, inter
alia: (1) the branches of Ingerman Smith's motion seeking
judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure was granted and plaintiffs
claims were dismissed in their entirety with prejudice as
against Ingerman Smith; (2) the branch of Kelly's and the
NYSED's motion seeking dismissal of plaintiff s claims
against Kelly as barred by the doctrine of absolute immunity
was granted and plaintiff's claims were dismissed in their
entirety with prejudice as against Kelly; (3) the branch of
Kelly's and the NYSED's motion seeking dismissal of the
amended complaint against the NYSED pursuant to Rule
12(b)(5) for insufficient service of process was granted and
the amended complaint was dismissed in its entirety without
prejudice as against the NYSED; (4) plaintiff's Section 1985
claims were dismissed in their entirety with prejudice; and (5)
all claims asserted on behalf of B.D.S. were dismissed in their
entirety without prejudice. Accordingly, only the following
claims remain in this action: (1) the Section 1983 and 1988
claims asserted by plaintiff, individually, against the UFSD
defendants and additional UFSD defendants (collectively,
“defendants”); (2) the IDEA, Rehabilitation Act and ADA
claims asserted by plaintiff, individually, against the UFSD;
and (3) Ingerman Smith's counterclaim against plaintiff
Defendants now move pursuant to Rule 56 of the Federal
Rules of Civil Procedure for summary judgment dismissing
plaintiff's remaining claims in their entirety. 3
3

conference. When plaintiff failed to timely serve
any opposition to the motion in accordance with
the amended briefing schedule, i.e., by October
12, 2011, or to seek an extension of time to do
so, defendants twice moved for leave to file their
motion as unopposed. Plaintiff did not respond to
either of those motions, filed October 24, 2011
and November 16, 2011, respectively. Accordingly,
by order dated November 18, 2011, defendants
were granted leave to file their summary judgment
motion as unopposed. Defendants filed their
unopposed motion on November 28, 2011. Only
thereafter did plaintiff belatedly seek an extension
of time to oppose the motion, more than six (6)
weeks after the deadline to serve her opposition set
forth in the amended briefing schedule had expired.
In light of plaintiff s unreasonable failure to timely
oppose the motion or to seek an extension of time to
do so, her request for an extension of time to oppose
the motion was denied by order dated January 26,
2012.

Defendants served plaintiff with their motion for
summary judgment on or about September 15,
2011, in accordance with a briefing schedule set by
this Court, as amended during a July 25, 2011 status

I. Background
A. Factual Background 4
4

The facts are taken from defendants' Statement
of Undisputed Facts pursuant to Rule 56.1 of the
Local Civil Rules of the United States District
Courts for the Southern and Eastern Districts of
New York (“Local Rule 56.1”), to the extent
supported by the administrative record, as well as
from the administrative record itself.

1. The Parties
Plaintiff is the mother and natural guardian of B.D.S., a
child with a history of developmental and learning problems
who received a public education in the UFSD through and
including the 2005–2006 academic year (her sixth grade
year). (56.1 Stat., ¶ 1).
*3 The following defendants were employed by the
UFSD in the following capacities at all relevant times: (1)
Virginia Thompson (“Thompson”), as the director of special
education, the chairperson of the Committee of Special
Education (“CSE”) and the administrator of pupil personnel
services; (2) Dr. Christopher Gallagher (“Gallagher”), as
superintendent; (3) David Riddell (“Riddell”), as the special
education teacher designated on the individualized education
program (“IEP”) developed for B.D.S.; (4) Laurie Cariello

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(“Cariello”), as the English language arts teacher of the
sixth (6th) grade “teaching team” for B.D.S.; (5) Jeananne
Dempsey, a/k/a Jeanne Dempsey (“Dempsey”), as the science
and math teacher of the sixth (6th) grade “teaching team” for
B.D.S.; (6) Patricia Mellas, a/k/a Patti Mellas (“Mellas”), as
the social studies teacher of the sixth (6th) grade “teaching
team” for B.D.S .; (7) Elaine White (“White”), as the school
psychologist at Southold Elementary School within the
UFSD; (8) Susan Nobile (“Mobile”), as a reading specialist;
(9) Mary Fitzpatrick (“Fitzpatrick”), as the principal and
building administrator of the Junior/Senior High School
within the UFSD; (10) Gail Andrews Butta (“Butta”), as the
head of special education in the Junior/Senior High School
within the UFSD; and (11) Mary Lou Cahill (“Cahill”),
as the special education teacher assigned to B.D.S. by the
UFSD. In addition, at all relevant times, the Board of
Education of the UFSD was comprised of the following
defendants: Richard Caggiano (“Caggiano”) as President,
and Paulette Ofrias (“Ofrias”), Judi Fouchet (“Fouchet”), Dr.
Robert Walsh (“Walsh”) and Scott DeSimone (“DeSimone”),
as members (collectively, the “BOE defendants”). Moreover,
defendant Bruce Kollmar (“Kollmar”) was, at all relevant
times, the “Out of District CSE Chairperson” under contract
with the UFSD.
2. B.D.S.'s Performance in Fifth Grade
An “Evaluation Review” completed by Nobile in September
2004, at the beginning of B.D.S.'s fifth grade year, indicates
that B.D.S. “demonstrated average regression over the
summer, meaning her levels [were] consistent with those
normally demonstrated over a long vacation,” and, therefore,
that extended year (“EY”) services 5 for B.D.S. were not
warranted. In an October 2004 progress report, Nobile further
indicated, inter alia: (1) that B.D.S. demonstrated consistent
growth in sight word development skills over time; (2)
that although test scores revealed a “slight regression” in
B.D.S.'s decoding skills over the summer, B.D.S. was able to
“retrieve[ ] and surpass[ ] her 4/01/04 level of performance,
indicating consistent growth in [those] skills over time;” and
(3) that B.D.S.'s word reading efficiency was within normal
limits for her age. By November 2004, Nobile reported,
inter alia, that B.D.S. no longer demonstrated any summer
regression. Furthermore, in December 2004, Nobile, inter
alia: (1) reported that B.D.S.'s sight word and decoding skills
were “firmly within the average range;” and (2) recommended
that the CSE discontinue the reading services previously
provided by the UFSD for B.D.S. in order to allow her more
time to apply her reading skills within the classroom setting.

5

New York Education Law provides, in relevant
part, that “[t]he board of education * * *
shall be required to furnish suitable educational
opportunities for children with [disabilities] by one
of the special services or programs listed [in that
statute]. The need of the individual child shall
determine which of such services shall be rendered.
Each district shall provide to the maximum extent
appropriate such services in a manner which
enables children with [disabilities] to participate in
regular education services when appropriate. Such
services or programs shall be furnished between
the months of September and June of each year,
except that * * * with respect to the students
whose [disabilities] are severe enough to exhibit
the need for a structured learning environment of
twelve months duration to maintain developmental
levels, the board of education * * * upon the
recommendation of the [CSE] * * * shall also
provide * * * for the provision of special services
and programs * * * during the months of July
and August as contained in the [IEP] for each
eligible child * * *.” N.Y. Educ. Law § 4402(2)(a)
and (b) (emphasis added). In addition, regulations
promulgated by the New York State Commissioner
of Education (“the Commissioner”) provide, in
relevant part, that “[s]tudents shall be considered
for twelve month special services and/or programs
in accordance with their need to prevent substantial
regression, if they are: * * * students who * *
* because of their disabilities, exhibit the need
for a twelve month special service and/or program
provided in a structured learning environment of
up to twelve months duration in order to prevent
substantial regression as determined by the [CSE].
* * * All [EY services] programs * * * offered
during July and August shall have been approved
by the commissioner [of Education] in the first year
in which the program is offered and periodically
thereafter.” 8 N.Y.C.R.R. § 200.6(k) (emphasis
added). “Substantial regression” is defined in the
regulations as “a student's inability to maintain
developmental levels due to a loss of skill or
knowledge during the months of July and August
of such severity as to require an inordinate period
of review at the beginning of the school year to
reestablish and maintain IEP goals and objectives

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mastered at the end of the previous school year.” 8
N.Y.C.R.R. § 200.1(aaa).
*4 On her final report card for the 2004–2005 academic
year, B.D.S. received grades of “3,” with the highest grade
attainable being a “4,” in all areas of the four (4) academic
subjects, i.e., English language arts, mathematics, science
and social studies, indicating that her performance in those
subjects met grade level expectations, with the exception that
she received a grade of “2” in the area of reading, indicating
that she displayed difficulty meeting grade level expectations
in that one (1) area.
3. The 2005–2006 Academic Year
On May 11, 2005, the CSE met to conduct its annual review.
The IEP developed for B.D.S. for the 2005–2006 academic
year (her sixth grade year) included: (1) resource room
services for three (3) days out of the six (6)-day cycle,
individual remedial reading services for one (1) hour twice a
week and individual speech therapy services for two (2) days
out of the six (6)-day cycle; (2) support services, including
use of a graphic organizer with Inspiration software, use of
an auditory enhancer and testing accommodations; and (3)
academic intervention (“AI”) services 6 during the summer
of 2005, including speech therapy twice a week for six (6)
weeks and one-to-one reading services twice a week for eight
(8) weeks. (56.1 Stat, ¶¶ 6–7). B.D.S.'s parents agreed with
the CSE's recommendations for the 2005–2006 academic year
and for the summer of 2005 and B.D.S. received the AI
services during the summer 2005 in accordance with the IEP.
6

Regulations promulgated by the Commissioner
authorize school districts to provide AI services
to students within their district who score below
the state designated performance level on state
elementary assessments in English language arts,
mathematics, science and/or social studies or
who “are determined, through a district-developed
or district adopted procedure * * * to be at
risk of not achieving State standards in English
language arts, mathematics, social studies and/
or science. See 8 N.Y.C.R.R. § 100.2(ee)(2).
School districts are responsible for “develop [ing]
a description of [AI] instructional and/or student
support services to be provided in schools to
students in need of such services * * * .” 8
N.Y.C.R.R. § 100.2(ee)(4)(l)(i). The description of
available AI services “shall specifically describe:
(a) the district-wide procedure(s) used to determine

the need for [AI] services; (b) [AI] instructional
and/or student support services to be provided
pursuant to paragraph (5) of this subdivision;
(c) whether instructional services and/or student
support services are offered during the regular
school day or during an extended school day or
year; and (d) the criteria for ending services, * * *.”
Id . School districts may: (i) “use time available for
[AI] instructional and/or student support services
during the regular school day [,][and] (ii) * *
* provide students with extended academic time
beyond the regular school day and school year.” 8
N.Y.C.R.R. § 100.2(ee)(5).
In October 2005, near the beginning of B.D.S.'s sixth grade
year, Deborah Kinahan (“Kinahan”), B.D.S.'s reading teacher,
conducted an educational evaluation of B.D.S. and reported,
inter alia, that B.D.S.'s developmental level on basic reading
skills and reading comprehension was within the average
range of scores obtained by others at her grade level.
In November 2005, White conducted a cognitive and
educational evaluation of B.D.S. and reported, inter alia:
(1) that B.D.S.'s working memory capacity was limited, but
within the low average range; (2) that B.D.S.'s academic
achievement in broad written language and written expression
was within the average range and her overall reading ability
was limited; (3) that B.D.S.'s fluency (a) in mathematics
problems and writing was average and (b) with reading tasks
was limited; (4) that B.D.S.'s nonverbal reasoning abilities
were within the high average range and were much better
developed that her verbal reasoning abilities, which were
within the average range; (5) that B.D.S.'s abilities to sustain
attention, concentrate and exert mental control were in the low
average range and were a weakness relative to her nonverbal
and verbal reasoning abilities; and (6) that B.D.S.'s ability
to process simple or routine visual material without making
errors was in the average range.
In December 2005, an independent auditory and language
processing re-evaluation of B.D.S. was conducted by Donna
Geffner (“Geffner”), who reported, inter alia: (1) that
B.D.S. had a borderline deficit in auditory processing, with
difficulties in reading accuracy, comprehension, short-term
memory, distractability, figure-ground listening, receptive
and expressive language and attentional issues, similar
to those presented during Geffner's initial evaluation of
B.D.S. in September 2004; (2) that B.D.S.'s test scores
had improved in the areas of (a) phonemic synthesis,
which was above the criterion for her age, and (b)

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auditory conceptualization, which continued to be below
the criterion for her grade level, but only by one (1) year
as opposed to her previous test score which was below
the criterion in that area by two (2) grade levels; (3) that
B.D.S.'s temporal integration was not completely developed,
her working memory was impaired and her short-term
memory, word retrieval ability, auditory comprehension and
receptive language skills remained compromised; (4) that
B.D.S. displayed difficulty in the area of rapid naming;
(5) that there was (a) “a significant improvement” in
B.D.S.'s expressive language, which was within the average
range upon reevaluation, (b) “a small improvement” in
B.D.S.'s receptive language, (c) improvement in B.D .S.'s
core language, language content, Word Classes, semantic
relationships and all expressive language tasks, i.e., word
definitions, formulated sentences and sentence assembly, (d)
“a slight decrease” in B.D.S.'s language memory, which was
still within the low average range, and (e) no improvement
in B.D.S.'s ability to understand concepts and spoken
paragraphs and to follow directions; (6) that B.D.S. had
made progress and improvement through accommodations,
“appropriate intervention” and reading instruction, but
continued to present with an auditory processing disorder
and receptive language disorder that contributed to her
language-based learning disability and dyslexia; (7) that
B.D.S.'s scores on the Clinical Evaluation of Language
Fundamentals–Fourth Edition (“CELF–4”) test placed her
in the average range of functioning in the areas of core
language, receptive language, expressive language, language
content and language memory; and (8) that “[w]ith continued
parental support, school accommodations, and specific
intervention programs, prognosis for continued growth [was]
positive.” Geffner recommended, inter alia: (1) that B.D.S.'s
classification be changed from “Learning Disabled” to
“Speech-language impaired;” (2) that the UFSD continue to
provide B.D.S. with classroom and testing accommodations
and with reading instruction; (3) that B.D.S. be permitted
to use a laptop with Inspiration software in class; (4) that
B.D.S. be provided (a) a personal FM ear level unit, i.e.,
an auditory enhancer, (b) speech-language therapy twice a
week, (c) EY services with a reading specialist and speechlanguage services, (d) support services for writing and a
graphic organizer and (e) a Fast ForWord computer program;
(5) that B.D.S. be permitted to take a foreign language on a
pass-fail basis; and (6) that B.D.S.'s attention in the classroom
be monitored.
*5 Progress reports for B.D.S. during the 2005–2006
academic year indicate: (a) that as of March 2006, B.D.S.

achieved scores of seventy-two (72), eighty-eight (88) and
eighty-three (83) in English language arts subjects, seventythree (73) in mathematics, seventy-nine (79) in social studies
and eighty-one (81) in science; and (2) that as of June
2006, B.D.S. achieved scores of sixty-five (65), ninety (90)
and ninety (90) in English language arts subjects, eightyone (81) in mathematics, seventy-nine (79) in social studies
and seventy-eight (78) in science. In addition: (1) Dempsey
indicated that B.D.S.'s academic performance fell within the
average band; and (2) Kinahan reported that although B.D.S.
was progressing in the area of reading, her decoding and
fluency skills continued to be weak and she had difficulty with
comprehension and organization.
On her final report card for the 2005–2006 academic year,
B.D.S. received a grade of “3” in all areas of all subjects,
indicating that her performance in all subjects met grade level
expectations.
3. Development of B.D.S.'s IEP for the 2006–2007
Academic Year
The CSE met on March 9, 2006 to review the evaluations
of Geffner and White, as well as an assistive technology
evaluation that had been completed by Tom Rosati. The
meeting was attended by B.D.S.; her parents; three (3) of
plaintiff s friends, as “family support” members; Thompson;
White; Dempsey; Riddell; Mellas; Carriello; the principal
of the elementary school; and a parent member. During
the meeting: (1) Dempsey reported that B.D.S.'s science
skills development and math skills testing scores were
within the average range; (2) Mellas reported that B.D.S.
actively participated in social studies classes and attained
average grades, although she occasionally needed assistance
to organize her thought processing and to remind her of
the techniques or compensatory skills she was learning; (3)
Cariello commended B.D.S. for her persistence of effort in
reading and writing skills development; (4) White reported
that B.D.S.'s verbal abilities were within the average range,
her ability to work with visual perception was above average,
her processing speed was “very good,” her full scale IQ was
in the average band, her working memory was an area of
weakness and her fluency and proficiency of computing tasks
was delayed; and (5) Geffner recommended that the UFSD
provide B.D.S. with EY services in a six (6)-week program
at the Landmark School (“Landmark”) 7 . The CSE approved
the following additional services for B.D.S.: (a) a personal
laptop with Microsoft Office for students including One Note;
(b) an auditory enhancer, i.e., a Lightspeed Sound System

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in B .D.S.'s classroom; and (c) one-to-one tutoring three (3)
hours a week, to be provided as an AI service during the
summer of 2006. B.D.S.'s parents did not agree with the
summer AI services being offered, as opposed to B.D.S.'s
placement at Landmark for the summer, but consented to the
other additional services for B.D.S.
7

Landmark is a private, not-for-profit school,
located in Prides Crossing, Massachusetts, for
students with average to above average IQ who
have a specific language-based learning disability.

*6 On April 24, 2006, Kinahan reported that she did not see
any regression in B.D.S.'s skills after long school breaks; that
she did not observe B.D.S. as performing significantly below
grade level; that she observed B.D.S. to be an average student;
that B.D.S.'s decoding skills were “a little weak,” but she
compensated well for that weakness and her comprehension
was good; and that she did not believe B.D.S. was a good
candidate for Landmark because it was too restrictive for her.
On April 26, 2006, the CSE met to discuss summer services
for B.D .S following her interview and assessment by
Landmark. The meeting was attended by B.D.S., plaintiff,
three (3) of plaintiff s friends, Thompson, White, Dempsey,
Riddell, Mellas, B.D.S.'s speech therapist, the principal and
a parent member. During the meeting, Mr. Hicks, who tested
B.D.S. for purposes of setting up a program for her at
Landmark, reported, inter alia: (1) that B.D.S. had attained
“some very high scores,” particularly on the Linda Mood
auditory conceptualization test and word attack skills test,
but that her word identification was “significantly lower,”
and her accuracy and fluency on oral directions was “even
lower” yet; (2) that B.D.S. displayed “some difficulty” in raw
auditory memory; (3) that B.D.S.'s scores on block design and
matrix reasoning were “very strong;” and (4) that B.D.S.'s
vocabulary and long term learning were good. Thompson and
White indicated that B.D.S. did not legally fit the criteria for
EY services and, thus, that any summer program at Landmark
for the summer of 2006 could only be approved as an AI
service, and Thompson also indicated that Landmark did
not quality as a legitimate summer program for EY services
under state regulations. Nonetheless, the CSE agreed to allow
B.D.S. to attend a summer program at Landmark as an AI
service during the summer of 2006. (56.1 Stat., 19). Plaintiff
consented to the summer services being provided as an AI
service, (56.1 Stat., ¶ 13), although she alleges that she and
Thompson “agree [d] to disagree about the service being
delivered through the AIS budget * * * [and] about [B.D.S.'s]
classification, so long a[sic] [B.D.S.] [received] the service

that [met] her needs as decided at the CSE.” (Amend.Compl.,
¶ 6.56).
4. B.D.S.'s IEP for the 2006–2007 Academic Year
On May 26, 2006, the CSE conducted its annual review
to develop B .D.S.'s IEP for the 2006–2007 academic year
(her seventh grade year). (56.1 Stat., ¶ 14). The meeting
was attended by B.D.S., her parents, Thompson, the UFSD
psychologist, a special education teacher, Riddell, Mellas,
Dempsey, Cariello, and two (2) of plaintiff's friends. During
the meeting: (1) B.D.S. requested that she be provided
with the previously-approved laptop; (2) B.D.S.'s parents
reported that the Lightspeed Sound System was not being
used in B.D.S.'s classroom; (3) Kinahan reported that B.D.S.'s
comprehension and organization were improving and that
B.D.S. did not present with weakness in decoding; (4)
B.D.S.'s speech therapist reported that B.D.S. continued to
present with weakness in auditory word, auditory memory,
sentence memory and interpretation of directions, but also
presented in the high average range in auditory ability to
use thinking and reasoning skills to solve verbal problems
and in discrimination of auditory words; and (5) Riddell
reported that B.D.S. had not had to use the extended-time
testing accommodation. The IEP developed for B.D.S. during
the annual review meeting provided for: (1) resource room
services to be increased from three (3) days in every six
(6)-day cycle to daily, commencing on September 6, 2006
until June 13, 2007; (2) use of a graphic organizer with
Inspiration software, an individual auditory enhancer and a
laptop in all classes from September 6, 2006 to June 21, 2007;
(3) testing accommodations; and (4) textbooks and literature
books to be provided on CD. Plaintiff agreed with the CSE's
recommendations for B.D.S.'s 2006–2007 IEP, including the
placement of B.D.S. in the program at Landmark for the
summer of 2006 as an AI service, and signed a consent form
indicating such agreement, (56.1 Stat., ¶ 15).
*7 B.D.S. attended the summer program at Landmark during
the summer of 2006, which was provided by the UFSD as
an AI service. (56.1 Stat ., ¶ 10). At all relevant times,
Landmark was not approved by the Commissioner as a school
with which the UFSD may contract to instruct students with
disabilities. (56.1 Stat., ¶ 12).
On July 31, 2006, the CSE sub-committee met in order to
get feedback from Landmark regarding B.D.S.'s performance
in its summer program and to ascertain “what more [the
CSE] can do for [B.D.S.] on [its] end.” The meeting was
attended by Thompson, White, a special education teacher, a

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regular education teacher, B.D.S., B.D.S.'s parents, three (3)
of plaintiff's friends, a liaison for Landmark, the academic
dean for Landmark and a case manager from Landmark.
During the meeting, Thompson, inter alia, advised: (1) that
she had made it a priority to get the previously-approved
laptop to B.D.S.; that B.D.S.'s books had been ordered on
CD; and that the individual listening device would be ordered
as soon as B.D .S. picked out the one that she wanted;
(2) that B.D.S. had made progress in the public school
setting, had demonstrated success on the New York State
benchmark exams without having any testing modifications
and had improved in her ability to read, although her
fluency was still delayed; (3) that B.D.S. had had a lead
role in a school play and was able to memorize her lines
and to speak them with “great articulation;” and (4) that
there was no indication that the more restrictive Landmark
program could be approved by the CSE or UFSD under
state regulations. The CSE sub-committee recommended
continued placement in the least restrictive environment
of UFSD mainstream classes; again offered B.D.S. daily
resource room services and accommodations, such as, inter
alia, use of a graphic organizer with Inspiration software
program, a personal auditory enhancer, a laptop in all regular
classes, books on CD in English, science and social studies
classes, modified homework assignments and preferential
seating; and additionally offered B.D.S. a daily one-to-one
tutorial period with a special education teacher and individual
reading remediation services twice a week. (56.1 Stat .,
¶¶ 16–18, 54–56). B.D.S.'s parents did not agree with the
CSE sub-committee's recommendations and requested that
B.D.S. be placed in Landmark for the 2006–2007 academic
year and that the full CSE meet prior to the beginning of
that school year. (56.1 Stat., ¶¶ 19–20). After meeting with
plaintiff, Gallagher denied her request for a full CSE meeting
to be held during the summer and advised her that he had
instead instructed that a CSE meeting be scheduled during the
beginning of the academic year. (56.1 Stat., ¶¶ 21–22).
On August 18, 2006, plaintiff requested an impartial hearing,
(56 .1 Stat., ¶ 23), alleging, inter alia, that B.D.S. was
being denied an FAPE for the 2006–2007 academic year
and seeking pendency placement for B.D.S. at Landmark
and reimbursement for B.D.S.'s tuition at Landmark. (56.1
Stat., ¶¶ 28–29). By letter dated August 25, 2006, plaintiff
was notified that a full CSE meeting had been scheduled, in
accordance with Gallagher's instructions, for September 11,
2006. (56.1 Stat., ¶ 24). By letter dated September 8, 2006,
plaintiff requested that the CSE meeting be cancelled because

she had filed a request for an impartial hearing. (56.1 Stat .,
¶ 25).
*8 B.D.S. attended Landmark during the 2006–2007
academic year (her seventh grade year) and her parents paid
the tuition therefor. (56.1 Stat., ¶¶ 26–27).
An eight (8) day hearing was conducted before IHO Michael
Lazan (“IHO Lazan”) between October 23, 2006 and April
27, 2007, during which, inter alia: (1) Dempsey testified
that B.D.S. “fell within the average range,” performed in
the average band, i.e., in the mid-seventies to low eighties,
in her mainstream science and math classes, and was an
average student academically, (56.1 Stat., ¶¶ 30–32); (2)
Mellas testified that B.D.S. was “fairly proficient,” performed
as well as most of the other students and was an average
performer in social studies class, i.e., averaging test scores in
the high seventies to low eighties range, (56.1 Stat., ¶¶ 34–
35); (3) Cariello testified that B.D.S. was in the average band
in reading and in the low average band for written language
and overall language skills as compared to her peers in the
class, that B.D.S. had accomplished all of the sixth grade
material and demonstrated growth during her sixth grade year
and that B.D.S. had played a lead role in the school play in
2005, (56.1 Stat., ¶¶ 37–40); and (4) Riddell testified that he
focused on the skills with which B.D.S. displayed difficulty
and tried to improve her study and work habits during
resource room instruction, that B.D .S.'s November 2005
cognitive and educational evaluations were “acceptable,”
with the exception that her grade equivalent scores for
working memory, broad reading and reading fluency were
low compared to her performance in the resource room, and
that B.D.S.'s level of effort was on line with most sixth
graders. (56.1 Stat., ¶¶ 41–44). In addition, evidence was
presented during the hearing that B.D.S. was liked by her
peers; did not exhibit any behavioral problems; was active
with extracurricular activities, including skiing and drama;
achieved an average level on the New York State English
Language Arts assessment without IEP accommodations; and
performed within acceptable grade level expectations during
the 2005–2006 academic year (her sixth grade year). (56.1
Stat., ¶¶ 45–49).
By decision dated January 19, 2007, IHO Lazan, inter
alia, effectively denied plaintiff's request for pendency at
Landmark by deeming pendency to be “the resource room 5:1
program agreed to and implemented from the May 11, 2005
IEP.” IHO Lazan found, inter alia, that B.D.S.'s placement at

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Landmark was “clearly temporary for the summer of 2006.”
IHO Lazan's January 19, 2007 decision was never appealed.
By decision dated September 5, 2007, IHO Lazan, inter
alia, denied plaintiff's request for reimbursement of B.D.S.'s
tuition at Landmark for the 2006–2007 academic year,
finding, inter alia: (1) that B.D.S. had attained passing grades
in all of her subjects and had largely performed in the average
band during the 2005–2006 academic year at the UFSD; (2)
that test results showed that B.D.S. had achieved “significant
progress” in certain areas, including semantic relationships,
word definitions, formulated sentences, sentence assembly,
Word Classes 1 and 2, Word Classes receptive ability and
Word Classes expressive ability; (3) that the special education
program and services offered by the UFSD for B.D.S. for the
2006–2007 academic year were very similar to the program
and services she had during the 2005–2006 academic year,
with which she had progressed, and, thus, “would have
been likely to produce progress for 2006–2007;” and (4)
that although the UFSD had committed certain procedural
violations, B.D.S.'s parents had failed to show how those
violations significantly impacted B.D.S.'s FAPE. (56.1 Stat.,
¶¶ 57–59).
*9 On October 13, 2007, plaintiff petitioned for review of
IHO Lazan's September 5, 2007 decision by the NYSED
State Review Office pursuant to 20 U.S.C. § 1415(g). By
decision dated January 2, 2008, state review officer (“SRO”)
Kelly dismissed the appeal of IHO Lazan's September 5,
2007 decision, finding, inter alia: (1) that the hearing
record supported IHO Lazan's determinations (a) that B.D.S.'s
parents had failed to show how the procedural violations by
the UFSD had significantly impacted B.D.S.'s FAPE and (b)
that the UFSD had offered B.D.S. a FAPE for the 2006–2007
academic year; and (2) that since there was no basis in the
record to conclude that B.D.S. required a full-time special
education program in order to meet her needs, placement at
Landmark would have been overly restrictive for B.D.S. (56.1
Stat., ¶¶ 60–62).

CSE with a student report, dated January 12, 2007, which
included progress reports prepared by B.D.S.'s teachers at
Landmark during the 2006–2007 academic year, a draft IEP
prepared by Landmark staff, results of tests that had been
administered by Landmark and samples of work that had been
completed by B.D.S. while attending Landmark. (56.1 Stat.,
¶ 68). During the meeting: (1) the CSE reviewed Landmark's
draft IEP; (2) Landmark staff advised the CSE that B.D.S's
test scores had improved in the areas of word attack, word
identification, reading rate, reading accuracy and reading
fluency when compared to her test scores in 2006; (3) the CSE
reviewed B.D.S.'s test scores, which reflected improvement
in the areas of reading vocabulary, reading comprehension,
math problem solving, math procedures and spelling; and
(4) the liaison for Landmark recommended that B.D.S. (a)
receive EY services at Landmark for the summer of 2007
and (b) attend Landmark during the 2007–2008 academic
year. (56.1 Stat., ¶ ¶ 73, 74, 77). Both plaintiff and B.D.S.
contributed significantly to the information provided during
the meeting. (56.1 Stat., ¶ 76). Thompson: (1) advised the
CSE that based upon the information presented during the
meeting, B.D.S.'s needs could be met within the UFSD and,
therefore, the recommendation was for B.D.S. to return to
the UFSD; and (2) explained that B.D.S.'s test scores (a) did
not support an out-of-state placement, (b) supported a public
school placement as B .D.S.'s least restrictive environment
and (c) did not support EY services during the summer of
2007 because there was no evidence of regression. (56.1 Stat.,
¶ 78–81, 91). The CSE recommended that B .D.S.: (1) be
placed in the UFSD's inclusion classes with accommodations,
including Kurtzweil software on her laptop, use of a graphic
organizer with Inspiration software and use of an individual
auditory enhancer; and (2) receive (a) daily one-on-one
tutoring with a certified reading teacher and daily resource
room support during the 2007–2008 academic year 8 and (b)
reading remediation as an AI service for three (3) hours a
week for eight (8) weeks during the summer of 2007. (56.1
Stat., ¶¶ 75, 82, 91).
8

5. Facts Pertaining to Services for the Summer of 2007
On June 15, 2007, the CSE met via teleconference to conduct
B.D.S .'s annual review and to prepare her IEP for the
2007–2008 academic year (her eighth grade year). (56.1
Stat., ¶¶ 67, 71). The meeting was attended by Thompson,
White, Butta, Cahill, a parent member, three (3) of plaintiff
s friends, plaintiff, B.D.S., the school liaison for Landmark,
a case manager for Landmark, and five (5) teachers from
Landmark. Before the meeting, Landmark had provided the

The IEP for B.D.S. for the 2007–2008 academic
year (eighth grade) is not at issue in this case.

*10 On July 16, 2007, B.D.S., plaintiff, three (3) of
plaintiff's friends and Thompson attended a resolution
meeting regarding the summer services being offered by the
UFSD for B.D.S. At the meeting, Thompson indicated, inter
alia: (1) that B.D.S. had been approved to receive reading
remedial services three (3) times a week for eight (8) weeks
with a qualified reading instructor over the summer of 2007,

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but did not qualify for EY services because there was no
history of regression; (2) that the IEP developed during the
June 15, 2007 meeting transposed all of the goals from
Landmark's draft IEP but was for services to be provided
within the UFSD from September 5, 2007 to June 17, 2008;
(3) that the UFSD would approve a neuropsychological
evaluation of B.D.S., following which plaintiff could request
an independent neuropsychological evaluation if she did not
agree with the results; and (4) that the UFSD would approve
an independent evaluation of B.D.S. for auditory processing
disorder and speech by Dr. Geffner. Plaintiff agreed with
the additional evaluations but not with the summer services
being offered and requested that another CSE meeting be
scheduled to discuss the issue of whether B.D.S. qualified for
EY services.
On June 22, 2007, plaintiff filed a due process complaint
relating to the services to be provided to B.D.S. during
the summer of 2007 and seeking pendency placement for
B.D.S. at Landmark. On August 13, 2007, plaintiff amended
her due process complaint to seek reimbursement for ninety
(90) hours of compensatory services in lieu of pendency
placement at Landmark, since B.D.S. had not attended a
summer program at either the UFSD or Landmark during the
summer 2007. (56.1 Stat, ¶¶ 63–66).
On June 28, 2007, IHO Susan Lushing (“IHO Lushing”)
denied plaintiff's request for pendency at Landmark during
the summer of 2007, which plaintiff appealed to the NYSED.
By decision dated September 19, 2007, SRO Kelly dismissed
plaintiff's appeal.
Between August 22, 2007 and September 27, 2007, a four
(4) day hearing was held before IHO Lushing relating to the
services offered to B.D.S. for the summer of 2007. (56.1
Stat., ¶ 84). During the hearing, inter alia, Riddell, Mellas
and Dempsey all testified that they saw little or no regression
in B.D.S.'s skills after she returned from long school breaks;
Nobile explained that her testing of B.D.S. in 2004, near
the beginning of the academic year, presented a student
whose regression was within normal limits; and evidence was
presented of testing performed by Landmark in September
2007 which did not support Landmark's expectation of
regression in B .D.S.'s skills. (56.1 Stat., ¶¶ 85–89).
By decision dated November 11, 2007, IHO Lushing: (1)
found, inter alia: (a) that the UFSD correctly determined
that B.D.S. did not meet the definition to qualify for EY
services, and (b) that even though B.D.S. had not attended

summer services at the UFSD, her parents had established
that such services would have been “uncertain at best and
possibly unavailable” and, therefore, had plaintiff placed
B.D.S. in the Landmark program during the summer of 2007,
IHO Lushing would have ordered the UFSD to reimburse
her tuition therefor; and (2) awarded B.D.S. twenty-four
(24) hours of supplementary one-to-one remedial tutoring at
Landmark, not to exceed two thousand four hundred dollars
($2,400.00), as compensatory services. (56.1 Stat., ¶¶ 92–94).
*11 In or about December 2007 or January 2008, the
UFSD petitioned the NYSED for review of so much of
IHO Lushing's November 11, 2007 decision as awarded
plaintiff compensatory services. (56.1 Stat., ¶ 95). By decision
dated February 8, 2008, SRO Kelly sustained the appeal and
annulled IHO Lushing's decision, finding, inter alia: (1) that
plaintiff had not sustained her burden of establishing that the
AI services offered by the UFSD for the summer of 2007 were
not appropriate; (2) that the record showed that the UFSD had
historically offered and provided summer services to both its
regular education and special education students, including
B.D.S.; (3) that the UFSD had offered the AI services referred
to in B.D.S.'s IEP during the summer of 2007 but B.D.S. had
not availed herself of those services; and (4) that the 1HO
had improperly awarded compensatory services absent any
determination that B.D.S. had been denied an FAPE by the
UFSD. (56.1 Stat., ¶¶ 96–99).
B. Procedural History
On April 1, 2008, plaintiff, individually and on behalf of
B.D.S., commenced an action against the UFSD defendants,
Kelly and Ingerman Smith, alleging, inter alia, violations of
the IDEA, the Rehabilitation Act, Sections 1983 and 1985,
the ADA, the New York Education Law and the New York
Constitution. On May 8, 2008, plaintiff, individually and
on behalf of B.D.S., commenced a second action against
the same defendants, the additional UFSD defendants and
the NYSED. Thereafter, Ingerman Smith and Kelly moved,
inter alia, pursuant to Rule 12 of the Federal Rules of Civil
Procedure to dismiss the amended complaints filed in both
actions as against them.
By order entered June 26, 2009, this Court, inter alia: (a)
consolidated Actions No. 1 and 2; (b) denied, inter alia, the
branches of Ingerman Smith's motion seeking dismissal of
the amended complaints pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure; (c) dismissed plaintiff's
Section 1983, Section 1985 and state law claims as against
Ingerman Smith without prejudice pursuant to Rule 12(b)(6)

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of the Federal Rules of Civil Procedure for failure to state
a claim, and sua sponte dismissed plaintiff's Section 1985
claims as against all other defendants without prejudice for
failure to state a claim; (d) dismissed plaintiff's ADA and
Rehabilitation Law claims as against Ingerman Smith, Kelly
and all individual defendants with prejudice for failure to state
a claim; (e) dismissed plaintiff's claims as against Kelly with
prejudice, but granted her leave to amend the pleadings to
assert a claim seeking a declaratory judgment based upon
any ongoing violation of federal law by Kelly; (f) sua sponte
dismissed plaintiff's ADA claims in both actions, and her
Rehabilitation Act claim in Action No. 2, as against the UFSD
and NYSED without prejudice; and (g) directed plaintiff to
retain counsel or move for the appointment of counsel on
behalf of B.D.S. within thirty (30) days or all claims asserted
on behalf of B.D.S. would be dismissed in their entirety
without prejudice.
*12 On July 22, 2009, Ingerman Smith filed a notice of
appeal of so much of the June 26, 2009 order as denied the
branches of its motion seeking dismissal of plaintiff s claims
against it with prejudice as barred by the doctrines of absolute
or qualified immunity. By mandate entered December 28,
2010, the United States Court of Appeals for the Second
Circuit dismissed Ingerman Smith's appeal as not ripe for
review in light of this Court's finding, undisputed by Ingerman
Smith on the appeal, that the amended complaints in both
actions did not adequately allege any conduct by Ingerman
Smith sufficient to state a claim for a violation of plaintiff s
rights. B.D.S. v. Ingerman Smith L.L.P., No. 09–3177–cv (2d
Cir. Oct. 22, 2010) (summary order).
On September 21, 2009, plaintiff filed an amended complaint,
which became the operative pleading in the consolidated
action, and moved for the appointment of counsel on behalf
of B.D.S. By order entered October 2, 2009, plaintiff's motion
for the appointment of counsel was denied with leave to renew
within thirty (30) days upon submission of an appropriate
financial affidavit and plaintiff was advised that her failure
to timely renew the motion, to secure pro bono counsel or to
retain counsel on behalf of B.D.S. would result in dismissal
of the claims asserted on behalf of B.D.S. in their entirety
without prejudice.
Kelly and the NYSED subsequently moved pursuant to Rules
12(b) (1) and (5) of the Federal Rules of Civil Procedure
to dismiss the amended complaint against Kelly as barred
by the doctrine of absolute immunity and against Kelly and
the NYSED for improper service of process, respectively;

and Ingerman Smith moved pursuant to Rules 12(b) and
(c) of the Federal Rules of Civil Procedure to dismiss the
amended complaint as against it and for judgment on the
pleadings, respectively. By order dated April 26, 2011, inter
alia: (1) the branches of Ingerman Smith's motion seeking
judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure were granted and plaintiff's
claims were dismissed in their entirety with prejudice as
against Ingerman Smith; (2) the branch of Kelly's and the
NYSED's motion seeking dismissal of plaintiff s claims
against Kelly as barred by the doctrine of absolute immunity
was granted and plaintiff's claims were dismissed in their
entirety with prejudice as against Kelly; (3) the branch of
Kelly's and the NYSED's motion seeking dismissal of the
amended complaint against the NYSED pursuant to Rule
12(b)(5) for insufficient service of process was granted and
the amended complaint was dismissed in its entirety without
prejudice as against the NYSED; (4) plaintiff's Section 1985
claims were dismissed in their entirety with prejudice; and (5)
all claims asserted on behalf of B.D.S. were dismissed in their
entirety without prejudice. Accordingly, only the following
claims remain in this action; (1) the Section 1983 and 1988
claims asserted by plaintiff, individually, against the UFSD
defendants and additional UFSD defendants; (2) the IDEA,
Rehabilitation Act and ADA claims asserted by plaintiff,
individually, against the UFSD; and (3) Ingerman Smith's
counterclaim against plaintiff.
1. The Amended Complaint in the Consolidated Action
*13 With respect to the remaining Section 1983 claims, the
amended complaint filed in the consolidated action alleges,
inter alia: (1) that Thompson, White, Butta, Cahill, Mellas,
Riddell and Dempsey denied B.D.S. her right to a FAPE
by “deliberately misconstru[ing] special education services
awarded to [B.D.S.] as general education services,” (first
Section 1983 causes of action 9 ) (Amend.Compl ., ¶¶ 7.4,
8.4); (2) that the BOE defendants and Gallagher denied
B.D.S. her right to a FAPE by refusing to enact a “policy
on providing AIS services to their students,” as required
by the New York State Education Law, (Amend.Compl., ¶¶
7.5, 8.7) (second Section 1983 causes of action); (3) that
Gallagher denied B.D.S. her right to a FAPE by “misusing his
authority” to recommend that the BOE defendants approve
her “special education services as AIS services in addition
to the hiring of outside providers for [B.D.S.'s] so called
[sic] ‘AIS' services,” (third Section 1983 causes of action)
(Amend.Compl., ¶¶ 7.6, 8.9); and (4) that the UFSD's attempt
“to strip [B.D.S.] of her right to special education services by

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disguising them * * * [as] AIS Services, is illegal.” (fourth
Section 1983 cause of action (Lushing)) (Amend.Compl.¶
8.12). In addition, plaintiff alleges, inter alia: (1) that the
UFSD violated the IDEA by, inter alia: (a) failing to properly
evaluate B.D.S. or to develop an appropriate IEP; and (b)
denying to fund the private school educational services B.D.S.
needed at Landmark, (Amend. Compl., ¶¶ 11.06–11.14; 12.6–
12.14); and (2) that the UFSD retaliated against plaintiff
in violation of the Rehabilitation Act and the ADA, inter
alia: (a) by rejecting, “for the first time ever,” a CSE's
recommendation, i.e., placement at Landmark for the 2008–
2009 academic year and EY services for B.D.S.'s sibling; (b)
by hiring Kollmar, an outside contractor, to conduct B.D.S.'s
CSE meetings; and (c) as a result of public comments made
by Gallagher about plaintiff and her family, (Amend.Compl.,
¶¶ 13.2–14.1).
9

Plaintiff designates two (2) causes of action
as “First Cause of Action Under 42 USC §
1983,” one pertaining to IHO's Lazan decision,
(Amend.Compl., ¶ 7.4), and one pertaining
to IHO Lushing's decision, (Amend.Compl.,
¶ 8.4). The two (2) causes of action are
essentially identical, with the exception that the
one pertaining to IHO Lazan's decision is asserted
against Thompson, White and Dempsey only,
whereas the cause of action pertaining to IHO
Lushing's decision is asserted against Butta, Cahill,
Mellas and Riddell as well. Similarly, plaintiff
asserts two (2) Section 1983 causes of action
designated as “Second,” “Third,” “Fifth” and
“Sixth,” respectively, (Amend.Compl., ¶¶ 7.5–7.6,
7.11–7.16, 8 .7–8.8, 8.14–8.20), but those duplicate
causes of action are virtually identical, in relevant
part. Accordingly, there is no need to distinguish
between those causes of action.

Plaintiff seeks: (1) judgment declaring (a) that the UFSD
denied B.D.S. a FAPE for the 2006–2007 academic year and
the summer of 2007, (b) that B.D.S. “is entitled to educational
services to compensate for her loss of educational opportunity
caused by the [UFSD's] failure to provide her appropriate
programming and services from September 2006” through
August 30, 2007, and (c) that B.D.S. “has derived meaningful
educational benefit from the special education services she
has received at Landmark School;” (2) reimbursement (a)
“for all costs of [B.D.S.'s] lost [sic] of Educational services,
educational opportunity and documented regression” and (b)
“for all costs of [B.D.S.'s] placement at Landmark School, * *
*,” for the academic years * * * 2006–2007, and the summer

of 2007; and (3) costs and attorney's fees on this action and the
administrative proceedings pursuant to 20 U.S.C. § 1415(i)
(3)(B). (Amend.Compl., pp. 79–80).
*14 Defendants now move pursuant to Rule 56 of the
Federal Rules of Civil Procedure for summary judgment
dismissing plaintiff's remaining claims in their entirety.
Plaintiff has failed to timely oppose the motion.
II. Discussion
A. Rehabilitation Act, ADA and Section 1983 Claims
1. Standard of Review
Summary judgment should not be granted unless “the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(c).
In ruling on a summary judgment motion, the district court
must first “determine whether there is a genuine dispute as to
a material fact, raising an issue for trial.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal
quotations and citations omitted); see Ricci v. DeStefano,
557 U .S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490
(2009) (holding that “[o]n a motion for summary judgment,
facts must be viewed in the light most favorable to the
nonmoving party only if there is a ‘genuine’ dispute as
to those facts.” (Emphasis added) (internal quotations and
citation omitted)). “A fact is material if it ‘might affect the
outcome of the suit under governing law.’ “ Spinelli v. Citv of
New York, 579 F.3d 160, 166 (2d Cir.2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986)); see also Rojas v. Roman Catholic
Diocese of Rochester, 660 F.3d 98, 104 (2d Cir.2011),
cert. denied, 132 S.Ct. 1744 (2012) (accord). “Where the
undisputed facts reveal that there is an absence of sufficient
proof as to one essential element of a claim, any factual
disputes with respect to other elements become immaterial
and cannot defeat a motion for summary judgment.” Chandok
v. Klessig, 632 F.3d 803, 812 (2d Cir.2011); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986) (holding that summary judgment is
appropriate when the non-moving party has no evidentiary
support for an essential element for which it bears the burden
of proof).

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If the district court determines that there is a genuine
dispute as to a material fact, the court must then “resolve
all ambiguities, and credit all factual inferences that could
rationally be drawn, in favor of the party opposing summary
judgment,” Spinelli, 579 F.3d at 166 (internal quotations and
citation omitted), to determine whether there is a genuine
issue for trial. See Ricci, 557 U.S. 557, 129 S.Ct. at 2677. “An
issue is ‘genuine’ if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Roias,
660 F.3d at 104 (quoting Anderson, 477 U.S. at 248, 106
S.Ct. 2505); see also Beyer v. County of Nassau, 524 F.3d
160, 163 (2d Cir.2008) (holding that a genuine issue exists
for summary judgment purposes “where the evidence is such
that a reasonable jury could decide in the non-movant's
favor.” (citation omitted)). “Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Ricci, 557 U.S. 557,
129 S.Ct. at 2677 (quoting Matsushita Elec. Industrial Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986)).
*15 “The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material
fact,” F.D.I.C. v. Great American Ins. Co., 607 F.3d 288,
292 (2d Cir.2010) (quotations and citation omitted); see also
Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010)
(accord), after which the burden shifts to the nonmoving party
to “come forward with specific evidence demonstrating the
existence of a genuine dispute of material fact.” Brown v. Eli
Lilly & Co., 654 F.3d 347, 358 (2d Cir.2011); see also Spinelli,
579 F.3d at 166. Once the moving party meets its burden,
the nonmoving party can only defeat summary judgment “by
coming forward with evidence that would be sufficient, if all
reasonable inferences were drawn in [its] favor, to establish
the existence of” a factual question that must be resolved
at trial. Spinelli, 579 F.3d at 166 (internal quotations and
citations omitted); see also Celotex Corp., 477 U.S. at 323,
106 S.Ct. 2548. “The mere existence of a scintilla of evidence
in support of the [non-movant's] position will be insufficient;
there must be evidence on which the jury could reasonably
find for the [non-movant].” Hayut v. State Univ. of N.Y., 352
F.3d 733, 743 (2d Cir.2003) (alterations in original). “A nonmoving party cannot avoid summary judgment simply by
asserting a ‘metaphysical doubt as to the material facts.’ “
Woodman v. WWOR–TV, Inc., 411 F.3d 69, 75 (2d Cir.2005)
(quoting Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348).
Rule 56(c) (1) of the Federal Rules of Civil Procedure
provides, in relevant part, that “[a] party asserting that a fact

cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record *
* *; or (B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support
the fact.” Rule 56(e) provides, in relevant part, that “[i]f a
party fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as required
by Rule 56(c), the court may: * * * (2) consider the fact
undisputed for purposes of the motion; [or] (3) grant summary
judgment if the motion and supporting materialsincluding the
facts considered undisputedshow that the movant is entitled
to it; * * *.” Fed.R.Civ.P. 56(e). “Rule 56(e) * * * requires the
nonmoving party to go beyond the pleadings and by her own
affidavits, or by the ‘depositions, answers to interrogatories,
and admissions on file [as well as documents, electronically
stored information, stipulations and other materials, see
Fed.R.Civ.P. 56(c)(1)(A) ],’ designate ‘specific facts showing
that there is a genuine issue for trial.” Celotex Corp., 477
U.S. at 324, 106 S.Ct. 2548 (emphasis added). “Rule 56(e)
permits a proper summary judgment motion to be opposed by
any of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves * * *,” Id. (emphasis
added); see also Fitzgerald v. Henderson, 251 F.3d 345, 360–
61 (2d Cir.2001) (“In general, a party opposing a properly
supported motion for summary judgment is not entitled to rely
solely on the allegations of her pleading, but must show that
there is admissible evidence sufficient to support a finding
in her favor on the issue that is the basis for the motion.”),
unless the pleadings are verified in a manner “equivalent of
the oath that would be given with respect to an affidavit,”
Fitzgerald, 251 F .3d at 361, and assert factual matters other
than upon “information and belief.” Id. “In ruling on a motion
for summary judgment, the district court may rely on any
material that would be admissible or usable at trial.” Major
League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d
290, 309 (2d Cir.2008) (internal quotations and citations
omitted). “A party opposing summary judgment does not
show the existence of a genuine issue of fact to be tried
merely by making assertions that are conclusory * * * or
based on speculation.” Id. at 310; see also Brown, 654 F.3d
at 358 (holding that the nonmoving party “may not rely
on conclusory allegations or unsubstantiated speculation” to
defeat summary judgment).
*16 “Rule 56.1 of the Local Civil Rules of the United
States District Courts for the Southern and Eastern Districts
of New York (“Local Rule 56.1”) requires a party moving
for summary judgment to submit a statement of the allegedly

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undisputed facts on which the moving party relies, together
with citation to the admissible evidence of record supporting
each such fact. * * * If the opposing party then fails to
controvert a fact so set forth in the moving party's Rule
56.1 statement, that fact will be deemed admitted.” Giannullo
v. City of New York, 322 F.3d 139, 140 (2d Cir.2003);
see also Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73
(2d Cir.2001) (“A party opposing summary judgment must
respond with a statement of facts as to which a triable issue
remains. See Local Rule 56.1(b). The facts set forth in a
moving party's statement ‘will be deemed to be admitted
unless controverted’ by the opposing party's statement. Local
Rule 56.1(c).”); Local Civ. R. 56.1(a)-(c). Local Civil Rule
56.1(d) requires that “[e]ach [56.1] statement by the movant
or opponent * * *, including each statement controverting
any statement of material fact, [ ] be followed by citation to
evidence which would be admissible, set forth as required
by Fed.R.Civ.P. 56(c).” Courts may decline to “consider as
disputed any statement [in the movants' Local Rule 56.1
statement] supported by admissible evidence to which [the
non-movant] objects, but does not support with evidence,
* * *, in perfect accordance with Local Rule 56.1(d), * *
*.” Feis v. United States, 394 Fed. Appx. 797, 799 (2d Cir.
Oct. 1, 2010) (summary order) (quotations and emphasis
omitted). “[A] Local Rule 56.1 statement is not itself a vehicle
for making factual assertions that are otherwise unsupported
in the record.” Holtz, 258 F.3d at 74. “[A]llegations * * *
cannot be deemed true simply by virtue of their assertion in
a Local Rule 56.1 statement.” Id. at 73. “[W]here there are
no[ ] citations or where the cited materials do not support the
factual assertions in the [56.1] Statements, the Court is free to
disregard the assertion,” Id. at 73–4 (quotations and citations
omitted), and review the record independently. Id. at 74.

* * While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”).
In order to state a claim under either statute, a plaintiff must
allege: (1) that he or she is a qualified individual with a
disability; (2) that the defendants are subject to the relevant
statute; and (3) that he or she was denied the opportunity
to participate in or benefit from the defendants' services,
programs or activities, or was otherwise discriminated against
by defendants, by reason of his or her disability. See Shomo
v. City of New York, 579 F.3d 176, 185 (2d Cir.2009); Harris
v. Mills, 572 F.3d 66, 73–74 (2d Cir.2009).

2. Rehabilitation Act and ADA Claims
Defendants allege that the Rehabilitation Act and ADA
claims set forth in plaintiff's amended complaint must be
dismissed because plaintiff failed to correct the pleading
deficiencies upon which those claims, as set forth in the
original complaints, had previously been dismissed.

Although plaintiff was afforded the opportunity to re-plead
the Rehabilitation Act and ADA claims, she has not corrected
the pleading deficiencies with respect to those claims, i.e., she
only conclusorily refers to those statutes and fails to allege,
inter alia, any discrimination by reason of disability beyond
a purported failure to provide B.D.S. with an FAPE, which
is insufficient to state a claim under either statute. See, e.g.
French v. New York State Department of Education, No. 10–
4298–cv, 2011 WL 5222856, at * 4 (2d Cir. Nov. 3, 2011)
(summary order) (affirming dismissal of the plaintiff's ADA
and Rehabilitation Act claims on the basis that a violation
of the IDEA, without more, is insufficient to support a claim
of disability-based discrimination under the ADA or Section
504 of the Rehabilitation Act); E.H. v. Board of Education

In the June 26, 2009 order, plaintiff's Rehabilitation Act and
ADA claims were dismissed without prejudice on the basis
that plaintiff only conclusorily referred to those statutes in the
original complaints and did not assert any specific cause of
action under those statutes. See, e.g. Ashcroft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
(“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice. *

*17 “Under the ADA and the Rehabilitation Act, a demand
for ‘reasonable accommodations to assure access to an
existing program’ is cognizable; but a demand for ‘additional
or different substantive benefits' is not.” Streck v. Board of
Education of East Greenbush School District, 280 Fed. Appx.
66, 68 (2d Cir. May 30, 2008) (summary order) (quoting
Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir.2000) (per
curiam)); see also J.D. ex rel. J.D. v. Pawlet School District,
224 F.3d 60, 70 (2d Cir.2000) (“[U]nder [Rehabilitation Act]
regulations, a student may have a viable discrimination claim
* * * provided [he or she] establishes that he or she does
not enjoy equal access to the school's programs. * * * [T]he
duty to provide a [FAPE] is not without limits. * * * [T]he
Rehabilitation Act distinguishes ‘between the evenhanded
treatment of qualified handicapped persons and affirmative
efforts to overcome the disabilities caused by handicaps.’
Southeastern Community College v. Davis, 442 U.S. 397,
410, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). While a federal
funds recipient must offer ‘reasonable’ accommodations to
individuals with disabilities to ensure meaningful access to its
federally funded program, § 504 [of the Rehabilitation Act]
does not mandate ‘substantial’ changes to its program.”)

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of Shenendehowa Central School District, 361 Fed. Appx.
156, 161 (2d Cir. Oct. 16, 2009) (summary order) (accord).
Moreover, the record establishes, inter alia, that defendants
identified B.D.S. as a student with a disability and created
and implemented an IEP for B.D.S. with which she had
previously shown significant progress and, therefore, that
B.D.S. had been afforded access to an existing program. See,
e.g. Streck, 280 Fed. Appx. at 68 (finding that the plaintiff had
been afforded access to an existing program by virtue of his
classification as a student with a disability and the creation
and implementation of an IEP); J.D. ex rel. J.D., 224 F.3d
at 71 (finding that the School District's refusal to fund the
infant plaintiff's enrollment in a private school, without more,
did not amount to discrimination where the School District
had proposed a multi-component IEP that responded to the
major recommendations of the infant plaintiff's psychologist,
particularly since the Rehabilitation Act's “regulatory scheme
expresses a preference for mainstreaming students with
disabilities in a school district's regular school environment,
unless that objective cannot be achieved even with the aid
of supplementary services.”) Plaintiff's challenges to the
contents and sufficiency of the IEP developed for B.D.S.
for the 2006–2007 academic year and summer of 2007
demand “additional or different substantive benefits” not
cognizable under the Rehabilitation Act or ADA. See, e.g.
Streck, 280 Fed. Appx. at 68 (affirming dismissal of the
plaintiff's ADA and Rehabilitation Act claims since he
challenged only the content and sufficiency of the IEP
created and implemented for him and, thus, demanded
“additional or different substantive benefits.”) Neither stature
“require[s] a public school district to provide students
with disabilities with potential-maximizing education, only
reasonable accommodations that give those students the same
access to the benefits of a public education as all other
students.” J.D. ex rel. J.D., 224 F.3d at 71. Since the record
establishes that defendants offered B.D.S. a specific program
designed to address her needs within the UFSD and that her
attendance at Landmark was not necessary in order to provide
her with an FAPE, the branch of defendants' motion seeking
dismissal of plaintiff s Rehabilitation Act and ADA claims is
granted and those claims are dismissed in their entirety with
prejudice.
3. Section 1983 Claims
*18 Although monetary damages are available in claims
brought pursuant to Section 1983 for the denial of procedural
safeguards or access to administrative remedies under the
IDEA, see Polera v. Board of Education of Newhurgh
Enlarged Citv School District, 288 F.3d 478, 483 n. 5 (2d

Cir.2002); Quackenbush v. Johnson City School District,
716 F.2d 141, 148 (2d Cir.1983), the record does not
establish that plaintiff was denied such procedural safeguards
or administrative remedies in violation of the IDEA, The
IDEA provides, in relevant part, that “[a]ny State educational
agency, State agency, or local educational agency that
receives assistance under this subchapter shall establish
and maintain procedures in accordance with this section
to ensure that children with disabilities and their parents
are guaranteed procedural safeguards with respect to the
provision of a [FAPE] by such agencies.” 20 U.S.C. § 1415(a).
The relevant procedures required by the IDEA include: (1)
“[a]n opportunity for the parents of a child with a disability
to examine all records relating to such child and to participate
in meetings with respect to the identification, evaluation,
and educational placement of the child, and the provision
of a [FAPE] to such child, and to obtain an independent
educational evaluation of the child;” (2) “[w]ritten prior
notice to the parents of the child * * * whenever the local
educational agency-(A) proposes to initiate or change; or (B)
refuses to initiate or change, the identification, evaluation,
or educational placement of the child, or the provision of a
[FAPE] to the child;” and (3) “[a]n opportunity for any party
to present a complaint(A) with respect to any matter relating
to the identification, evaluation, or educational placement of
the child, or the provision of a [FAPE] to such child; * * *.”
20 U.S.C. § 1415(b)(1), (3) and (6).
The IDEA further provides that “[w]henever a complaint has
been received under subsection (b)(6) * * *, the parents or
the local educational agency involved in such complaint shall
have an opportunity for an impartial due process hearing
* * *.” 20 U.S.C. § 1415(f)(1)(A). The IDEA requires the
hearing officer to render a decision “on substantive grounds
based on a determination of whether the child received a
[FAPE],” 20 U.S.C. § 1415(f)(3)(E) (i), and, where procedural
violations are alleged, allows a hearing officer to “find that
a child did not receive a [FAPE] only if the procedural
inadequacies(I) impeded the child's right to a [FAPE]; (II)
significantly impeded the parents' opportunity to participate
in the decisionmaking process regarding the provision of a
[FAPE] to the parents' child; or (III) caused a deprivation
of educational benefits,” 20 U.S.C. § 1415(f)(3)(E)(ii). “A
decision made in a [due process] hearing * * * shall be
final, except that any party involved in such hearing may
appeal such decision under the provisions of subsection (g)
and paragraph (2).” 20 U.S.C. § 1415(i)(1)(A).

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*19 Subsection (g) provides that “any party aggrieved by the
findings and decision rendered in [an impartial due process]
hearing may appeal such findings and decision to the State
educational agency * * * [which] shall conduct an impartial
review of the [hearing officer's] findings and decision * * *.”
20 U.S.C. § 1415(g). The statute requires the state review
officer to “make an independent decision upon completion of
such review,” 20 U.S.C. § 1415(g)(2), which “shall be final,
except that any party may bring an action under paragraph (2)
[of the statute],” 20 U.S.C. § 1415(i)(l)(B).
In addition, regulations promulgated by the Commissioner
provide the following procedural due process requirements:
(1) that prior written notice be given to the parents of a student
with a disability within “a reasonable time before the school
district proposes to or refuses to initiate or change the * *
* educational placement of the student or the provision of a
[FAPE] to the student;” (2) that “reasonable efforts” be made
to obtain the written informed consent of the parent whenever
required; (3) that written notification be provided of all CSE
meetings at least five (5) days prior to the meeting; (4) that
reasonable steps be taken “to ensure that one or both of the
student's parents are present at each [CSE] meeting or are
afforded the opportunity to participate * * *;” (5) that the
confidentiality of personally identifiable data, information or
records pertaining to the student be preserved; (6) that the
procedural safeguards notice prescribed by the Commissioner
be used; (7) that an independent educational evaluation be
made available at public expense each time the school district
conducts an evaluation with which the parent disagrees; (8)
that procedures be implemented to allow resolution of any
disputes through a voluntary mediation program; and (9) that
opportunities be provided (a) to file a due process complaint
“with respect to any matter relating to the * * * educational
placement of a student with a disability, * * * or the provision
of a [FAPE] to such student,” (b) to request an impartial due
process hearing and (c) to appeal the findings of fact and
decisions of the independent hearing officer to a state review
officer of the NYSED. 8 N.Y.C.R.R. § 200.5.
Since plaintiff was afforded, inter alia: (1) meaningful
opportunities (a) to discuss the educational placement of
B.D.S. and the provision of an FAPE to her, including the
designation of the services provided to B.D.S. as AI services,
as opposed to EY services, and (b) to present due process
complaints relating to the educational placement of B.D.S.
and the provision of an FAPE to her; (2) impartial due process
hearings, at which she raised, inter alia, the designation
of the services provided to B.D.S. as AI services; and (3)

impartial review of the findings and decisions of the IHOs
by a state review officer, she was afforded substantially
all of the procedural safeguards of the IDEA and all of
the process due her. Accordingly, the branch of defendants'
motion seeking dismissal of plaintiff s Section 1983 claims
is granted and those claims are dismissed in their entirety
with prejudice. See, e.g., French, 2011 WL 5222856, at *4
(affirming dismissal of Section 1983 claim which lacked any
factual basis other than the alleged IDEA violations and the
related allegation of discrimination); Streck, 280 Fed. Appx.
at 68 (holding that the plaintiffs may not rely on Section 1983
to pursue monetary damages for violations of the IDEA where
they had been afforded a hearing by an IHO and review by
an SRO).
a. Monell Claim
*20 Plaintiff has also not established a claim against the
UFSD pursuant to Monell v. Department of Social Services
of City of New York, 436 U.S. 658, 690–1, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978).
A municipality or municipal entity cannot be held liable
under Section 1983 on a respondeat superior theory. See
Monell, 436 U .S. at 691, 98 S.Ct. 2018; see also Connick v.
Thompson, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (5–
4 decision) (holding that under Section 1983, governmental
bodies are not vicariously liable for their employees' actions);
Los Angeles County, California v. Humphries, 131 S.Ct. 447,
452, 178 L.Ed.2d 460 (2010) ( “[A] municipality cannot be
held liable solely for the acts of others, e.g., solely because it
employs a tortfeasor.” (emphasis in original) (quotations and
citation omitted)). Rather, “a plaintiff must demonstrate that,
through its deliberate conduct, the municipal[ ] [entity] was
the ‘moving force’ behind the alleged injury.” Roe v. City of
Waterbury, 542 F.3d 31, 37 (2d Cir.2008) (quoting Board of
County Commissioners of Bryan County, Okl. v. Brown, 520
U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)): see
also Amnesty America v. Town of West Hartford, 361 F.3d
113, 125 (2d Cir.2004) ( “Demonstrating that the municipality
itself caused or is implicated in the constitutional violation is
the touchstone of establishing that a municipality can be held
liable for unconstitutional actions taken by [its] employees.”)
“For purposes of § 1983, school districts are considered to be
local governments and are subject to similar liability as local
governments under Monell.” Kantrowitz v. Uniondale Union
Free School District, 822 F.Supp.2d 196, 217 (E.D.N.Y.2011)
(quoting Booker v. Board of Education. Baldwinsville Central
School District, 238 F.Supp.2d 469, 475 (N.D.N.Y.2002)); see

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also Schreiber v. East Ramapo Central School District, 700
F.Supp.2d 529, 560 (S.D.N.Y.2010); Rafano v. Patchogue–
Medford School District, No. 06–CV–5367, 2009 WL
789440, at * 8 (E.D.N.Y. Mar. 20, 2009). Thus, to prevail on
a Section 1983 claim against a school district, a plaintiff must
show: “(1) actions taken under color of law; (2) deprivation of
a constitutional or statutory right; (3) causation; (4) damages;
and (5) that an official policy of the [school district] caused the
constitutional injury.” Roe, 542 F.3d at 36; see also Connick,
131 S.Ct. at 1359 (“Plaintiffs who seek to impose liability
on local governments under Section 1983 must prove that
‘action pursuant to official municipal policy’ caused their
injury.” (quoting Monell, 436 U.S. at 691, 98 S.Ct.2018));
Humphries, 131 S.Ct. at 452 (“[A] municipality may be held
liable when execution of a government's policy or custom
... inflicts the injury.” (emphasis in original) (quotations and
citation omitted)).
“A municipal policy may be pronounced or tacit and reflected
in either action or inaction.” Cash v. County of Erie, 654 F.3d
324, 334 (2d Cir.2011), cert. denied, 132 S.Ct. 1741 (2012),
“In the latter respect, a ‘[school district's] policy of inaction
in light of notice that its program will cause constitutional [or
statutory] violations is the functional equivalent of a decision
by the [school district] itself to violate the Constitution [or
federal law].’ “ Id. (quoting Connick, 131 S.Ct. at 1360).
*21 “Official municipal policy includes the decisions of
a government's lawmakers, the acts of its policymaking
officials, and practices so persistent and widespread as to
practically have the force of law.” Connick, 131 S.Ct. at 1359;
see also Hurdle v. Board of Education of City of New York,
113 Fed. Appx. 423, 424–25 (2d Cir.2004) (summary order)
(“A school district's liability under Monell may be premised
on any of three theories: (1) that a district employee was
acting pursuant to an expressly adopted official policy; (2)
that a district employee was acting pursuant to a longstanding
practice or custom; or (3) that a district employee was acting
as a ‘final policymaker.’ “ (quoting Lytle v. Carl, 382 F.3d
978, 982 (9th Cir.2004) (quotations and citations omitted))).
In addition, “[i]n limited circumstances, a * * * decision not
to train certain employees about their legal duty to avoid
violating citizens' rights may rise to the level of an official
government policy for purposes of Section 1983.” Connick,
131 S.Ct at 1359.
Moreover, “where a policymaking official exhibits deliberate
indifference to constitutional [or statutory] deprivations
caused by subordinates, such that the official's inaction

constitutes a deliberate choice, that acquiescence may be
properly thought of as a [municipal] policy or custom that is
actionable under § 1983.” Amnesty America, 361 F.3d at 126.
The deliberate indifference standard is “a stringent standard
of fault,” Cash, 654 F.3d at 334 (quoting Connick, 131 S.Ct.
at 1360), with “[t]he operative inquiry [being] whether th[e]
facts demonstrate that the policymaker's inaction was the
result of ‘conscious choice’ and not ‘mere negligence.’ “
Id. (quoting Connick, 131 S.Ct. at 1360). “Thus, deliberate
indifference may be inferred where the need for more or better
supervision to protect against constitutional [or statutory]
violations was obvious, * * * but the policymaker failed
to make meaningful efforts to address the risk of harm to
plaintiffs * * *.” Id. (quotations, alterations and citations
omitted).
The basis of plaintiff's Monell claim against the UFSD is
that it, acting through its officials, “illegal[ly]” attempted “to
strip [B.D.S.] of her right to special education services by
disguising them * * * [as] AIS services * * *,” as opposed
to EY services. (Amend.Compl., § 8.12). Plaintiff does not
allege that any of the individual defendants acted pursuant
to an official policy or longstanding practice or custom or
challenge the UFSD's supervision or training of the individual
defendants, nor does the record contain any evidence from
which a reasonable jury could find that any policymaking
official of the UFSD exhibited deliberate indifference to
a known or obvious constitutional or statutory deprivation
caused by a subordinate.
To the extent plaintiff's Monell claim is based upon the acts of
the UFSD's final policymakers, i.e., the BOE defendants, that
claim is merely a reiteration of her IDEA claim, insofar as she
challenges only the BOE defendants' noncompliance with the
IDEA, i.e ., its purported failure to enact a policy on providing
AI services to its students. As noted above, plaintiff has not
established that she was denied any procedural safeguards
or administrative remedies under the IDEA with respect to
such a claim. See, e.g. French v. New York State Department
of Education, No. 5:04–CV–434, 2010 WL 3909163, at *
11 (N.D.N.Y. Sept. 30, 2010), aff'd, ––– Fed. Appx. ––––,
2011 WL 5222856 (2d Cir. Nov. 3, 2011). Nor is there any
basis in the record from which a reasonable fact finder may
infer: (1) that the Board of Education in fact failed to enact
a policy on providing AI services to the students within the
UFSD; or (2) that the Landmark program could have been
provided to B.D.S. as anything other than AI services absent
any determination that B.D.S. qualified for EY services or
that the Commissioner had ever approved the Landmark

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program as an EY services program. Accordingly, the branch
of defendants' motion seeking summary judgment dismissing
plaintiff's Section 1983 Monell claim is granted and plaintiff's
Section 1983 Monell claim is dismissed in its entirety with
prejudice.
B. IDEA Claim
1. Standard of Review
*22 “A summary judgment approach to IDEA cases *
* * is different” than in other cases. T.Y. v. New York
City Department of Education, 584 F.3d 412, 418 (2d
Cir.2009), cert denied, 130 S.Ct. 3277, 176 L.Ed.2d 1183
(2010). “Instead of dispute resolution, a motion for summary
judgment can serve as an aid to the court within a statutory
scheme whose purpose is to ensure that children with
disabilities receive the educational benefits to which they
are entitled.” Id.; see also T.P. ex rel. S.P. v. Mamaroneck
Union Free School District, 554 F.3d 247, 252 (2d Cir.2009)
(“Summary judgment in th[e] context [of an IDEA case]
involves more than looking into disputed issues of fact;
rather it is a pragmatic procedural mechanism for reviewing
administrative decisions.” (quotations and citation omitted)).
“Though the court must show deference to administrative
board findings, the court is also empowered to conduct an
independent review of the record as a whole and even hear
additional evidence.” T.Y., 584 F.3d at 418. With regard to
the role of Rule 56.1 statements on a motion for summary
judgment in an IDEA case, the Second Circuit has held that
“[a] rule 56.1 statement, while not required, may assist the
court's inquiry into whether IDEA procedures were followed
and whether the result was reasonably designed to confer
educational benefits. But while a Rule 56.1 statement may
assist the court in reviewing particular issues, it is not in
and of itself dispositive.” T.Y., 584 F.3d at 418. “The court's
inquiry [on a motion for summary judgment] is a resultsbased standard in many respects, concerned more with a just
outcome for a disabled student than with judicial efficiency.”
Id.
The IDEA provides, in relevant part, that “ * * * [a]ny
party aggrieved by the findings and decision made [by the
state review officer on appeal of the findings of fact and
decision of an IHO], shall have the right to bring a civil
action with respect to the [due process] complaint presented
pursuant to this section, which action may be brought * * *
in a district court of the United States, without regard to the
amount in controversy.” 20 U.S.C. § 1415(i)(2)(A). “In any
action brought under th[e] [IDEA], the court(i) shall receive

the records of the administrative proceedings; (ii) shall hear
additional evidence at the request of a party; and (iii) basing
its decision on the preponderance of the evidence, shall grant
such relief as the court determines is appropriate.” 20 U.S.C.
§ 1415(i)(2)(C).
Nonetheless, “the role of the federal courts in reviewing
state educational decisions under the IDEA is circumscribed.”
Gagliardo v. Arlington Central School District, 489 F.3d
105, 112 (2d Cir.2007) (quotations and citation omitted);
see also P. ex rel. Mr. and Mrs. P. v. Newington Board of
Education, 546 F.3d 111, 118 (2d Cir.2008); D.F. ex rel. N.F.
v. Ramapo Central School District, 430 F.3d 595, 598 (2d
Cir.2005) (holding that judicial review of state administrative
decisions under the IDEA is “strictly limit [ed].”) “While the
district court must base its decision on the preponderance of
the evidence, it must give due weight to the administrative
proceedings, mindful that the judiciary generally lacks the
specialized knowledge and experience necessary to resolve
persistent and difficult questions of educational policy.” A.C.
ex rel. M.C. v. Board of Education of Chappaqua Central
School District, 553 F.3d 165, 171 (2d Cir.2009) (quotations,
alterations and citations omitted); see also Board of Education
of Hendrick Hudson Central School District, Westchester
County v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73
L.Ed.2d 690 (1982) (“[T]he provision that a reviewing court
base its decision on the ‘preponderance of the evidence’
is by no means an invitation to the courts to substitute
their own notions of sound educational policy for those of
the school authorities which they review. * * * The fact
that [the IDEA] requires that the reviewing court ‘receive
the records of the [state] administrative proceedings' carries
with it the implied requirement that due weight shall be
given to these proceedings.”); P. ex rel. Mr. and Mrs. P .,
546 F.3d at 118 (“Although school officials' decisions are
subject to ‘independent’ judicial review, the responsibility for
determining whether a challenged IEP will provide a child
with an appropriate public education rests in the first instance
with administrative hearing and review officers. * * * [W]hile
federal courts do not simply rubber stamp administrative
decisions, they are expected to give ‘due weight’ to these
proceedings * * *.” (quotations and citation omitted)).
“[C]ourts must be careful to avoid imposing their view of
preferable educational methods upon the States.” Rowley,
at 207, 102 S.Ct. 3034. “In reviewing the administrative
proceedings, it is critical to recall that IDEA'S statutory
scheme requires substantial deference to state administrative
bodies on matters of educational policy.” Cerra v. Pawling
Central School District, 427 F.3d 186, 191 (2d Cir.2005).

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2012 WL 1655540

*23 The Supreme Court has held that in suits brought under
the IDEA, the appropriate inquiry is two-fold: (1) whether
the State complied with the procedures set forth in the IDEA;
and (2) whether the IEP developed through the IDEA'S
procedures was “reasonably calculated to enable the child to
receive educational benefits.” Rowley, at 206–07, 102 S.Ct.
3034. If both of those requirements are met, “the State has
complied with the obligations imposed by Congress and the
courts can require no more.” Id. at 207, 102 S.Ct. 3034.
Moreover, “[i]f a state fails in its obligation to provide a
[FAPE] to a handicapped child, the parents may enroll the
child in a private school and seek retroactive reimbursement
for the cost of the private school from the state.” Frank
G. v. Board of Education of Hyde Park, 459 F.3d 356,
363 (2d Cir.2006); see also Forest Grove School District v.
T.A., 557 U.S. 230, 129 S.Ct. 2484, 2496, 174 L.Ed.2d 168
(2009) (holding that the IDEA “authorizes reimbursement
for the cost of private special-education services when a
school district fails to provide a FAPE and the private-school
placement is appropriate * * *.”) When a plaintiff seeks
tuition reimbursement and either the procedural requirements
of the IDEA have not been met or the school district has failed
to provide the child with an FAPE, a court must also inquire
into “whether the private schooling obtained by the parents
[was] appropriate to the child's needs.” T.Y., 584 F.3d at 417
(quoting Cerra, 427 F.3d at 192); see also T.P. ex rel. S.P., 554
F.3d at 252; Frank G., 459 F.3d at 363. The party commencing
the administrative review bears the burden of persuasion as to
the appropriateness of the child's IEP and the private services
for which the parent is seeking reimbursement. See T.P. ex rel.
S.P., 554 F.3d at 252; A.C. ex rel. M.C., 553 F.3d at 171–72;
Gagliardo, 489 F.3d at 112.
2. Substantive Violations
“By passing the [IDEA], Congress sought primarily to make
public education available to handicapped children. But in
seeking to provide such access to public education, Congress
did not impose upon the States any greater substantive
educational standard than would be necessary to make such
access meaningful.” Rowley, 458 U.S. at 192, 102 S.Ct.
3034. The IDEA “imposes no clear obligation upon recipient
States beyond the requirement that handicapped children
receive some form of specialized education * * *.” Id. at
195, 102 S.Ct. 3034. “[T]he requirement that a State provide
specialized educational services to handicapped children
generates no additional requirement that the services so
provided be sufficient to maximize each child's potential

commensurate with the opportunity provided other children.”
Id. at 198, 102 S.Ct. 3034 (quotations omitted); see also
Cerra, 427 F.3d at 195 (“A school district is not * *
* required to furnish every special service necessary to
maximize each handicapped child's potential.” (quotations
and citation omitted)). “Rather, Congress sought primarily to
identify and evaluate handicapped children, and to provide
them with access to a free public education .” Rowley, 458
U.S. at 200, 102 S.Ct. 3034.
*24 Under the IDEA, an FAPE “consists of educational
instruction specially designed to meet the unique needs
of the handicapped child, supported by such services as
are necessary to permit the child ‘to benefit’ from the
instruction.” Rowley, 458 U.S. at 188–89, 102 S.Ct. 3034;
see also Frank G., 459 F.3d at 363 (“A free appropriate
public education must include special education and related
services tailored to meet the unique needs of a particular
child, and be reasonably calculated to enable the child
to receive educational benefits.” (quotations and citations
omitted)). “[S]uch instruction and services [must] be provided
at public expense and under public supervision, meet the
State's educational standards, approximate the grade levels
used in the State's regular education, and comport with the
child's IEP.” Rowley, 458 U.S. at 189, 102 S.Ct. 3034. A
child receives an FAPE “if personalized instruction is being
provided with sufficient supportive services to permit the
child to benefit from the instruction, and the other items
on the definitional checklist are satisfied * * *.” Id. “In
addition, the IEP, and therefore the personalized instruction,
should be formulated in accordance with the requirements
of the [IDEA] and, if the child is being educated in the
regular classrooms of the public education system, should be
reasonably calculated to enable the child to achieve passing
marks and advance from grade to grade.” Id. at 203–04, 102
S.Ct. 3034.
The Second Circuit has held that “a school district fulfills
its substantive obligations under the IDEA if it provides an
IEP that is likely to produce progress, not regression, and if
the IEP affords the student with an opportunity greater than
mere trivial advancement.” Cerra, 427 F,3d at 195 (quotations
and citation omitted); see also P. ex rel. Mr. and Mrs. P.,
546 F.3d at 119 (“Under th[e] second ‘substantive’ prong
of the Rowley test, * * * the door of public education must
be opened in a ‘meaningful way,’ and the IEP must provide
the opportunity for more than only ‘trivial advancement.’
“ (internal quotations and citations omitted)); D.F. ex rel.
N.F., 430 F.3d at 598 (“A valid IEP should provide for the

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opportunity for more than trivial advancement * * *, such that
the door of public education is opened for a disabled child
in a meaningful way.” (quotations and citations omitted)).
Courts “must examine the record for objective evidence
that indicates whether the child is likely to make progress
or regress under the proposed plan.” Gagliardo, 489 F.3d
at 113 (quotations and citation omitted); see also Cerra,
427 F.3d at 195. “[I]n the regular classrooms of a public
school system, the achievement of passing marks and regular
advancement from grade to grade will be one important factor
in determining educational benefit.” Frank G., 459 F.3d at
364 (quoting Rowley, 458 U .S. at 207 n. 28, 102 S. Ct 3034);
see also Cerra, 427 F.3d at 196 (“[W]hen a learning-disabled
child is in a mainstream class, the attainment of passing grades
and regular advancement from grade to grade will generally
constitute evidence of satisfactory progress .” (quotations and
citation omitted)).
*25 “Moreover, there is a strong preference for children
with disabilities to be educated, to the maximum extent
appropriate, together with their non-disabled peers.” A.C.
ex rel. M.C., 553 F.3d at 173 (quotations and citation
omitted); see also Rowley, 458 U.S. at 202, 102 S.Ct. 30304
(holding that the IDEA “requires participating States to
educate handicapped children with nonhandicapped children
whenever possible.”); 8 N.Y.C.R.R. § 200.2(b) (“Each board
of education * * * shall adopt written policy that establishes
administrative practices and procedures: (1) to ensure that
students with disabilities residing in the district have the
opportunity to participate in school district programs to the
maximum extent appropriate to the needs of the student
* * * [and] (4) to provide special services or programs,
to the extent appropriate to the needs of the student, to
enable the student to be involved in and progress in the
general education curriculum.”) “Educating a handicapped
child in a regular education classroom ... is familiarly known
as ‘mainstreaming’.” P. ex rel. Mr. and Mrs. P., 546 F.3d
at 119 (quotations and citation omitted). Mainstreaming is
inappropriate, however, “where the nature or severity of the
handicap is such that education in regular classes cannot be
achieved satisfactorily.” Id. (quotations and citation omitted).
In determining whether an IEP places a student in the
least restrictive environment, courts should consider: (1)
“whether education in the regular classroom, with the use of
supplemental aids and services, can be achieved satisfactorily
for a given child, and, [2] if not, then whether the school has
mainstreamed the child to the maximum extent appropriate.”
Id. (quotations and citations omitted). With respect to the first
prong, the following factors are relevant: “(1) whether the

school district has made reasonable efforts to accommodate
the child in a regular classroom; (2) the educational benefits
available to the child in a regular class, with appropriate
supplementary aids and services, as compared to the benefits
provided in a special education class; and (3) the possible
negative effects of the inclusion of the child on the education
of the other students in the class.” Id. at 120. Nonetheless,
“this list of factors is not exhaustive; [and] courts * * *
must engage in an individualized and fact-specific inquiry
into the nature of the student's condition and the school's
particular efforts to accommodate it, ever mindful of the
IDEA'S purpose of educating children with disabilities ‘to
the maximum extent appropriate’ together with their nondisabled peers.” Id. (quotations and citation omitted).
“Because administrative agencies have special expertise in
making judgments concerning student progress, deference is
particularly important when assessing an IEP's substantive
adequacy.” Cerra, 427 F.3d at 195; see also Frank G., 459
F.3d at 367 (“[A]n assessment of educational progress is a
type of judgment for which the district court should defer
to the SRO's educational experience, particularly where ...
the district court's decision was based solely on the record
that was before the SRO.” (quotations and citation omitted)).
“If the SRO's decision conflicts with the earlier decision of
the IHO, the IHO's decision ‘may be afforded diminished
weight.’ “ A.C. ex rel. M.C., 553 F.3d at 171 (quoting
Gagliardo, 489 F.3d at 113 n. 2). Courts must “ ‘defer to
the final decision of the state authorities,’ even where ‘the
reviewing authority disagrees with the hearing officer.’ “ Id.
(quoting Karl ex rel. Karl v. Board of Education of Geneseo
Central School District, 736 F.2d 873, 877 (1984)).
*26 IHO Lazan's and SRO Kelly's findings of fact and
decisions were well-reasoned and thorough and, therefore,
deserve deference. 10 See, e.g. T.P. ex rel. S.P., 554 F.3d
at 254; P., 546 F.3d at 118 (“Deference is particularly
appropriate when ... the state hearing officers' review has been
thorough and careful.” (quotations and citation omitted));
Cerra, 427 F.3d at 196 (accord). Moreover, there is objective
evidence in the record indicating: (1) that B.D.S. was
likely to progress with the programs and services being
offered within the UFSD by the CSE during the 2006–2007
academic year; (2) that the UFSD's recommendations were
in accordance with the strong policy preference to educate
students in the least restrictive environment appropriate to
the student's needs and abilities; and (3) that B.D.S. did not
qualify for EY services during the summer of 2007. The
IEP for B.D.S. for the 2006–2007 academic year included

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2012 WL 1655540

daily resource room services, a daily one-to-one tutorial
period with a special education teacher, individual reading
remediation services twice a week and assistive technology
and testing accommodations, such as a graphic organizer,
Inspiration software program, preferential seating, a personal
auditory enhancer and a laptop. Those special education
services and supports being offered to B.D.S. within the
UFSD were tailored to meet B.D.S.'s specific needs and
were essentially similar, or more, than the services that had
been provided to her during the previous academic year
and from which B.D.S. had received significant educational
benefit. Specifically, B.D.S. had performed at or above
grade level in almost every area tested and had met grade
level standards, advancing a grade each academic year,
with the special education programs and services previously
provided to her. Accordingly, the services and programs being
offered to B.D.S., which increased the services previously
provided to B.D.S. by increasing the frequency of the
resource room component and adding one daily period of
individual tutoring by a special education teacher, were likely
to produce continued non-trivial progress during the 2006–
2007 academic year and, thus, did not deprive B.D.S. of
an FAPE. See, e.g. S.H. ex rel. W.H. v. Eastchester Union
Free School District, 10–cv–3927, 2011 WL 6108523, at *
10 (S.D.N.Y. Dec. 8, 2011) (“Although past progress is not
dispositive, it does strongly suggest that an IEP modeled
on a prior one that generated some progress was reasonably
calculated to continue that trend.” (quotations and citations
omitted)).
10

Since IHO Lushing's decision conflicts with
SRO Kelly's decision, IHO Lushing's decision is
afforded diminished weight. See A.C. ex rel. M.C.,
553 F.3d at 171.

With respect to summer of 2007, B.D.S. did not qualify
for EY services, insofar as there is nothing in the record
indicating that she experienced any substantial regression
during extended school breaks. In any event, plaintiff's failure
to appeal IHO Lazan's January 19, 2007 decision finding
that B.D.S. was not entitled to EY services and that her
placement at Landmark during the summer of 2006 was
“clearly temporary” precludes judicial review of that issue,
absent any indication that pursuing an appeal before the
SRO would have been futile. See, e.g. Coleman v. Newburgh
Enlarged City School District, 503 F.3d 198, 204–05 (2d
Cir.2007); J.S. ex. rel. N.S. v. Attica Central Schools, 386 F.3d
107, 112 (2d Cir.2004).

*27 In sum, there is no apparent reason to second guess
the reasonable determinations of IHO Lazan and the SRO:
(1) that the UFSD had provided B.D.S. with an FAPE for
the 2006–2007 academic year; and (2) that B.D.S. was not
entitled to EY services at Landmark during the summer of
2007.
3. Procedural Violations
Not “every procedural error in the development of an IEP
renders that IEP legally inadequate under the IDEA.” A.C.
ex rel. M.C., 553 F.3d at 172. “Rather, a procedural flaw
necessitates a finding that a child was denied his or her right
to a [FAPE] only if it results in the loss of an educational
opportunity or seriously infringes the parents' opportunity
to participate in formulating the IEP.” J.G. ex rel. N.G. v.
Kirvas Joel Union Free School District, 777 F.Supp.2d 606,
638 (S.D.N.Y.2011); see also Matrejek v. Brewster Central
School District, 471 F.Supp.2d 415, 419 (S.D.N.Y.2007),
aff'd, 293 Fed. Appx. 20 (2d Cir.2008) (“Only procedural
irregularities that cause substantive harm-meaning that they
individually or cumulatively result in the loss of educational
opportunity or seriously infringe on a parent's participation in
the creation or formulation of the IEP-constitute a denial of
a FAPE.”). In considering whether a school district satisfied
the procedural requirements of the IDEA, courts must “focus
on whether the [parents] had an adequate opportunity to
participate in the development of [the] IEP.” T.P. ex rel. S.P.,
554 F.3d at 253 (alterations in original) (quoting Cerra, 427
F.3d at 192). “Parental participation requires an opportunity
to examine records, participate in meetings, and to obtain an
independent evaluation.” T.L. ex rel. B.L. v. Department of
Education of City of New York, No. 10–CV–3125, 2012 WL
1107652, at * 14 (E.D.N.Y. Mar. 30, 2012) (quoting Z.D. v.
Niskayuna Central School District, No, 06–CV–1190, 2009
WL 1748794, at * 3 (N.D.N.Y. June 19, 2009)).
Plaintiff actively and meaningfully participated in the IEP
process, had considerable input into the services and
programs to be provided to B.D.S. for the 2006–2007
academic year and summer of 2007, obtained independent
evaluations and was afforded the opportunity to examine all
relevant records. The IEP from the May 26, 2006 annual
CSE meeting, to which B.D.S.'s parents had consented, was
provided to plaintiff in advance of the July 31, 2006 meeting,
which was held to determine whether any adjustments should
be made to the programs provided in the IEP following
B.D.S.'s attendance at Landmark's summer program during
the summer of 2006. Thus, plaintiff was afforded meaningful
opportunity to review B.D.S .'s IEP for the 2006–2007

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2012 WL 1655540

academic year, including the goals and objectives contained
therein, and to raise objections and questions to the IEP.
Notwithstanding that defendants offered to provide B.D.S.
with the same, or more, services and programs during the
2006–2007 academic year from which she had previously
received educational benefit, plaintiff enrolled B.D.S. in
Landmark. Plaintiff's “actions suggest that [she] seek[s] a
‘veto’ over school choice, rather than ‘input'a power the IDEA
clearly does not grant [her].” T.Y., 584 F.3d at 420.
*28 Moreover, services for B.D.S. for the summer of 2007
were discussed during the annual CSE meeting held on June
15, 2007, at which plaintiff actively participated, and B.D.S.
was offered reading remediation three (3) hours per week
for eight (8) weeks as an AI service during the summer of
2007, of which she failed to avail herself. Accordingly, any
procedural irregularities during the development of the IEP
or summer program were not significant enough to have
rendered them legally inadequate. See, e.g. R.R. ex rel. M.R.
v. Scarsdale Union Free School District, 615 F.Supp.2d 283,
292 (S.D.N.Y.2009), aff'd, 366 Fed. Appx. 239 (2d Cir.2010);
T.L. ex rel. B.L., 2012 WL 1107652, at * 14; S.H. ex rel. W.H.,
2011 WL 6108523, at * 6.
Since B.D.S.'s IEP for the 2006–2007 academic year was not
procedurally flawed or substantively deficient, and she did not
qualify for EY services during the summer of 2007, the branch
of defendants' motion seeking summary judgment dismissing
plaintiff's IDEA claims against the UFSD is granted and
plaintiff's IDEA claims are dismissed in their entirety with
prejudice. 11

11

In light of this determination, it is not necessary to
consider the appropriateness of plaintiff's unilateral
placement of B.D.S. at Landmark. See, e.g. T.P. ex
rel. S.P., 554 F.3d at 254; A.C. ex rel. M.C., 553 F.3d
at 173.

III. Conclusion
For the reasons stated herein, defendants' motion for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure is granted and all of plaintiff's remaining claims
in this action are dismissed with prejudice. The Clerk of the
Court is directed to enter judgment in favor of defendants and
against plaintiff on all of the claims in the amended complaint.
Ingerman Smith is directed to advise the Court in writing, on
or before May 23, 2012, whether it intends to prosecute its
counterclaim against plaintiff, which is the only unresolved
claim in this action, or its counterclaim will be dismissed with
prejudice for failure to prosecute pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
The Clerk of the Court is directed to service notice of entry
of this Order on all parties in accordance with Rule 77(d)(1)
of the Federal Rules of Civil Procedure, including mailing a
copy of the Order to the pro se plaintiff at her last known
address, see Fed.R.Civ.P. 5(b)(2)(C).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 1655540

End of Document

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21

Hayward v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 3580286

2012 WL 3580286
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
David HAYWARD, Plaintiff,
v.
The CITY OF NEW YORK; P.O. Jeffrey
Hill, 73rd Precinct, Badge# Unknown;
P.O. John Doe, 73rd Precinct, Defendants.
No. 12–CV–3220 (ENV).
|
Aug. 17, 2012.
Attorneys and Law Firms
David Hayward, Sonyea, NY, pro se.

MEMORANDUM AND ORDER
VITALIANO, District Judge.
*1 Plaintiff David Hayward, who is currently incarcerated
at the Groveland Correctional Facility, files this pro se civil
rights complaint pursuant to 42 U.S.C. § 1983 against the City
of New York and several individual defendants. Plaintiff's
request to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915 is granted. For the reasons discussed below, the City
of New York and defendant John Doe are dismissed from the
action. The claims, however, against defendant Jeffrey Hill
shall proceed.

BACKGROUND
Plaintiff alleges that on August 16, 2011, he was falsely
arrested at his home in Brooklyn, New York by Police Officer
Jeffrey Hill of the 73rdr Precinct. He states that the charges
against him were subsequently dismissed, but resulted in a
parole violation and one-year prison sentence. Plaintiff seeks
monetary damages.

STANDARD OF REVIEW
Pro se complaints are held to less stringent standards than
pleadings drafted by attorneys. The Court is required to read a

plaintiff's pro se complaint liberally and interpret it as raising
the strongest arguments it suggests. Erickson v. Pardus, 551
U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hughes v.
Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980);
Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191–
93 (2d Cir.2008). Moreover, at the pleadings stage of the
proceeding, the Court must assume the truth of “all wellpleaded, nonconclusory factual allegations” in the complaint.
Kiobel v. Roval Dutch Petroleum Co., 621 F.3d 111, 123 (2d
Cir.2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)). 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).
Under 28 U.S.C. § 1915A, a district court “shall review,
before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.” 28 U.S.C. §
1915A. Upon review, a district court shall dismiss a prisoner's
complaint sua sponte 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.” Id.; Liner v. Goord, 196 F.3d 132, 134 & n. 1
(2d Cir.1999) (noting that under the Prison Litigation Reform
Act, sua sponte dismissal of frivolous prisoner complaints is
not only permitted but mandatory); see also Tapia–Ortiz v.
Winter, 185 F.3d 8, 11 (2d Cir.1999).

DISCUSSION
Claims against the City of New York and John Doe
Plaintiffs claims against the City of New York must be
dismissed. A municipality can be liable under § 1983 only
if a plaintiff can show that a municipal policy or custom
caused the deprivation of his constitutional rights. See Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 690–91, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978). The doctrine of respondeat superior
cannot be used to establish municipal liability. Connick v.
Thompson, ––– U.S. ––––, ––––, 131 S.Ct. 1350, 1359, 179
L.Ed.2d 417 (2011); Cash v. County of Erie, 654 F.3d 324,
333–34 (2d Cir.2011); Dzugas–Smith v. Southhold Union
Free School Dist., No. 08 CV 1319, 2012 WL 1655540,
at *20 (E.D.N.Y. May 9, 2012). Here, plaintiff does not
allege, and nothing in his complaint suggests, that any of the
allegedly wrongful acts or omissions on the part of any City
employee are attributable to a municipal policy or custom.

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1

Hayward v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 3580286

Thus, plaintiff has not made a showing, in his pleadings,
sufficient to impose Monell liability on the City of New York.
*2 Furthermore, “[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.” * Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006)
(quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1991)).
Here, although plaintiff names Police Officer John Doe as a
defendant in the caption of the complaint, he fails to make any
allegations against or otherwise discuss that defendant in the
body of his pleading. Plaintiff's claims against Police Officer
John Doe are, therefore, dismissed without prejudice.

CONCLUSION
Accordingly, all claims against the City of New York and
Police Officer John Doe are dismissed without prejudice
pursuant to 28 U.S.C. § 1915A. No summonses shall issue
as to these defendants and the Clerk of Court is directed to
End of Document

amend the caption to reflect their dismissal. Plaintiff's claims,
however, shall proceed against Police Officer Jeffrey Hill of
the 73rd Precinct.
The United States Marshal Service is directed to serve the
summons, complaint, and this Memorandum and Order upon
the remaining defendant without prepayment of fees. A
courtesy copy of the same papers shall be mailed to the
Corporation Counsel for the City of New York. All pretrial
matters are referred to Magistrate Judge Cheryl L. Pollak. 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 purpose of an appeal. Coppedge
v. United States, 269 U.S. 438, 444–45 (1962).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 3580286

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2

Jackson v. County of Nassau, Not Reported in F.Supp.2d (2010)
2010 WL 335581

KeyCite Yellow Flag - Negative Treatment
Distinguished by Hogan v. County of Lewis, N.Y., N.D.N.Y., March 8,
2013

2010 WL 335581
Only the Westlaw citation is currently available.

has a policy of failing to investigate criminal complaints
regarding these types of violations if they are filed by pretrial
detainees or criminal defendants. The defendants now move,
jointly, for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. For the reasons set forth
below, defendants' motion is granted.

This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
E.D. New York.
Erwin JACKSON, Plaintiff,
v.
COUNTY OF NASSAU, Nassau County
Police Department, and Office of the Nassau
County District Attorney, Defendants.
No. 07-CV-245 (JFB)(AKT).
|
Jan. 22, 2010.
Attorneys and Law Firms
Erwin Jackson, pro se.
Ralph J. Reissman and Sara A. Wells of the Nassau County
Attorney's Office, Mineola, NY, for defendants.

MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
*1 On January 17, 2007, pursuant to 42 U.S.C. § 1983, pro se
plaintiff Erwin Jackson (“plaintiff” or “Jackson”) brought this
action against defendants County of Nassau (“the County”),
Nassau County Police Department, and the Office of the
Nassau County District Attorney alleging that defendants
violated plaintiff's rights under the First, Fourth, and
Fourteenth Amendments of the United States Constitution.
Specifically, Jackson claims that his constitutional rights
were violated during his pretrial proceedings when police
officers allegedly withheld exculpatory evidence, made
perjurous statements, and falsely verified felony complaints
against plaintiff when they had no personalknowledge of the
underlying facts. Jackson further contends that the County
of Nassau has a policy of committing these constitutional
violations. Jackson also alleges that the County of Nassau

I. FACTS
The Court has taken the facts set forth below from the
parties' depositions, affidavits, and exhibits, and from the
defendants' respective Rule 56.1 statements of facts. 1 Upon
consideration of a motion for summary judgment, the Court
shall construe the facts in the light most favorable to the
non-moving party-here, the plaintiff. See Capobianco v. City
of New York, 422 F.3d 47, 50 n. 1 (2d Cir.2001). Unless
otherwise noted, where a party's 56.1 statement or deposition
is cited, that fact is undisputed or the opposing party has
pointed to no evidence in the record to contradict it. 2
1

The Court notes that plaintiff failed to file and
serve a response to defendant's Local Rule 56.1
Statement of Facts in violation of Local Civil
Rule 56.1. Generally, a “plaintiff['s] failure to
respond or contest the facts set forth by the
defendants in their Rule 56.1 statement as being
undisputed constitutes an admission of those facts,
and those facts are accepted as being undisputed.”
Jessamy v. City of New Rochelle, 292 F.Supp.2d
498, 504 (S.D.N.Y.2003) (quoting NAS Elecs.,
Inc. v. Transtech Elecs. PTE Ltd., 262 F.Supp.2d
134, 139 (S.D.N.Y.2003)). However, “[a] district
court has broad discretion to determine whether
to overlook a party's failure to comply with local
court rules.” Holtz v. Rockefeller & Co., 258 F.3d
62, 73 (2d Cir.2001) (citations omitted); see also
Gilani v. GNOC Corp., No. 04 Civ. 2935(ILG),
2006 WL 1120602, at *2 (E.D.N.Y. Apr. 26,
2006) (exercising court's discretion to overlook the
parties' failure to submit statements pursuant to
Local Civil Rule 56.1). In plaintiff's opposition
papers, he specifically identified those paragraphs
of defendants' Rule 56.1 statement with which he
agreed that there were no material disputed issues
of fact. The Court, in its discretion, thus relies on
those paragraphs as equivalent to plaintiff's Rule
56 .1 statement of facts for the purposes of this

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opinion. In the exercise of its broad discretion and
given plaintiff's pro se status, the Court will also
only deem admitted those facts in defendant's Rule
56.1 statement that are supported by admissible
evidence and not controverted by other admissible
evidence in the record. See Jessamy, 292 F.Supp.2d
at 504-05.
2

Because plaintiff is pro se, the Court has
independently reviewed plaintiff's deposition
testimony. Plaintiff's deposition contains no
additional evidence other than plaintiff's
speculation and conclusory allegations.

A. The Underlying Prosecution
On November 22, 2005, plaintiff Erwin Jackson was arrested
by Nassau County police officers for attempted robbery of
the Bank of America located in Baldwin, New York, on
November 21, 2005. (Defs.' 56.1 Statement ¶ 4.) Plaintiff
was brought to the Bellmore police station, where he
was questioned about the November 21, 2005 robbery.
(Deposition of Irwin Jackson, Defs.' Ex. E (hereinafter “Pl.'s
Dep.”) at 32-33.) At the station, Jackson was also questioned
about other bank robberies. (Id. at 34-35.) Plaintiff was
arrested and arraigned on November 23, 2005. He was
charged for the November 21 robbery and four additional
robberies that had occurred in Nassau County on November
13, 2005, October 1, 2005, September 2, 2005, and July 23,
2005. (Id. at 40-41; Defs.' 56.1 Statement ¶ 5.) Plaintiff was
indicted by a grand jury on thirteen counts on December
19, 2005. (Pl.'s Dep. at 44-45.) In June 2006, a pretrial
suppression hearing was held, at which Police Officer Joseph
Hughes testified. (Id. at 45-46.) Plaintiff proceeded to trial
on the charges and, on February 6, 2007, was found guilty
on nine counts of Robbery in the First Degree (New York
Penal Law 160.15) and one count of Conspiracy in the Fourth
Degree (New York Penal Law 105.10). (Id. at 53-54.) On July
30, 2008, Jackson was sentenced to fifteen years for each of
the nine counts of Robbery in the First Degree, plus one year
and four months for Conspiracy in the Fourth Degree. (Defs.'
56.1 ¶ 8.) Jackson's minimum aggregate sentence was set at
twenty-five years, eight months and sixteen days. (Id. ¶ 9.)

B. Officer Hughes
*2 By letter dated September 17, 2006, while a pretrial
detainee, Jackson filed three criminal complaints against

Police Officer Joseph Hughes with the Nassau County
District Attorney's Criminal Complaint Unit. (Id. ¶ 10.)
The complaints were based on Officer Hughes's allegedly
inconsistent testimony at a pretrial suppression hearing.
Jackson alleges that while testifying before the Grand Jury
in December 2005, Officer Hughes stated that he observed
five black males fleeing a four-door Buick wearing face
masks. During a subsequent pretrial hearing on July 10, 2006,
plaintiff cross-examined Officer Hughes. At that hearing,
Officer Hughes stated that only some of the males he observed
were wearing face masks. The testimony at the July 10 pretrial
hearing was as follows:
Q: This individual jumps out of the car. This is the
individual that you pursued after?
A: Correct. * * *
Q: Did he have mask on? A: No mask.
Q: No mask. You testified in the grand jury that all five of
the occupants of that car that fled had masks on?
A: I was incorrect about that. I stated that before.
Q: That information wasn't true?
A: It was incorrect. * * *
Q: You testified they all had masks on. Now, you're saying,
you take the mask off oneA: I believe in that statement. I was describing all the
occupants. I said, they all had masks on. I was incorrect. I
should have said, some had masks on.
(Id. ¶ 12 (citing Ex. AB at 485-86).)
Jackson also claims Officer Hughes made a “punishable false
written statement” and committed the crime of “offering a
false instrument for filing” by verifying and signing five
felony complaints against plaintiff, although Officer Hughes
had no personal knowledge of the information contained in
those complaints and relied on information provided by other
officers. (Id. ¶¶ 13-14.) According to Jackson, during the
pretrial hearing and trial of his co-defendant Paul Henry,
Officer Hughes testified that it was police procedure for
officers to verify and swear to felony complaints even though
they lacked knowledge of the underlying facts or crimes
alleged therein. (Pl.'s Dep. at 61.) Jackson also alleges that
Hughes testified to this at Jackson's own trial on crossexamination. (Id. at 61-62.)

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On September 21, 2006, Assistant District Attorney (“ADA”)
Thurer transferred plaintiff's perjury complaint against
Officer Hughes to ADA Barbara Kornblau, Chief of the
Public Corruption Bureau. (Id. ¶ 15.) ADA Kornblau
reviewed plaintiff's complaint against Officer Hughes.
Because plaintiff's case was still pending and “the issues
alleged by plaintiff all pertained to credibility,” (Defs.'
Ex. K ¶ 6), ADA Kornblau notified Daniel Looney, the
ADA prosecuting plaintiff, and plaintiff's attorney, Jeffrey
Groder, of plaintiff's claims. The District Attorney's Office
later informed Jackson that it also forwarded the case to
the Internal Affairs Bureau of the Nassau County Police
Department for administrative action at their discretion.
(Pl.'s Dep. at 56; Defs.' 56.1 ¶ 16.) After receiving
plaintiff's complaint from the District Attorney's Office, the
Nassau County Police Department's Internal Affairs Bureau
“determined that plaintiff's complaint against Officer Hughes
for perjury was unfounded, since plaintiff had been convicted
in a jury trial on February 6, 2007.” (Defs.' 56.1 ¶ 18.)

C. Detective Comiskey
*3 Jackson also filed criminal complaints against Detective
Joseph Comiskey with the Nassau County District Court.
(Pl.'s Dep. at 58-59.) According to Jackson, Detective
Comiskey committed “official misconduct” and perjury
for allegedly failing to provide plaintiff with “exculpatory
material” in July 2006 at a pretrial hearing, and for advising
the court that he had turned over all of his notes when,
according to Jackson, he had not done so. (Defs.' 56.1
¶ 19.) ADA Steven L. Schwartz, Chief of the Nassau
County District Attorney's District Court Bureau, investigated
these two complaints against Detective Comiskey, and
found the claims in them unfounded. (Id. ¶ 20.) Plaintiff
was subsequently informed that the District Attorney's
Office declined to prosecute these complaints. (Id.) These
complaints were also reviewed by ADA Kornblau, who
determined that Detective Comiskey's actions were not a
crime. (Id. ¶ 22.) Subsequently, as she had done with
the complaint against Officer Hughes, she forwarded the
complaints to the Nassau County Police Department Internal
Affairs Bureau. (Id. ¶ 22.) ADA Kornblau also sent a letter
to Jeffrey Groder, plaintiff's trial counsel, informing him of
plaintiff's allegations, since they pertained to an incident in
which Groder was involved. (Id.)

D. The Instant Complaint
Jackson alleges eleven causes of action against the
County of Nassau and two of its administrative arms,
the Nassau County District Attorney's Office and the
Nassau County Police Department, arguing that these entities
had unconstitutional policies, practices, and customs that
infringed his constitutional rights. Jackson asserts three
claims specifically against the County of Nassau. First, he
alleges that the County had a policy of failing to discipline its
employees for any alleged perjury or cover-ups with respect
to evidence. (Compl. at 5; Pl.'s Dep. at 93.) Jackson's second
cause of action claims that the County has a policy, practice,
procedure and custom of failing to take steps to terminate
the unconstitutional practices of “its legal subordinates,”
defendants Nassau County Police Department and the Nassau
County District Attorney's Office. (Compl. at 5; Pl.'s Dep. at
93-94.) Jackson's third cause of action alleges that the County
has failed to properly train and supervise its employees
with regard to “the proper constitutional and statutory
requirements in the exercise of their authority.” (Compl. at 5;
Pl.'s Dep. at 94.)
Jackson asserts four claims against the Nassau County
Police Department. The fourth cause of action in Jackson's
complaint alleges that the Nassau County Police Department
has a policy that authorizes subordinates to falsely verify
and file criminal felony complaints without “knowledge of
or knowledge based upon belief” of the underlying facts.
(Compl. at 5; Pl.'s Dep. at 95.) The fifth cause of action
alleges that the Nassau County Police Department failed to
properly train and supervise its employees in the processing
of arrestees. (Compl. at 5-6.) Specifically, Jackson contends
that, due to inadequate training, employees of the Nassau
County Police Department do not realize “that they are not
authorized to swear or fill out a felony complaint that they
have absolutely no knowledge of.” (Pl.'s Dep. at 96.) The sixth
cause of action in Jackson's complaint claims that the Nassau
County Police Department has an illegal practice or custom
that condones and sanctions its employees who commit
perjury, which is demonstrated by the fact that plaintiff, a
pretrial criminal defendant, attempted to file criminal charges
against the defendants' subordinates, but the defendants took
no corrective actions. (Id. at 96-97; Compl. at 6.) Jackson's
seventh cause of action alleges that the Nassau County Police
Department, as a policy maker, has a defective and illegal
policy whereby it does not correct or punish wrongdoings,

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such as those alleged in causes of action numbers four, five,
and six. (Compl. at 6; Pl.'s Dep. at 97-98.)
*4 Jackson asserts his four final claims against the Nassau
County District Attorney's Office. Jackson's eighth cause of
action alleges that the Nassau County District Attorney's
Office has a history and practice of ignoring criminal
defendants' and arrestees' complaints, ignoring evidence of
police misconduct, and shielding police officers and other
assistant district attorneys from prosecution. (Compl. at 6.)
Jackson's ninth cause of action alleges that the Nassau
County District Attorney's Office does not give “any credence
to pretrial criminal defendants who seek to file and give
any credence to pretrial criminal defendants that seek to
commence criminal actions in the court against public
officials.” (Id. at 130.) Specifically, plaintiff contends that
the Nassau County District Attorney's Office declines to
investigate, arrest, and/or prosecute public officials when
illegal conduct is alleged by pretrial or criminal defendants.
(Compl. at 6-7.) Jackson's tenth cause of action alleges
that the Nassau County District Attorney's Office has
failed to punish the illegal practices and wrongdoings of
their employees and the Nassau County Police Department.
(Compl. at 7.) Jackson's eleventh and final cause of action
contends that the Nassau County District Attorney's Office
has a policy and procedure whereby the district court clerk
does not submit or file any claims or complaints against a
public official made by criminal defendants. (Compl. at 7.)

II. PROCEDURAL HISTORY
Jackson filed the complaint in this action on January 17,
2007. The Court granted plaintiff leave to proceed in forma
pauperis on January 31, 2007. Defendants filed an answer
to the complaint on May 23, 2007. On March 14, 2008,
plaintiff filed a motion to amend the complaint. This Court
denied that motion on February 13, 2009. On May 15, 2009,
defendants submitted their motion for summary judgment
and provided pro se plaintiff with the notice required by
Local Civil Rule 56.2. Defendant submitted supplemental
papers to their motion on June 5, 2009. Plaintiff submitted
opposition papers on May 28, 2009. 3 Defendants filed their
reply to plaintiff's opposition on June 5, 2009. Plaintiff also
submitted a motion for sanctions against defendants on June
10, 2009. Defendants submitted their opposition to the motion
for sanctions on June 11, 2009. This matter is fully submitted.

3

Due to delay, it appears that plaintiff's response was
not filed with the Court until June 11, 2009.

III. STANDARD OF REVIEW
The standards for summary judgment are well settled.
Pursuant to Federal Rule of Civil Procedure 56(c), a court
may not grant a motion for summary judgment unless
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c); Globecon Group, LLC v. Hartford Fire
Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). The moving party
bears the burden of showing that he or she is entitled to
summary judgment. See Huminski v. Corsones, 396 F.3d 53,
69 (2d Cir.2005). The court “is not to weigh the evidence
but is instead required to view the evidence in the light
most favorable to the party opposing summary judgment,
to draw all reasonable inferences in favor of that party, and
to eschew credibility assessments.” Amnesty Am. v. Town of
W. Hartford, 361 F.3d 113, 122 (2d Cir.2004); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary
judgment is unwarranted if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party”).
*5 Once the moving party has met its burden, the opposing
party “ ‘must do more than simply show that there is
some metaphysical doubt as to the material facts.... [T]he
nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial.’ “ Caldarola
v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986) (emphasis in original)). As the
Supreme Court stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50
(citations omitted). Indeed, “the mere existence of some
alleged factual dispute between the parties” alone will not
defeat a properly supported motion for summary judgment.
Id. at 247-48 (emphasis in original). Thus, the nonmoving
party may not rest upon mere conclusory allegations or
denials but must set forth “ ‘concrete particulars' “ showing
that a trial is needed. R.G. Group, Inc. v. Horn & Hardart
Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)).
Accordingly, it is insufficient for a party opposing summary

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judgment “ ‘merely to assert a conclusion without supplying
supporting arguments or facts.’ “ BellSouth Telecomms., Inc.
v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting
Research Automation Corp., 585 F.2d at 33).
Where the plaintiff is proceeding pro se, the Court must
“construe [the complaint] broadly, and interpret [it] to raise
the strongest arguments that [it] suggest[s].” Weixel v. Bd. of
Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir.2002)
(alterations in original) (quoting Cruz v. Gomez, 202 F.3d 593,
597 (2d Cir.2000)). Though a pro se litigant's pleadings and
other submissions are afforded wide latitude, a pro se party's
conclusory assertions, completely unsupported by evidence,
are not sufficient to defeat a motion for summary judgment.
Shah v. Kuwait Airways Corp., --- F.Supp.2d ----, No. 08
Civ. 7371(GEL), 2009 WL 2877604, at *2 (S.D.N.Y. Sept. 9,
2009) (“Even a pro se party, however, ‘may not rely simply
on conclusory allegations or speculation to avoid summary
judgment, but instead must offer evidence to show that its
version of the events is not wholly fanciful.’ “ (quoting
Auguste v. N.Y. Presbyterian Med. Ctr., 593 F.Supp.2d 659,
663 (S.D.N.Y.2009))).

IV. DISCUSSION
A. Proper Defendants
Plaintiff alleges specific causes of action against the Nassau
County Police Department and Nassau County District
Attorney's Office as defendants. However, “under 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.” See 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 Hall v. City
of White Plains, 185 F.Supp.2d 293, 303 (S.D.N.Y.2002)
(“Because plaintiff has named the City of White Plains as a
defendant, any claims against the [White Plains Department
of Public Safety] are redundant. WPDPS does not have its
own legal identity, and therefore the claims against it are
dismissed.”); Polite v. Town of Clarkstown, 60 F.Supp.2d
214, 216 (S.D.N.Y.1999) (“[M]unicipal departments in this
State-such as the Clarkstown Police Department-are not
amenable to suit, and no claims can lie directly against
them.”); Wilson v. City of New York, 800 F.Supp. 1098, 1101
(E.D.N.Y.1992) (“The court also dismisses the claims against
the New York City Police Department, which cannot be sued

independently because it is an agency of the City of New
York.” (citations omitted)). Plaintiff's allegations against the
Police Department are more properly raised in claims against
Nassau County, which plaintiff has also brought in his first,
second, and third causes of action. Accordingly, the Nassau
County Police Department is dismissed as a defendant.
*6 For the same reason, plaintiff cannot bring claims against
the Nassau County District Attorney's Office. See Conte v.
County of Nassau, No. 06-CV-4746 (JFB)(ETB), 2008 WL
905879, at *1 n. 2 (E.D .N.Y. Mar. 31, 2008) (dismissing
Section 1983 claims against the Nassau County District
Attorneys Office because the entity is an “ ‘administrative
arm[ ]’ of the same municipal entity-the County ... and thus
lack[s] the capacity to be sued”). Plaintiff's allegations against
the District Attorneys Office are more properly brought
as claims against Nassau County. Plaintiff has brought
substantially the same claims against the District Attorney's
Office as he has brought against the County of Nassau.
Accordingly, the Nassau Count District Attorney's Office is
dismissed as a defendant in this case. 4 Because the plaintiff
is proceeding pro se, the Court, in its discretion, does not
dismiss plaintiff's fourth through eleventh causes of action
in their entirety, but rather construes those claims, which are
largely duplicative of causes of action one through three, as
against the County of Nassau.
4

The Court further notes that it has previously
denied plaintiff's attempt to amend his complaint
to state claims against Lawrence Mulvey, the
Commissioner of the Nassau County Police
Department, and Kathleen Rice, the Nassau County
District Attorney. See Jackson v. County of Nassau,
No. 07-CV-0245 (JFB)(AKT), 2009 WL 393640
(E.D.N.Y. Feb. 13, 2009).

B. Section 1983 Liability
As stated supra, Jackson has brought his claims pursuant
to Section 1983. Section 1983 “is not itself a source of
substantive rights, but a method for vindicating federal rights
elsewhere conferred by those parts of the United States
Constitution and federal statutes that it describes.” Baker v.
McCollan, 443 U.S. 137, 145 n. 3 (1979). 5 For claims under
Section 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

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the United States.” Snider v. Dylag, 188 F.3d 51, 53 (2d
Cir.1999) (citation omitted). Here, the parties do not dispute
that defendants were acting under color of state law. The
question presented, therefore, is whether defendants' conduct
deprived Jackson of the rights he asserts.
5

Specifically, Section 1983 provides as follows:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other
person within the jurisdiction thereof to
the deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in an
action at law....
42 U.S.C. § 1983.

Although pro se plaintiff alleges eleven separate causes of
action against the County of Nassau and its administrative
arms, at core, the claims alleged by plaintiff in his complaint
are as follows: (1) the County of Nassau has a policy or
practice of permitting its employees (or employees of its
administrative arms) to commit perjury and a policy or
practice of failing to discipline its employees who do commit
perjury; (2) the County of Nassau has a policy or practice
of permitting its police officers to falsely verify criminal
complaints; and (3) the County of Nassau has a policy of
not investigating, responding to, or prosecuting complaints or
cross-criminal complaints of pretrial detainees and criminal
defendants that allege crimes and misconduct against police
officers and assistant district attorneys. (Plaintiff's Opposition
(hereinafter “Opp.”) at 14.)
Defendants argue that they are entitled to summary judgment
on the grounds that Jackson has failed to provide any
evidence that would raise a genuine issue of fact as to
municipal liability for any of these claims. As set forth below,
the Court agrees. First, plaintiff has failed to provide any
evidence that there was an underlying constitutional violation
with respect to his arrest and conviction, which would be
a necessary element of any municipal liability claim. In
fact, under well-settled Supreme Court and Second Circuit
precedent, plaintiff's valid conviction precludes him from
litigating any of his claims in the instant case because success
on such claims (that is, demonstrating his constitutional
rights were violated in connection with the investigation
and prosecution of his case) would necessarily implicate the
unconstitutionality of his conviction. Second, plaintiff has

provided absolutely no evidence of an unconstitutional policy
or custom of the County of Nassau and, thus, his municipal
liability claims against the County cannot survive summary
judgment.

(1) Plaintiff Cannot Demonstrate
Violation of His Constitutional Rights
*7 To bring a successful Section 1983 claim, plaintiff
must first demonstrate that he was injured as a result
of a constitutional violation. In the instant case, plaintiff
cannot do so. First, Supreme Court precedent prevents a
prisoner, like Jackson, from bringing a Section 1983 claim
where success on the claim necessarily would implicate the
unconstitutionality of the prisoner's conviction or sentence.
Second, even assuming this rule did not apply, plaintiff has
presented no evidence of any constitutional violations relating
to his conviction.

a. Heck v. Humphrey
As a threshold matter, although not explicitly raised by
defendants, plaintiff's claims fail as a matter of law, by virtue
of his conviction. Specifically, the Supreme Court's decision
in Heck v. Humphrey, 512 U.S. 477 (1994), entitles defendants
to a decision in their favor as a matter of law with respect to
these claims.

i. The Heck Rule
In Heck v. Humphrey, the Supreme Court “confronted the
question of whether, given the overlap between § 1983 and
the federal habeas corpus statute, a prisoner seeking civil
damages may proceed with a § 1983 claim where success on
the claim necessarily would implicate the unconstitutionality
of the prisoner's conviction or sentence.” Amaker v. Weiner,
179 F.3d 48, 51 (2d Cir.1999) (citing Heck, 512 U.S. at
480-90). The Supreme Court in that case explained:

We hold 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

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§ 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, 28 U.S.C. § 2254.
A claim for damages bearing that
relationship to a conviction or sentence
that has not been so invalidated is
not cognizable under § 1983. Thus,
when a state prisoner seeks damages
in a § 1983 suit, the district court
must consider whether a judgment in
favor of the 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.

512 U.S. at 486-87 (footnote omitted) (emphasis in original);
see also Wilkinson v. Dotson, 544 U.S. 74, 81 (2005)
(“Heck specifies that a prisoner cannot use § 1983 to
obtain damages where success would necessarily imply the
unlawfulness of a (not previously invalidated) conviction or
sentence.” (emphasis in original)).
Thus, pursuant to Heck, courts routinely dismiss claims
brought under Section 1983 when such claims bear on the
validity of an underlying conviction or sentence. See, e.g.,
Guerrero v. Gates, 442 F.3d 697, 703-04 (9th Cir.2006)
(holding that Heck bars plaintiff's § 1983 claims of wrongful
arrest, malicious prosecution, and conspiracy); Amaker, 179
F.3d at 51-52 (holding that Heck applies to Section 1983
conspiracy); Perez v. Cuomo, No. 09 Civ. 1109(SLT), 2009
WL 1046137, at *7 (E.D.N.Y. Apr. 17, 2009) (“A § 1983
claim for the violation of the due process right to a fair
trial is, in essence, a claim for damages attributable to
an unconstitutional conviction.... Since plaintiff's conviction
remains valid, plaintiff's claim for violation of his right to
a fair trial is not cognizable under § 1983, and must be
dismissed as to all defendants[.]”) (internal quotation marks
and citations omitted); Younger v. City of N.Y., 480 F.Supp.2d
723, 730 (S.D.N.Y.2007) (holding that plaintiff's claims for
false arrest/imprisonment and malicious prosecution were
barred by his plea of guilty pursuant to Heck); cf. Jovanovic

v. City of N.Y., No. 04 Civ. 8437, 2006 WL 2411541, at * 12
(S.D.N.Y. Aug. 17, 2006) (applying Heck to a Section 1983
claim for denial of the right to a fair trial in the context of a
statute of limitations issue).

ii. Application
*8 Here, as stated supra, Jackson was convicted after a
trial in state court of nine counts of Robbery in the First
Degree and one count of Conspiracy in the Fourth Degree on
July 30, 2008. It is apparent that Jackson is still incarcerated
for this conviction and, to date, has been unsuccessful in
challenging his conviction or has not even attempted to
do so. Under these circumstances, the Supreme Court's
holding in Heck precludes plaintiff from bringing claims
in this Court under Section 1983 for municipal liability,
because a plaintiff bringing such claims must demonstrate a
constitutional violation in connection with his conviction, and
a successful result in this case on any one of plaintiff's claims
would bear on the validity of that underlying conviction.
Indeed, Heck' s application to the instant matter is
straightforward. Plaintiff's complaint claims that he was
“subsequently indicted based upon officer Hughes['s]
‘inaccurate’ testimony.” (Compl.¶ 9.) Plaintiff also contends
that during his pretrial hearings there was extensive “late
disclosure of [exculpatory] material.” (Id. ¶ 11.) Although it is
true that not all claims brought under Section 1983 necessarily
implicate the validity of the underlying conviction, in this
case, plaintiff's assertions of perjury, withheld evidence, and
falsely sworn documents during his trial by police officers
do necessarily implicate the validity of his conviction and
are thus barred by the Heck rule. 6 See, e.g., McCloud v.
Jackson, 4 F. App'x 7, 10 (2d Cir.2001) (“[Plaintiff] could not
assert [municipal liability] claims under § 1983 against the
county defendants for holding him in jail because any claim
for money damages which, as here, necessarily imputes the
invalidity of a conviction, is barred under Heck v. Humphrey,
512 U.S. 477, 484, 486-87 (1994), until such time as the
conviction is vacated or otherwise invalidated.”); Channer
v. Mitchell, 43 F.3d 786, 787-88 (2d Cir.1994) (per curiam)
(affirming Heck-based dismissal of claim that police officers
committed perjury and coerced witnesses to identify plaintiff
wrongfully); Williams v. Schario, 93 F.3d 527, 529 (8th
Cir.1996) (“[A] judgment in Williams's favor on his damages
claim that defendants engaged in malicious prosecution and
presented perjured testimony would ‘necessarily imply the
invalidity of his conviction or sentence’ “ (quoting Heck,

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2010 WL 335581

512 U.S. at 487)); Smithart v. Towery, 79 F.3d 951, 952-53
(9th Cir.1996) (per curiam) (affirming Heck-based dismissal
of § 1983 claim of conspiracy to “bring unfounded criminal
charges” against plaintiff); Jasper v. Fourth Court of Appeals,
No. 08 Civ. 7472(LAP), 2009 WL 1383529, at *1 (S.D.N.Y.
May 18, 2009) (“The Court liberally construes this complaint
as asserting that plaintiff was denied his constitutional right
to a fair trial. [However, s]ince plaintiff's conviction remains
valid, plaintiff's fair trial claim is not cognizable under § 1983,
and it must be dismissed as to all defendants[.]”); Perez, 2009
WL 1046137, at *7 (“A § 1983 claim for the violation of
the due process right to a fair trial is, in essence, a claim
for damages attributable to an unconstitutional conviction....
Since plaintiff's conviction remains valid, plaintiff's claim for
violation of his right to a fair trial is not cognizable under
§ 1983, and must be dismissed as to all defendants[ .]”)
(internal quotation marks and citations omitted); Fernandez
v.. Holzbach, No. 3:04 Civ. 1664(RNC), 2007 WL 1467182,
at *1 (D.Conn. May 15, 2007) (holding that plaintiff's
allegations that his convictions were based on perjury and
fabricated evidence pursuant to a conspiracy to violate his
federal rights “necessarily impl[ied] that he was wrongly
convicted” and could not be litigated “until he show[ed] that
the convictions have been invalidated”); Duamutef v. Morris,
956 F.Supp. 1112, 1115-16 (S.D.N.Y.1997) (dismissing §
1983 claims for, inter alia, malicious prosecution, false arrest,
and perjury during trial due to a failure to state a claim under
Heck because of the valid underlying criminal conviction).
Thus, in order to bring a cognizable Section 1983 claim in this
Court for the harms alleged, plaintiff must first establish the
invalidity of his state court conviction.
6

With respect to plaintiff's claim that the County
of Nassau has a policy of declining to investigate
criminal complaints filed by pretrial detainees and
criminal defendants, as discussed infra, plaintiff
has failed to present any evidence that his
claim was not investigated, whereas the County
has presented substantial evidence demonstrating
that plaintiff's claim was, in fact, investigated.
Moreover, the prosecution of plaintiff's criminal
complaints against Officer Hughes and Detective
Comiskey would have implicated the validity of
his underlying conviction, in contravention of the
Heck rule. Accordingly, Heck can be construed to
preclude all of plaintiff's Section 1983 claims.

*9 The fact that plaintiff is seeking to assert municipal
liability claims against the County of Nassau, rather than
against individual defendants, does not vitiate the application

of the Heck rule to plaintiff's claims. To prevail against the
County of Nassau in his Section 1983 action under any of
these theories, a plaintiff must plead and prove: (1) there
was an official municipal policy or custom; and (2) that
policy or custom caused him to be subjected to a denial of
a constitutional right. See Monell v. Dep't Soc. Servs., 436
U.S. 658, 690-91 (1978). There must be a “direct causal link”
between the alleged municipal action and the deprivation
of the plaintiff's constitutional rights. City of Canton, Ohio
v. Harris, 489 U.S. 378, 385 (1989); Vippolis v. Vill. of
Haverstraw, 768 F.2d 40, 44 (2d Cir.1985); see also Lynch
v. Suffolk County Police Dep't, No. 07-3684-cv, 2009 WL
3287565, at *2 (2d Cir. Oct. 14, 2009) (“In order to prevail on
a claim against a municipality under Monell, a plaintiff must
allege, among other things, that a ‘municipal policy of some
nature caused a constitutional tort.’ “ (citations omitted)).
In the instant case, because the Court finds as a matter of
law on summary judgment that Heck v. Humphrey prevents a
finding that a constitutional violation was committed against
plaintiff by any of the defendants, see supra, no Monell
claim can lie against the County of Nassau pursuant to §
1983. 7 See, e.g., Lynch, 2009 WL 3287565, at *2 (“Insofar as
plaintiff alleges that a municipal policy caused prosecutorial
misconduct in the trial that led to his felony convictions,
plaintiff's claim seeks to ‘recover damages for [an] allegedly
unconstitutional conviction or imprisonment’ and is barred by
Heck, 51 U.S. at 486.” (alteration in original)); Segal v. City
of N.Y., 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 Vippolis, 768
F.2d at 44 (“A plaintiff who seeks to hold a municipality
liable in damages under section 1983 must prove that the
municipality was, in the language of the statute, the ‘person
who ... subjected, or cause[d][him] to be subjected,’ to the
deprivation of his constitutional rights.” (citing 42 U.S.C. §
1983)); see also Ewolski v. City of Brunswick, 287 F.3d 492,
516 (6th Cir.2002) (“Having concluded that the Appellant has
not shown a genuine issue of material fact as to any of the
asserted constitutional claims, we therefore conclude that the
district court correctly dismissed the Appellant's municipal
liability claims.”).
7

In any event, summary judgment would also
be warranted in favor of the County of Nassau
because, as discussed infra, plaintiff has failed
to proffer any evidence of a policy, custom, or

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8

Jackson v. County of Nassau, Not Reported in F.Supp.2d (2010)
2010 WL 335581

failure to train, that led to any alleged constitutional
violation.
In sum, even accepting plaintiff's allegations as true and
drawing all reasonable inferences in plaintiff's favor, the
Court finds that plaintiff cannot successfully bring a claim
because the Heck rule, as a matter of law, prevents plaintiff
from demonstrating a violation of his constitutional rights,
which is a necessary predicate to any municipal liability claim
pursuant to Section 1983.

b. No Evidence of Violation of
Plaintiff's Constitutional Rights
*10 Moreover, even assuming that the validity of plaintiff's
underlying conviction was not implicated by his claim
that the County of Nassau had a policy of ignoring
criminal complaints filed by pretrial detainees and criminal
defendants, he has presented no evidence to support his
contention that the County did not investigate his claims.
Thus, because there is no evidence from which a rational jury
could find a violation of his constitutional rights, there is no
predicate for his municipal liability claim.
The only forms of evidence offered by plaintiff on this
issue are his bald assertions and the fact that the County
did not prosecute Officer Hughes or Detective Comiskey
for their alleged misconduct in relation to plaintiff's trial.
Plaintiff's exhibits consist merely of copies of the letters and
complaints that he filed with Nassau County entities. Plaintiff
presents no evidence to contradict the evidence put forth
by defendants, which demonstrates that plaintiff's complaints
were investigated. In two affidavits submitted by ADA
Kornblau, former Bureau Chief of the District Attorney's
Public Corruption Bureau, she asserts that she personally
investigated plaintiff's complaints against the officers. (See
Defs.' Exs. K, X.) According to ADA Kornblau's affidavit,
upon investigating Jackson's complaints, “[it] was clear
from the minutes that [Jackson's] criminal attorney raised
the issue of the failure to turn over Rosario material to
the trial court, which is the proper venue for such an
allegation.” (Defs.' Ex. K ¶ 4.) Subsequently, ADA Kornblau
determined that the remainder of plaintiff's claims were
unfounded, and declined to prosecute the matter. (See id. ¶
4 (“Subsequent to reviewing Jackson's complaint and after
determining that the [complaint] did not allege conduct which
constituted a crime, I referred the matter to the Internal
Affairs Bureau of the Nassau County Police Department ....”);
id. ¶ 6 (“In view of the fact that the trial of this case

was still pending, and the issues alleged by [Jackson]
all pertained to credibility, I notified Daniel Looney, the
Assistant District Attorney assigned to Jackson's prosecution,
as well as defense counsel, Jeffrey Groder, of Jackson's
claims. I also forwarded Jackson's complaint to the Internal
Affairs Bureau of the Nassau County Police Department for
whatever administrative action they deemed necessary.”).)
In a separate affidavit, ADA Steven L. Schwartz, Bureau
Chief of the District Court Trial Bureau in the Nassau
County District Attorney's Office, states that he personally
investigated plaintiff's proposed accusatory instruments and
found them to be unfounded; accordingly, they were not
prosecuted. (Defs.' Ex. Q ¶ 9.) 8
8

The Court further notes that in the absence of
any evidence that the Nassau County District
Attorney's Office failed to investigate Jackson's
complaints, the decision not to prosecute those
complaints is protected by prosecutorial immunity.
See, e.g., Fields v. Soloff, 920 F.2d 1114, 1119
(2d Cir.1990) (“[U]nless a prosecutor proceeds
in the clear absence of all jurisdiction, absolute
immunity exists for those prosecutorial activities
intimately associated with the judicial phase of
the criminal process.... This protection extends to
the decision to prosecute as well as the decision
not to prosecute.” (internal quotations and citations
omitted)).

Here, as in Staley v. Grady, 371 F.Supp.2d 411
(S.D.N.Y.2005), “[s]imply because defendants disagreed with
plaintiff as to the merits of the proposed [complaint] and
chose not to prosecute the same, does not give rise to an
equal protection violation.” Id. at 417. Here, too, the Nassau
County District Attorney's Office received Jackson's criminal
complaints, reviewed and investigated them, and declined to
prosecute them based upon the conclusion that the complaints
were without merit. (See Defs.' Exs. K, Q.)
*11 In short, due to plaintiff's inability to set forth any
evidence from which a rational jury could find a deprivation
of his constitutional rights, plaintiff's Monell claims against
the County of Nassau cannot survive summary judgment.

(2) Plaintiff Has Set Forth No
Evidence to Support a Monell Claim

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2010 WL 335581

Even assuming arguendo that plaintiff had put forth evidence
to create a genuine issue of fact on whether his constitutional
rights were violated, his municipal liability claims still cannot
survive summary judgment because there is no evidence of a
policy, practice or custom to support a finding by a rational
jury of municipal liability under Monell.

i. Applicable Standard
Municipalities cannot be held vicariously liable for the actions
of an employee under § 1983. Monell, 463 U.S. at 691
(“[A] municipality cannot be held liable solely because
it employs a tortfeasor-or, in other words, a muncipality
cannot be held liable under § 1983 on a respondeat superior
theory.”). Thus, “[a] municipality will not be held liable
under Section 1983 unless the plaintiff can demonstrate
that the allegedly unconstitutional action of an individual
law enforcement official was taken pursuant to a policy
or custom ‘officially adopted and promulgated by that
[municipality's] officers.’ “ Abreu v. City of N.Y., No. 04CV-1721 (JBW), 2006 U.S. Dist. LEXIS 6505, at *11
(E.D.N.Y. Feb. 22, 2006) (quoting Monell, 436 U.S. at
690) (alteration in original). “ ‘[M]unicipal liability under
§ 1983 attaches where-and only where-a deliberate choice
to follow a course of action is made from among various
alternatives' by city policymakers .” City of Canton, 489
U.S. at 389 (quoting Pembaur v. Cincinnati, 475 U.S. 469,
483-84 (1986)). Thus, an individual's misconduct will not
result in respondeat superior liability for his supervisors
absent specific allegations that he acted pursuant to an official
policy or custom. Ricciuti v. N.Y.C. Transit A uth ., 941 F.2d
119, 123 (2d Cir.1991). However, “[a] court may draw the
inference of the existence of a policy or custom ‘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.’ “ Caidor
v. M & T Bank, No. 05-CV-297 (FSJ), 2006 U.S. Dist. LEXIS
22980, at *35-36 (N.D.N.Y. Mar. 27, 2006) (quoting GrifinNolan v. Providence Wash. Ins. Co., No. 04-CV-1453 (FJS),
2005 U.S. Dist. LEXIS 12902, at *10 (N.D.N.Y. June 20,
2005) (quotation omitted)). But, “ ‘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.’ “ Zahra v. Town of
Southold, 48 F.3d 674, 685 (2d Cir.1995) (quoting Dwares v.
City of N.Y., 985 F.2d 94, 100 (2d Cir.1993)).

ii. Application
Even if plaintiff could prove that his constitutional rights
were violated, whether at trial or by the subsequent failure to
prosecute his criminal complaint for the actions by municipal
actors at his trial, this is not sufficient to demonstrate a
policy or custom by the County of Nassau. “[A] single
incident alleged in a complaint, especially if it involved only
actors below the policy-making level, does not suffice to
show a municipal policy.” Ricciuti, 941 F.2d at 123; see
also Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)
(“Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, unless proof
of the incident includes proof that it was caused by an
existing, unconstitutional municipal policy, which policy can
be attributed to a municipal policymaker.”); McAllister v.
N.Y.C. Police Dep't, 49 F.Supp.2d 688, 706 (S.D.N.Y.1999)
(same); Palmer v. City of Yonkers, 22 F.Supp.2d 283, 290
(S.D.N.Y.1998) (“[T]he court will not infer the existence of
a municipal policy from a single incident.”). As discussed
supra, “ ‘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.’ “ Zahra, 48 F.3d at 685 (quoting Dwares, 985 F.2d
at 100). 9
9

Plaintiff contends that the persons who violated
his constitutional rights were policymakers. (Opp.
at 14 (“All of plaintiff's claims were made
against the ‘policy makers' and not against
employees below the policy making level.”).) First,
as discussed supra, plaintiff's claims regarding
alleged perjury, withholding of evidence, or
falsely verified complaints relating to his trial are
barred by Heck. In addition, however, plaintiff
presents no evidence in support of this argument.
Moreover, for purposes of plaintiff's causes of
action regarding the failure to investigate his
criminal complaints against those persons, plaintiff
would need to allege that the persons who
allegedly failed to investigate his accusations were
policymakers. Plaintiff does not do so. Instead,
he acknowledges that the policy maker is District
Attorney Kathleen Rice, and the individuals who
submitted the defendants' supporting affidavitsthose who investigated plaintiff's allegations-are
subordinates to the policy maker. (Opp. at 15.)

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Jackson v. County of Nassau, Not Reported in F.Supp.2d (2010)
2010 WL 335581

For the reasons contained in our earlier opinion,
this Court declines to add District Attorney
Rice as a defendant in this action. See Jackson,
2009 WL 393640, at *3-5. In light of Jackson's
repeated argument that the actions of the Nassau
County District Attorney's Office's and Nassau
County Police Department's actions were part
of a policy, procedure, or custom, the Court
interprets his complaint and opposition papers to
argue municipal liability based only on a theory
of municipal policy, procedure, or custom, and
not on a theory of unconstitutional action by a
policymaker.
*12 Plaintiff's complaint, statements at his deposition,
and opposition papers to defendants' motion for summary
judgment contain vague allegations regarding the existence
of a policy or procedure by the County of Nassau of
refusing to investigate criminal complaints of pretrial
detainees and criminal defendants. (E.g., Opp. at 5-6
(“Plaintiff also stated that he never received any response
or letters of acknowledgment from either office though
he wrote numerous letters inquiring about the status of
his complaints and criminal charges.”); Opp. at 6 (“The
complaints were never investigated and plaintiff never
received any response.”); Opp. at 7 (“During the deposition
plaintiff continuously testified to the fact that no one
ever investigated nor responded to his complaints and
grievances.”).) These conclusory allegations as to the
existence of a policy or custom are insufficient to withstand
summary judgment. See Bishop v. Toys “R” Us-NY, LLC,
No. 04 Civ. 9403(PKC), 2009 WL 440434, at *4 (S.D.N.Y.
Feb. 19, 2009) (“[P]roceeding pro se does not otherwise
releive a litigant from the usual requirements of summary
judgment, and a pro se party's ‘bald assertion,’ completely
unsupported by evidence, is not sufficient to overcome a
motion for summary judgment.” (quoting Carey v. Crescenzi,
923 F.2d 18, 21 (2d Cir.1995)). Indeed, mere “conclusory
statements, conjecture, or speculation by the party resisting
the motion will not defeat summary judgment.” Id . (citing
Matsushita, 475 U.S. 574, 587 (1986)); Order, McCrary v.
County of Nassau, No. 06 CV 4982(SJF)(ARL) (E.D.N.Y.
Sept. 22, 2008) (“Magistrate Judge Lindsay properly found
that [p]laintiff had proffered no evidence to support his
assertion that a custom, policy and/or practice, which
precludes the consideration of criminal charges brought
by an accused against police officers and assistant district
attorneys, existed” when plaintiff merely asserted that a police
officer was “aware of alleged police misconduct regarding
Plaintiff's apprehension, [the] affidavits in support of County

Defendants' summary judgment motion were not sufficiently
detailed, and that there was no record of any investigation
having been conducted by [County Defendants] in regards to
the [complaints]”). Plaintiff has presented no actual evidence
of a policy or custom whereby the County would decline
to review the criminal complaints of pretrial detainees or
criminal defendants.
The County of Nassau, however, has put forward extensive
evidence regarding the policies that it has in place to
review criminal complaints filed by all citizens. In two
separate affidavits, ADA Kornblau affirms that the County
does investigate criminal complaints against police officers
and ADAs-including those made by pretrial and criminal
defendants: “[M]any of the [District Attorney's Public
Corruptions Bureau's] cases are referred from members of
the public, including direct complaints of police misconduct
that the Bureau receives from defendants and/or their
attorneys.” (Defs.' Ex. X. ¶ 5.) Similarly, “[t]o facilitate
the investigation into complaints by incarcerated individuals
including pretrial detainees, the Public Corruption Bureau
maintains a hotline in the Nassau County Correctional Center
for the purpose of allowing inmates to file complaints
directly with the Public Corruption Bureau, without having
to have their complaints reviewed first by any other entity,
agency, or person.” (Id.) Moreover, ADA Kornblau's affidavit
states that “[e]ach criminal complaint is afforded individual
attention and investigation ... [and if] after investigation,
it is determined that a complaint is supported by credible
evidence, the Nassau County District Attorney's Public
Corruption Bureau will recommend prosecution, after which
those cases will be prosecuted in criminal court.” (Id. ¶¶ 6-7.).
*13 The County of Nassau has also submitted evidence that
the system utilized by the Nassau County District Attorney's
Office for examining criminal complaints filed by private
citizens does not differentiate between complaints based
on the individual who files the complaint. ADA Kornblau
explains that:

Complaints are retrieved from within
the computerized complaint system in
one of three ways: (1) a complainant's
name; (2) a defendant's name; or, (3) a
complaint number. Therefore, there is
no way to retrieve criminal complaints
made specifically by pretrial detainees
from within the computer complaint

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11

Jackson v. County of Nassau, Not Reported in F.Supp.2d (2010)
2010 WL 335581

system since complaints are placed
into the system without complainant
classification (e.g., civilian, pretrial
detainee, police officer, etc.).

(Id. ¶ 8; see also Defs.' 56.1 ¶ 47; Defs.' Ex. W ¶ 11.) In
plaintiff's opposition papers, he stated that he did not dispute
these facts. (Opp. at 12.)
The County of Nassau also submitted an affidavit from
ADA Warren Thurer, the Bureau Chief of the Nassau
County Criminal Complaint Unit. According to ADA
Thurer, “[s]pecifically with respect to allegations of an
assistant district attorney's or police officer's criminal
conduct, such allegations will be individually investigated
and if appropriate, will be forwarded to the Public
Corruption Bureau of the Nassau County District Attorney's
Office.” (Defs.' Ex. W ¶ 10; see also Defs' Ex. Q ¶ 10 (“There
is no policy, practice, or custom within the Nassau County
District Attorney's Office that precludes the consideration,
investigation, and/or acceptance of criminal cross-complaints
brought by an accused against police officers and/or assistant
district attorneys based upon the status of the complainant as
a pretrial detainee”).) An affidavit provided by ADA Steven
L. Schwartz, Bureau Chief of the District Court Trial Bureau
in the Nassau County District Attorney's Office, states that:

All proposed accusatory instruments
are given individual attention and
investigation. There is no distinction
made for the status of the complainant
and pretrial detainees are not treated
any differently than other individuals
proposing accusatory instruments to
be filed. Each proposed accusatory
instrument is investigated for possible
criminalityand, if appropriate, any
case may be forwarded and assigned
to one of the investigative bureaus
within the District Attorney's Office,
or prosecuted within the District
Attorney's District Court Bureau. If the
allegations in a proposed accusatory
instrument are determined to be
unfounded, I send a letter to the
Associate Court Clerk stating that the
District Attorney's Office has declined

to prosecute the matter.... Specifically,
with respect to allegations of
an assistant district attorney's or
police officer's criminal conduct,
such allegations are individually
investigated and if appropriate, are
forwarded to the Nassau County
District Attorney's Office Public
Corruption Bureau.

*14 (Defs.' Ex. Q ¶¶ 7-8.) Plaintiff has presented no evidence
to contradict the information contained in these affidavits or
to suggest otherwise.
Nor has plaintiff presented evidence of a policy or custom
of committing perjury, withholding evidence, or falsely
verifying criminal complaints. Plaintiff has merely asserted
that “he can testify based upon personal knowledge to the
undisputed facts and that he has credible witnesses and
documental evidence to support said factual claims.” (Opp. at
11.) Plaintiff has not alleged with specificity other instances
of perjury, withheld evidence, or falsified complaints, nor
has he presented any other evidence of police officers'
commission of perjury, withholding of evidence, or filing of
falsely sworn complaints. The County of Nassau, by contrast,
has put forward evidence regarding its arrest processing
procedures and arrest records. (See Defs.' Ex. Z.) Nowhere
in the County's arrest policies is false verification of criminal
complaints, withholding of evidence, or perjury authorized.
Furthermore, the “collective knowledge doctrine” or “fellow
officer rule” permits arresting officers to rely upon other
law enforcement officers' knowledge to justify probable
cause to arrest. See Savino v. City of New York, 331 F.3d
63, 74 (2d Cir.2003) ( [F]or the purpose of determining
whether an arresting officer had probable cause to arrest,
‘where law enforcement authorities are cooperating in an
investigation, ... the knowledge of one is presumed shared by
all.’ ”); Stokes v. City of New York, No 05-CV-0007 (JFB)
(MDG), 2007 U.S. Dist. LEXIS 32787, at *17 (E.D.N.Y.
May 3, 2007) (“[U]nder the collective knowledge doctrine,
defendant Buskey is permitted to rely on knowledge obtained
by any other officers during the investigation”); Phelps v. City
of New York, No. 04 CIV. 8570(DLC), 2006 U.S. Dist. LEXIS
42926, at *9-10 (S.D.N.Y. June 29, 2006) (“The rationale
behind the [collective knowledge] doctrine is that in light of
the complexity of modern police work, the arresting officer
cannot always be aware of every aspect of an investigation;
sometimes his authority to arrest a suspect is based on

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facts known only to his superiors or associates. Although
the doctrine is typically used to establish probable cause
for the purpose of admitting evidence at trial, it is equally
applicable here. As the Supreme Court has recognized, police
officers called upon to aid other officers in making an
arrest are entitled to assume that the officers requesting
aid have acted properly.” (internal quotations and citations
omitted)). Accordingly, it is not improper for an officer to
verify a criminal complaint based upon facts learned from
another officer and plaintiff has put forth no evidence of a
policy, practice, or custom of Nassau County police officers
falsifying information in criminal complaints or committing
perjury.
Moreover, the County of Nassau has put forward an affidavit
from a former Nassau County ADA, who investigated and
prosecuted a complaint against a Nassau County Police
Officer in an unrelated matter that alleged that the officer had
committed perjury by falsely testifying before the grand jury.
(Defs.' Ex. Y ¶¶ 2-5.) That police officer was prosecuted and
convicted of perjury in the third degree. (Id. ¶ 8.) In the face
of this undisputed evidence of the County prosecuting perjury
when it is uncovered, plaintiff has not identified any specific
instances of police officers' commission of perjury that were
not prosecuted.
*15 In sum, the undisputed facts demonstrate the following:
(1) plaintiff's conviction prevents him from disputing any
alleged constitutional violations relating to his trial; (2)
defendants did investigate plaintiff's criminal complaints
regarding Officer Hughes's and Detective Comiskey's alleged
behavior; (3) defendants do have in place policies and
procedures whereby criminal complaints filed by private
citizens are investigated-even if those citizens are pretrial
detainees or criminal defendants; and (4) the County of
Nassau does not have a policy or procedure of permitting

End of Document

its employees to commit perjury, to falsely verify criminal
complaints, or to withhold exculpatory evidence at trial. In
short, plaintiff has failed to provide any factual support for
his conclusory allegations that the defendants have engaged
in unconstitutional policies or procedures. Accordingly,
defendant's motion for summary judgment is granted.

C. Motion for Sanctions
The Court has also reviewed plaintiff's motion for sanctions
and, for the reasons stated throughout this opinion, finds
plaintiff's claims to be without merit. Accordingly, plaintiff's
motion for sanctions is also denied. See S.E. C. v. Shainberg,
316 F. App'x 1, 2 (2d Cir.2008).

V. CONCLUSION
For the foregoing reasons, the Court grants defendants'
motion for summary judgment in its entirety. Because the
Court grants defendants' motion for summary judgment in its
entirety, it also denies plaintiff's motion for sanctions against
defendant.
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 (1962).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2010 WL 335581
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13

La Grande v. Town Of Bethlehem Police Dept., Not Reported in F.Supp.2d (2009)
2009 WL 2868231

2009 WL 2868231
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Quentin LA GRANDE, Plaintiff,
v.
TOWN OF BETHLEHEM POLICE
DEPARTMENT, et al., Defendants.
No. 1:08–CV–0738 (LEK/DRH).
|
Sept. 1, 2009.
Attorneys and Law Firms
Quentin La Grande, Albany, NY, pro se.
Nannette R. Kelleher, Bailey, Kelleher Law Firm, Albany,
NY, for Defendants.

DECISION AND ORDER
LAWRENCE E. KAHN, District Judge.
*1 Plaintiff pro se Quentin La Grande (“Plaintiff” or “La
Grande”) commenced the instant action against Defendants
Robert Helligrass 1 , Stephen Kraz 2 and the Town of
Bethlehem Police Department (collectively, “Defendants”)
pursuant to 42 U.S.C. § 1983. Complaint (Dkt. No. 1).
Presently before this Court is Defendants' Motion to dismiss
(Dkt. No. 13) and Plaintiff's Motion for summary judgment
(Dkt. No. 12). For the following reasons, Defendants' Motion
to dismiss is granted and Plaintiff's Motion for summary
judgment is denied.
1

2

Incorrectly named in the Complaint as “R.J.
Helliergrass.” See generally Complaint (Dkt. No.
1).
Incorrectly named in the Complaint as “William
Craz.” See generally Complaint.

I. BACKGROUND
According to Plaintiff, “[o]n April 1, 2008 I was threaten
by Patrol Officer William Craz. Patrol Officer called me a
‘Nigger,’ and also threaten to cause bodily harm to me. On
April 2, 2008 I met with Seargent R.J. Helliergrass and was

interogated, and racial harrassed. On or about April 5, 10, 15,
May 6, 8, 10, 15, and June 6, 2008, I have been followed by
the Bethlehem Police Department.” Compl. at 2. Plaintiff's
jurisdictional statement asserts that the Complaint is being
brought pursuant to 42 U.S.C. § 1983. Id. at 1.
In lieu of filing an answer, on March 11, 2009, Defendants
filed the Motion to dismiss presently before the Court. Mot.
to Dismiss (Dkt. No. 13). Plaintiff also filed a Motion for
summary judgment on February 24, 2009, which is now
before the Court. Mot. for Sum. Judg. (Dkt. No. 12).
II. DISCUSSION
A. Defendants' Motion to Dismiss
a. Standard of Review
In order to withstand a motion to dismiss, “a [pleading] must
contain sufficient factual matter ... to ‘state a claim to relief
that is plausible on its face.’ ” Ashcroft v. Iqbal, ––– U.S.
––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)). A party must plead with such
factual detail so as to sufficiently “ ‘nudge [ ][its] claims ...
across the line from conceivable to plausible.’ ” Iqbal, 129
S.Ct. at 1950–51 (quoting Twombly, 550 U.S. at 570). While
stating a claim does not require the recitation of detailed
factual allegations, it does, however, require facts sufficient to
state a claim to relief that is prima facie plausible. Iqbal, 129
S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). The Court
must accept the allegations in the well-pleaded complaint as
true, Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807,
127 L.Ed.2d 114 (1994), and draw all inferences in favor
of the non-moving party. Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1973); Global Network
Commc'ns, Inc. v. City of New York, 458 F.3d 150, 154 (2d
Cir.2006); King v. Am. Airlines, Inc., 284 F.3d 352, 356 (2d
Cir.2002).
In assessing the legal sufficiency of the Complaint, the
Court is mindful that La Grande is a pro se litigant and
his submissions are subject to “less stringent standards than
formal pleadings drafted by lawyers.” Hughes v. Rowe, 449
U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting
Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d
652 (1972)). The Court must “read the pleadings of a pro se
plaintiff liberally and interpret them ‘to raise the strongest
arguments they suggest.’ ” McPherson v. Coombe, 174 F.3d
276, 280 (2d Cir.1999); see Hemphill v. New York, 380 F.3d

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1

La Grande v. Town Of Bethlehem Police Dept., Not Reported in F.Supp.2d (2009)
2009 WL 2868231

680, 687 (2d Cir.2004) (“ “It is well-established that ‘when a
plaintiff proceeds pro se the court is obligated to construe his
pleadings liberally, particularly when they allege civil rights
violations' ”) (quoting McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir.2004)). However, a plaintiff's pro se status “does
not exempt [him] from compliance with relevant rules of
procedural and substantive law.” Traguth v. Zuck, 710 F.2d
90, 92 (2d Cir.1983).
b. Analysis
*2 Defendants move to dismiss Plaintiff's Complaint in
its entirety pursuant to Rules 12(b)(6) of the Federal Rules
of Civil Procedure. 3 Mot. to Dismiss (Dkt. No. 13) at 1.
Defendants specifically argue that all causes of action against
the Town of Bethlehem Police Department must be dismissed
as it is not a legal entity subject to suit under 42 U.S.C. §
1983 and further that Plaintiff's entire Complaint should be
dismissed for failing to state a cause of action. Id. at 4.
3

Defendants argue, alternatively, that Plaintiff's
Complaint should be dismissed pursuant to 28
U.S.C. § 1915(e) and for failing to adhere to
Rule 8(a) of the Federal Rules of Civil Procedure.
The Court need not address these arguments as it
is dismissing Plaintiff's Complaint in its entirety
pursuant to Federal Rule of Civil Procedure 12(b)
(6).

i. Town of Bethlehem Police Department
The Town of Bethlehem moves to dismiss Plaintiff's
Complaint on the ground that it is not susceptible to suit
under 42 U.S.C. § 1983. While a municipality may be
susceptible to suit under 42 U.S.C. § 1983, a municipal
police department is not. See Walker v. Waterbury Police
Dep't., 08–cv–959 (JG)(AKT), 2009 U.S. Dist. LEXIS 7933,
at *5, 2009 WL 261527 (E.D.N.Y. Feb. 4, 2009). “Under
New York law, departments which are merely administrative
arms of a municipality do not have a legal identity separate
and apart from the municipality and cannot sue or be sued.”
Id. (citing Hall v. City of White Plains, 185 F.Supp.2d 293,
303 (S.D.N.Y.2002)). Accordingly, claims asserted under 42
U.S.C. § 1983 will be dismissed against a municipality's
police department. See Walker, 2009 U.S. Dist. LEXIS 7933,
at *5, 2009 WL 261527 (internal citation omitted); see also
Baker v. Willett, 42 F.Supp.2d 192, 198 (N.D.N.Y.1999).
Here, Plaintiff has sued the Town of Bethlehem Police
Department along with two individual officers of the

department. See generally Compl. Plaintiff's Complaint
asserts that it is brought pursuant to 42 U.S.C. § 1983 and does
not provide any other basis for the claims. Id. at 1. Since the
Bethlehem Police Department cannot be sued pursuant to 42
U.S.C. § 1983, Plaintiff's Complaint is dismissed as against
the Town of Bethlehem Police Department.
Even assuming arguendo that Plaintiff's claims against the
Town of Bethlehem Police Department can be construed as
a claim against the Town of Bethlehem, Plaintiff's Complaint
would still be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6).
In order to state a cause of action for municipal liability
under 42 U.S.C. § 1983, “a plaintiff must allege that the
municipality has adopted a custom or policy which is the
moving force behind the [alleged constitutional violation].”
Zappala v. Albicelli, 980 F.Supp. 635, 649 (N.D.N.Y.1997). A
municipality cannot be held liable on the basis of respondeat
superior and “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.” Campanaro v. City of Rome,
999 F.Supp. 277, 281 (N.D.N.Y.1998); see also Dwares v. City
of New York, 985 F.2d 94, 100 (2d Cir.1993).
Plaintiff's Complaint is devoid of any allegations that the
Town of Bethlehem had a policy or custom of violating
constitutional rights, nor does plaintiff allege or even allude
that the Town was deliberately indifferent to his constitutional
rights. The complete failure to plead such warrants dismissal
under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
as the Complaint fails to state a cause of action for which relief
can be granted under 42 U.S.C. § 1983. See Campanaro, 999
F.Supp. at 281; Dwares, 985 F.2d at 100.
ii. Defendants Kraz and Helligrass
*3 La Grande's Complaint alleges that between April
and June 2008, he was “racially harassed,” “threatened”
and “interrogated” by Defendants Kraz and Helligrass, two
officers of the Bethlehem Police Department. Compl. at 2.
Specifically, La Grande alleges that on multiple occasions
the officers addressed him with a racial epithet and followed
him through town. Id. It is well settled in this Circuit that
“42 U.S.C. § 1983 is not designed to rectify harassment
or verbal abuse.” Murray v. Pataki, No. 9:03–cv–1263,
2007 U.S. Dist. LEXIS 26959, at *22, 2007 WL 956941
(N.D.N.Y. Mar. 29, 2007) (Kahn, J.) (quoting Gill v. Hoadley,
261 F.Supp.2d 113, 129 (N.D.N.Y.2003)) (collecting cases).

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2

La Grande v. Town Of Bethlehem Police Dept., Not Reported in F.Supp.2d (2009)
2009 WL 2868231

“[V]erbal harassment or profanity alone, unaccompanied by
an injury no matter how inappropriate, unprofessional, or
reprehensible it might seem, does not constitute the violation
of any federally protected right and therefore is not actionable
under 42 U.S.C. § 1983.” Murray, 2007 U.S. Dist. LEXIS, at
* 22 (quoting Moncrieffe v. Witbeck, 2000 U.S. Dist. LEXIS,
at *3, 2000 WL 949457 (N.D.N.Y. June 29, 2000)); see
also Zeno v. Cropper, 650 F.Supp. 138, 141 (S.D.N.Y.1986)
(“vile and abusive language ... no matter how abhorrent or
reprehensible cannot form the basis for a § 1983 claim)
(internal citation and quotation omitted). Further, “threats do
not amount to violations of constitutional rights.” Murray,
2007 U.S. Dist. LEXIS, at *23 (quoting Malsh v. Austin, 901
F.Supp. 757, 763 (S.D.N.Y.1995)).
In this case, Plaintiff's claim for verbal harassment in the form
of racial slurs and threats is not actionable under § 1983 and,
therefore, fails to state a claim entitled to relief. Compl. at 2.
B. Plaintiff's Motion for Summary Judgment
Even assuming arguendo that this Court did not grant
Defendants' Motion to dismiss, Plaintiff's Motion for
summary judgment would still be denied. Under the Local
Rules, “all motions ... require a memorandum of law,
supporting affidavit, and proof of service on all the parties.”
N.D.N.Y. L.R. 7.1(a) (emphasis added). “All memoranda of
law shall contain a table of contents and, wherever possible,
parallel citations.” Id. at 7 .1(a)(1). Further “[a]ny motion
for summary judgment shall contain a Statement of Material
Facts ... Failure of the moving party to submit an accurate and
complete Statement of Material Facts shall result in a denial
of the motion.” Id. at 7 .1(a)(3) (emphasis in original).
Here, not only did the Plaintiff fail to submit a memoranda of
law in support of his Motion for summary judgment and an
affidavit but he also failed to submit a Statement of Material
Facts. In fact, in his Motion for summary judgment filed on
February 24, 2009, Plaintiff explicitly stated, “I will provide
this Court with a ‘Law Memorandum’ in support of my
motion; such will contain applicable law, and case law. I will
submit this to the Court on or before March 6, 2009.” Mot.
for Sum. Judg. at 1. To date, this Court has nor received said
memorandum of law. While this Court recognizes Plaintiff's
pro se status, he has failed to comply with all of the Local
Rules. See Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir.1983)
(a plaintiff's pro se status “does not exempt [him] from
compliance with relevant rules of procedural and substantive
law”). Accordingly, Plaintiff's Motion for summary judgment

is denied for failing to comply with the relevant rules of
procedure. See, e.g., N.D.N.Y. L.R. 7.1(a), 7.1(a)(3).
C. Amended Complaint
*4 Plaintiff also moves to amend his Complaint. Response
(Dkt. No. 27). While pro se litigants are generally afforded
wide latitude and an opportunity to amend, a District Court
need not permit an amendment to a Complaint where it
would be futile. See Forman v. Davis, 371 U.S. 178, 182, 83
S.Ct. 227, 9 L.Ed.2d 222 (1962) (holding that although leave
to amend should be freely given where justice so requires,
a district court need not grant leave if amendment would
be futile); Acito v. Imcera Group, Inc., 47 F.3d 47, 55 (2d
Cir.1995).
Here, Plaintiff's Complaint does not state any viable causes of
action under 42 U.S.C. § 1983. Further, Plaintiffs Complaint
does not state which, if any, of his constitutional rights were
violated by Defendants nor does it plead any facts to establish
municipal liability. Plaintiff's Complaint also does not plead
any facts supporting his allegations that he was “racially
harassed,” “threatened” or “interrogated.” Since, as the Court
discussed above, none of the complained of actions provides
the basis for a cognizable cause of action, leave to cure these
defects would be futile. These deficiencies may have been
excusable, albeit not cureable, had this Court not previously
informed Plaintiff of the requirements for pleading a cause of
action under 42 U.S.C. § 1983 against a municipality. See La
Grande v. Albany Police Dep't, 1:07–CV–757 (Dkt. No. 4). 4
Given that leave to amend would be futile, this Court denies
Plaintiff's request.
4

Notably, Plaintiff has also filed numerous
Complaints in the Northern District, many of
which include assertions of civil rights violations
and racial discrimination or harassment, wherein
Plaintiff has been granted leave to amend his
complaints. Plaintiff has filed eleven suits in the
Northern District since 2000, including the instant
matter. In fact, on May 12, 2008, Chief United
States District Judge Norman A. Mordue entered
an order enjoining Plaintiff from filing any further
actions or pleadings in this district without the prior
permission of the Chief Judge. Dkt. No. 6. This
Order was entered based on a record of vexatious
and frivolous pleadings previously filed by La
Grande.

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3

La Grande v. Town Of Bethlehem Police Dept., Not Reported in F.Supp.2d (2009)
2009 WL 2868231

III. CONCLUSION
Based on the foregoing, it is hereby

ORDERED, that Plaintiff's Motion for summary judgment
(Dkt. No. 12) is DENIED in its entirety; and it is further

ORDERED, that Defendants' Motion to dismiss (Dkt. No.
13) is GRANTED in its entirety; and it is further

ORDERED, that the Clerk serve a copy of this Decision and
Order on all parties.

ORDERED, that Plaintiff's request to amend his Complaint
(Dkt. No. 27) is DENIED; and it is further

IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2009 WL 2868231

End of Document

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4

Jenkins v. Liadka, Not Reported in F.Supp.2d (2012)
2012 WL 4052286

2012 WL 4052286
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Sylvia JENKINS, Plaintiff,
v.
Mr. LIADKA, Syracuse Police Officer; Mr. Sands,
Syracuse Police Officer; John Doe, Syracuse Police
Officer; and Syracuse Police Dep't, Defendants.
No. 5:10–CV–1223 (GTS/DEP).
|
Sept. 13, 2012.
Attorneys and Law Firms
Sylvia Jenkins, Syracuse, NY, pro se.
Hon. Mary Anne Dougherty, Corporation Counsel for
City of Syracuse, Catherine Ena Carnrike, Esq., Assistant
Corporation Counsel, of Counsel, Syracuse, NY, for
Defendants.

MEMORANDUM–DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this pro se civil rights
action filed by Sylvia Jenkins (“Plaintiff”) against Mr. Liadka,
Mr. Sands, John Doe, and Syracuse Police Department
(“Defendants”), is Defendants' motion to dismiss Plaintiff's
Complaint for insufficient service of process pursuant to
Fed.R.Civ.P. 12(b)(5) and/or for failure to state a claim
pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 13.) For the
reasons set forth below, Defendants' motion is granted in part
and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiff's Complaint
Generally, construed with the utmost of special liberality,
Plaintiff's Complaint asserts three claims against Defendants
arising from an investigatory stop in September 2010, in
Syracuse, New York: (1) a claim that three Syracuse Police
Officers unreasonably searched her in violation of the Fourth
Amendment; (2) a claim that they unlawfully seized, and
failed to return, her personal property in violation of the

Fourth, Fifth, and/or Fourteenth Amendments; and (3) a claim
that they subjected her to excessive force in violation of
the Fourth Amendment. (See generally Dkt. No. 1 [Plf.'s
Compl].)
Generally, in support of these claims, Plaintiff alleges as
follows: (1) on the evening of September 9, 2010, she was
stopped on Butternut Street in the City of Syracuse by
two officers, who questioned her regarding a call they had
received; (2) when she told the two police officers that she
did not know what they were talking about and “attempted
to go on about [her] business,” the officers became “uptight,
rude, [and] abnormal in their conversations [and] behavior,”
and threatened her; (3) the officers then proceeded to conduct
a search of “all [of Plaintiff and her] personal property,”
and, in the process of doing so, twisted her arm and forced
her onto the front of their police vehicle; (4) a third police
officer arrived, and she was assaulted by all three officers
(hereinafter “Defendants”), who hit her on the back and threw
her onto the police vehicle; (5) following the deprivation on
September 9, 2010, Defendants denied her a post-deprivation
remedy through a combination of threats, intimidation and/
or nonresponsiveness; and (6) Defendants took these actions
against her intentionally because they did not personally like
her, given her previous interactions with the Syracuse Police
Department. (Id.)
Plaintiff further alleges that, as a result of this incident,
she suffered various injuries and losses, including (1) a
“tremendous setback in already trying to recover in an [sic]
grave overall manner of my life [and] lifestyle involving
officials internally [and] externally,” (2) head and back pain,
and mental suffering, (3) loss of personal property, and, (4)
loss of employment. (Id.) As relief, Plaintiff requests an award
of twelve thousand dollars ($12,000) in damages. (Id. at ¶ 6.)
Familiarity with the remaining factual allegations supporting
Plaintiff's three claims is assumed in this Decision and Order,
which is intended primarily for review by the parties. (See
generally Dkt. No. 1.)
B. Defendants' Motion
*2 On May 6, 2011, Defendants filed a motion to dismiss.
(Dkt. No. 13, Attach 2.) Generally, in support of their motion,
Defendants assert the following two arguments: (1) because
the Complaint was not served within the time allowed by
Fed.R.Civ.P. 4 or Local Rule 4.1 of the Local Rules of Practice
for this Court, the Court lacks jurisdiction over Defendants in
accordance with Fed.R.Civ.P. 4; and (2) the Complaint fails

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1

Jenkins v. Liadka, Not Reported in F.Supp.2d (2012)
2012 WL 4052286

to state a claim upon which relief can be granted, because
(a) the Complaint fails to identify what constitutional rights
Plaintiff is attempting to vindicate, (b) even if the Complaint
has sufficiently identified a constitutional violation, the
Complaint fails to allege facts plausibly suggesting the
personal involvement of the individual Defendants in any
such constitutional violation, (c) the City of Syracuse Police
Department does not have the legal capacity to be sued, (d)
even if Plaintiff's Complaint can be liberally construed as
attempting to assert a claim against the City of Syracuse,
the Complaint fails to allege facts plausibly suggesting that
the individual Defendants' actions the result of a city policy
or custom sufficient to confer municipal liability upon the
City, (e) the Fifth Amendment does not govern a plaintiff's
deprivation-of-property claim against state actors, (f) the
Complaint fails to allege facts plausibly suggesting that force
was used or that if force was used it was excessive for
purposes of a Fourth Amendment claim, and (g) based on
Plaintiff's factual allegations, Defendants Liadka and Sands
are protected from liability as a matter of law by the doctrine
of qualified immunity. (See generally Dkt. No. 13, Attach. 2.)
On June 2, 2011, Plaintiff filed a response to Defendants'
motion. Generally, Plaintiff's response, which is handwritten
and three pages in length, states that she “definitely oppose[s]
[Defendants'] request” for the dismissal of her Complaint.
(See generally Dkt. No. 17.) However, Plaintiff's response
does not address the legal arguments asserted by Defendants
for the dismissal of Plaintiff's Complaint. (Compare Dkt.
No. 17 with Dkt. No. 13, Attach. 2.) Although Plaintiff's
response was submitted two days after the expiration of
the responsedeadline, the Court has accepted it, out of an
extension of special solicitude to her as a pro se civil rights
litigant.
In addition, Plaintiff has filed three letters to the Court on the
following dates: July 6, 2011, August 22, 2011, and January
13, 2012. (Dkt. No. 18–20.) Generally, these letters contain
assertions that Plaintiff believes that the police are following
her, treating her negatively, and responding unsatisfactorily to
her telephone calls. (Id.) To the extent that these three letters
are intended to constitute papers in opposition to Defendants'
motion, the Court will not consider them, because (1) they
are not responsive to the motion, and/or (2) they were not
submitted in a timely manner. Moreover, to the extent that
these three letters are intended to constitute a request for
relief, the Court will not consider them, because do not
state the relief sought, state with particularity the grounds
for seeking the order, and attach a memorandum of law and

affidavit, as required by Fed.R.Civ.P. 7(b) and Local Rule 7.1
of the Local Rules of Practice for this Court.
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing Motions to Dismiss for
Insufficient Service of Process
*3 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 or 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).
The Local Rules of Practice for this Court shorten the service
requirements under Fed.R.Civ.P. 4. Specifically, 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).
B. Legal Standard Governing Motions to Dismiss for
Failure to State Claim
It has long been understood that a defendant may base
a motion to dismiss for failure to state a claim upon
which relief can be granted on either 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 Cnty., 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 motions are often based on the first ground,
a few words on that ground are appropriate. Rule 8(a)(2) of
the Federal Rules of Civil Procedure requires that a pleading

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2

Jenkins v. Liadka, Not Reported in F.Supp.2d (2012)
2012 WL 4052286

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, 556 U.S. 662, 129 S.Ct. 1937, 1949–52, 173 L.Ed.2d
868 (2009).
*4 Most notably, in Bell Atlantic 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, 550 U.S. 544, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v.
Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (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 turning 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 course) that all the allegations in the complaint are true.
Id. 1
1

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, 551 U.S.
89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (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 ).

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, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (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 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.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks and

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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.
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-defendantunlawfully-harmed-me accusation.” Id.
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. 2 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. 3 Stated more simply, when
a plaintiff is proceeding pro se, “all normal rules of pleading
are not absolutely suspended.” Jackson, 549 F.Supp.2d at 214,
n. 28.
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 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).

*5 Finally, a few words are appropriate regarding what
documents are considered on a motion to dismiss for
failure to state a claim upon which relief can be granted,
pursuant to Fed.R.Civ.P. 12(b)(6). The court may consider
the following documents without triggering the summary
judgment standard: “(1) documents attached as an exhibit
to the complaint or answer, (2) documents incorporated by
reference into 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.” Planck v. Schenectady Cnty., 12–CV–0336,
2012 WL 1977972, at *5 (N.D.N.Y. June 1, 2012) (Suddaby,
J.). Moreover, “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 [her]
complaint-to the extent those papers are consistent with the
allegations in the complaint.” Planck, 2012 WL 1977972, at
*5.
C. Legal Standard Governing Unopposed Motions
In this District, when a non-movant fails to oppose a legal
argument asserted by a movant in support of a motion,
the movant's burden with regard to that argument has been
lightened such that, in order to succeed on that argument,
the movant need only show that the argument possesses
facial merit, which has appropriately been characterized as
a “modest” burden. See N.D.N.Y. L.R. 7.1(b) (3) (“Where a
properly filed motion is unopposed and the Court determines
that the moving party has met its burden to demonstrate
entitlement to the relief requested therein....”); Rusyniak
v. Gensini, 07–CV–0279, 2009 WL 3672105, at *1, n.
1 (N.D.N.Y.Oct.30, 2009) (Suddaby, J.) (collecting cases);
Este–Green v. Astrue, 09–CV–0722, 2009 WL 2473509, at
*2 & n. 3 (N.D.N.Y. Aug.7, 2009) (Suddaby, J.) (collecting
cases).
D. Legal Standards Governing Plaintiff's Claims
Because the Court has, in its Decision and Order of March
7, 2011, addressed the relevant points of law contained in
the legal standards governing Plaintiff's claims in this action,
the Court will not again recite, in their entirety, those legal
standards in this Decision and Order, 9 which is intended
primarily for review by the parties. (See generally Dkt. No. 5
[Decision and Order].)
E. Legal Standards Governing Defendants' Defenses
1. Defense of Lack of Separate Identity
“Under 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
Dept., 224 F.Supp.2d 463, 477 (E.D.N.Y.2002). “Pursuant
to Fed.R.Civ.P. 17, New York governs the capacity of

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a police department to sue or be sued. In New York,
police departments like the defendant, which are merely
administrative arms of a municipal corporation, do not have
a legal identity separate and apart from the town.” Loria v.
Irondequoit 775 F.Supp. 599, 606 (W.D.N.Y.1990). While a
municipality can sue or be sued, the police department, which
does not exist separate from that municipality, can not. Baker
v. Willett, 42 F.Supp.2d 192, 198 (N.D.N.Y.1999).

1983 for unconstitutional acts by [its] employees,
a plaintiff must show that the violation of [his or]
her constitutional rights resulted from a municipal
custom or policy.”).
6

2. Defense of Limited Municipal Liability
*6 It is well established that “[a] municipality may not be
held liable in a Section 1983 action for the conduct of a
lower-echelon employee solely on the basis of respondeat
superior.” 4 “Rather, to establish municipal liability under §
1983 for unconstitutional acts by a municipality's employees,
a plaintiff must show that the violation of [his or] her
constitutional rights resulted from a municipal custom or
policy .” 5 “Thus, to hold a [municipality] liable under § 1983
for the unconstitutional actions of its employees, a plaintiff
is required to ... prove three elements: (1) an official policy
or custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.” 6
4

5

Powell v. Bucci, 04–CV–1192, 2005 WL 3244193,
at *5 (N.D.N.Y. Nov.30, 2005) (McAvoy, J.); see
also Monell v. Dept. of Soc. Servs., 436 U.S. 658,
691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (“[A]
local government may not be sued under § 1983
for an injury inflicted solely by its employees or
agents.”); Batista v. Rodriguez, 702 F.2d 393, 397
(2d Cir.1983) (“[A] [municipality] may not be held
for the actions of its employees or agents under a
theory of respondeat superior.” ).
Powell, 2005 WL 3244193, at *5; Monell, 436 U.S.
at 690–691 (“[L]ocal governments ... may be sued
for constitutional deprivations visited pursuant
to governmental ‘custom’ even though such a
custom has not received formal approval through
the body's official decisionmaking channels.”);
Batista, 702 F.2d at 397 (“[M]unicipalities may
be sued directly under § 1983 for constitutional
deprivations inflicted upon private individuals
pursuant to a governmental custom, policy,
ordinance, regulation, or decision.”); Smith v.
City of New York, 290 F.Supp.2d 317, 321
(S.D.N.Y.2003) (“In order to establish the liability
of [municipal] defendants in an action under §

Batista, 702 F.2d at 397, accord, Zahra v. Town of
Southold, 48 F.3d 674, 685 (2d Cir.1995), McKeon
v. Daley, 101 F.Supp.2d 79, 92 (N.D.N.Y.2000)
(Hurd, J.), Merriman v. Town of Colonie, NY, 934
F.Supp. 501, 508 (N.D.N.Y.1996) (Homer, M.J.);
Douglas v. Cnty. of Tompkins, 90–CV–0841, 1995
WL 105993, at *12 (N.D.N.Y. March 2, 1995)
(McCurn, J.), Keyes v. Cnty. of Albany, 594 F.Supp.
1147, 1156 (N.D.N.Y.1984) (Miner, J.).

With regard to the first element (the existence of a policy
or custom), a “[p]laintiff may establish the ‘policy, custom
or practice’ requirement by demonstrating: (1) a formal
policy officially endorsed by the municipality ...; (2) actions
taken by government officials responsible for establishing
municipal policies related to the particular deprivation in
question ...; (3) a practice so consistent and widespread
that it constitutes a ‘custom or usage’ sufficient to impute
constructive knowledge to the practice of policymaking
officials ...; or (4) a failure by policymakers to train or
supervise subordinates to such an extent that it amounts to
‘deliberate indifference’ to the rights of those who come in
contact with the municipal employees....” 7 With regard to the
second element (causation), a plaintiff must show “a direct
causal link” or “an affirmative link” between the municipal
policy or custom and the alleged constitutional deprivation
(i.e., that the policy or custom was the “moving force” behind
the deprivation). 8
7

8

Dorsett–Felicelli, Inc., 371 F.Supp.2d 183, 194
(N.D.N.Y.2005) (Kahn, J.) (citing three Supreme
Court cases for these four ways), accord, Dunbar
v. Cnty. of Saratoga, 358 F.Supp.2d 115, 133–
134 (N.D.N.Y.2005) (Munson, J.); see also Clayton
v. City of Kingston, 44 F.Supp.2d 177, 183
(N.D.N.Y.1999) (McAvoy, J.) (transposing order
of second and third ways, and citing five more
Supreme Court cases).
See City of Canton, Ohio v. Harris, 489 U.S.
378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)
(“[O]ur first inquiry in any case alleging municipal
liability under § 1983 is the question whether
there is a direct causal link between a municipal
policy or custom and the alleged constitutional

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deprivation.”); City of Oklahoma City v. Tuttle, 471
U.S. 808, 823, n. 8, 105 S.Ct. 2427, 85 L.Ed.2d
791 (1985) (“The fact that municipal ‘policy’ might
lead to ‘police misconduct’ is hardly sufficient to
satisfy Monell' s requirement that the particular
policy be the ‘moving force’ behind a constitutional
violation. There must at least be an affirmative link
between [for example] the training inadequacies
alleged, and the particular constitutional violation
at issue.”); Monell, 436 U.S. at 694 (“[I]t is when
execution of a government's policy or custom ...
inflicts the injury that the government as an
entity is responsible under § 1983. Since this
case unquestionably involves official policy as
the moving force of the constitutional violation
[at issue] ... we must reverse the judgment
below.”); Vippolis v. Village of Haverstraw, 768
F.2d 40, 44 (2d Cir.1985) (“A plaintiff who seeks
to hold a municipality liable in damages under
section 1983 must prove that ... an official policy
or custom [was] the cause of the deprivation
of constitutional rights.... [T]he plaintiff must
establish a causal connection-an affirmative linkbetween the policy and the deprivation of his
constitutional rights.”) [internal quotation marks
and citation omitted]; Batista v. Rodriguez, 702
F.2d 393, 397 (2d Cir.1983) (“Absent a showing
of a causal link between an official policy or
custom and the plaintiff's injury, Monell prohibits
a finding of liability against the City.”); Powell,
2005 WL 3244193, at *5 (“Ultimately, the plaintiff
must demonstrate a direct causal link between
a municipal policy or custom, and the alleged
constitutional deprivation.”) [internal quotation
marks and citation omitted].
3. Defense of Qualified Immunity
“Once qualified immunity is pleaded, plaintiff's complaint
will be dismissed unless defendant's alleged conduct,
when committed, violated ‘clearly established statutory or
constitutional rights of which a reasonable person would have
known.’ “ Williams v. Smith, 781 F.2d 319, 322 (2d Cir.1986)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 815 [1982] ).
As a result, a qualified immunity inquiry in a civil rights
case generally involves two issues: (1) “whether the facts,
viewed in the light most favorable to the plaintiff establish a
constitutional violation”; and (2) “whether it would be clear
to a reasonable [official] that his conduct was unlawful in the
situation confronted.” Sira v. Morton, 380 F.3d 57, 68–69 (2d

Cir.2004) [citations omitted], accord, Higazy v. Templeton,
505 F.3d 161, 169, n. 8 (2d Cir.2007) [citations omitted].
In determining the second issue (i.e., whether it would be
clear to a reasonable official that his conduct was unlawful in
the situation confronted), courts in this circuit consider three
factors:

(1) whether the right in question was
defined with ‘reasonable specificity’;
(2) whether the decisional law of
the Supreme Court and the applicable
circuit court support the existence
of the right in question; and (3)
whether under preexisting law a
reasonable defendant official would
have understood that his or her acts
were unlawful.

*7 Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991)
[citations omitted], cert. denied, 503 U.S. 962, 112 S.Ct.
1565, 118 L.Ed.2d 211 (1992). 9 “As the third part of the test
provides, even where the law is ‘clearly established’ and the
scope of an official's permissible conduct is ‘clearly defined,’
the qualified immunity defense also protects an official if
it was ‘objectively reasonable’ for him at the time of the
challenged action to believe his acts were lawful.” Higazy
v. Templeton, 505 F.3d 161, 169–70 (2d Cir.2007) [citations
omitted]. 10 This “objective reasonableness” part of the test
is met if “officers of reasonable competence could disagree
on [the legality of defendant's actions].” Malley v. Briggs, 475
U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). 11 As
the Supreme Court has explained,
9

10

See also Pena v. DePrisco, 432 F.3d 98, 115 (2d
Cir.2005); Clue v. Johnson, 179 F.3d 57, 61 (2d
Cir.1999); McEvoy v. Spencer, 124 F.3d 92, 97 (2d
Cir.1997); Shechter v. Comptroller of City of New
York, 79 F.3d 265, 271 (2d Cir.1996); Rodriguez v.
Phillips, 66 F.3d 470, 476 (2d Cir.1995); Prue v.
City of Syracuse, 26 F.3d 14, 17–18 (2d Cir.1994);
Calhoun v. New York State Division of Parole, 999
F.2d 647, 654 (2d Cir.1993).
See also Anderson v. Creighton, 483 U.S. 635,
639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)

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(“[W]hether an official protected by qualified
immunity may be held personally liable for an
allegedly unlawful official action generally turns
on the ‘objective reasonableness of the action.’
”) [citation omitted]; Davis v. Scherer, 468 U.S.
183, 190, 104 S.Ct. 3012, 82 L.Ed.2d 139
(1984) (“Even defendants who violate [clearly
established] constitutional rights enjoy a qualified
immunity that protects them from liability for
damages unless it is further demonstrated that their
conduct was unreasonable under the applicable
standard.”); Benitez v. Wolff, 985 F.2d 662, 666 (2d
Cir.1993) (qualified immunity protects defendants
“even where the rights were clearly established,
if it was objectively reasonable for defendants to
believe that their acts did not violate those rights”).
11

See also Malsh v. Correctional Officer Austin,
901 F.Supp. 757, 764 (S.D.N.Y.1995) [citing
cases]; Ramirez v. Holmes, 921 F.Supp. 204, 211
(S.D.N.Y.1996).
[T]he qualified immunity defense ... provides ample
protection to all but the plainly incompetent or those
who knowingly violate the law.... Defendants will not
be immune if, on an objective basis, it is obvious that
no reasonably competent officer would have concluded
that a warrant should issue; but if officers of reasonable
competence could disagree on this issue, immunity should
be recognized.
Malley, 475 U.S. at 341. 12

12

See also Hunter v. Bryant, 502 U.S. 224, 299,
112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (“The
qualified immunity standard gives ample room
for mistaken judgments by protecting all but
the plainly incompetent or those who knowingly
violate the law.”) [internal quotation marks and
citation omitted].

III. ANALYSIS
A. Whether Plaintiff's Complaint Should Be
Dismissed for Failure to Serve Process in Timely
Manner
After carefully considering the matter, the Court must
answer this question in the negative. By Defendants' own
calculations, Plaintiff's Complaint was served on April 18,
2011–a mere 42 days after the Court granted Plaintiff's motion
to proceed in forma pauperis, approved the filing of her

Complaint, and directed the Clerk of the Court to issue
summonses and forward them with the Complaint to the
United States Marshal's Service, for service on Defendants.
(Dkt. No. 5 [Decision and Order filed March 7, 2011].)
Indeed, Defendants acknowledge that Plaintiff completed the
Civil Summonses and USM285 form, and returned them to
the Clerk's Office (so that the Clerk's Office could forward
them to the U.S. Marshal's Service for service of Plaintiff's
Complaint) less than eight days after receiving them from the
Clerk's Office. (Dkt. No. 13, Attach. 1, at ¶¶ 6–7; Dkt. No. 13,
Attach. 2, at 9 [attaching page “8” of Defs.' Memo. of Law];
see also Dkt. Nos. 6, 8.) After that point in time, service was
largely if not entirely outside of Plaintiff's control.
Under the circumstances, the Court finds that good cause
exists to extend the deadline for service by 42 days. The
Court notes that a contrary conclusion (e.g., a conclusion
that Plaintiff had to serve her Complaint by December 13,
2010 pursuant to Local Rule 4.1, or even February 11, 2011
pursuant to Fed.R.Civ.P. 4) would render meaningless the
Court's directive to the Clerk of the Court, on March 5, 2011,
to take sufficient action to enable the United States Marshal's
Service to effect service for Plaintiff.
B. Whether Plaintiff's Complaint Should Be Dismissed
for Failure to State a Claim Upon Which Relief Can
Be Granted
1. Whether Plaintiff's Complaint Should Be
Dismissed for Failing to Sufficiently Identify What
Constitutional Rights She Is Attempting to Vindicate
*8 After carefully considering the matter, the Court must
answer this question also in the negative. In construing the
pleadings of a pro se civil rights litigant in this Circuit, a
district court's imagination should be limited only by the
plaintiff's factual allegations, not by the legal claims set out in
his or her pleadings. See Phillips v. Girdich, 408 F.3d 124, 130
(2d Cir.2005) (“We leave it for the district court to determine
what other claims, if any, Phillips has raised. In so doing, the
court's imagination should be limited only by Phillips' factual
allegations, not by the legal claims set out in his pleadings.”).
Here, based on Plaintiff's (albeit scant and confused) factual
allegations, the Court can imagine that she is attempting
to assert the following three claims: (1) a claim of an
unreasonable search under the Fourth Amendment; (2) a
claim of an unlawful seizure of, and failure to return, her
personal property under the Fourth, Fifth and/or Fourteenth

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Amendments; and (3) a claim of excessive force under the
Fourth Amendment.
2. Whether Plaintiff's Claims Against the Individual
Defendants Should Be Dismissed for Failing to
Allege Facts Plausibly Suggesting Their Personal
Involvement in the Constitutional Violations Alleged
After carefully considering the matter, the Court answers
this question in the affirmative for the reasons stated by
Defendants in their memorandum of law. (Dkt. No. 13,
Attach. 2, at 13 [attaching page “12” of Defs.' Memo. of
Law].) The Court would add only the following three brief
points.
First, at the very least, Defendants have met the lightened
burden that was created by Plaintiff's failure to respond to this
argument for dismissal. See, supra, Part III.C. of this Decision
and Order. 13 Second, in any event, the Court would reach
the same conclusion even if it were to subject Defendants'
argument to the more rigorous scrutiny appropriate for a
contested argument. Third, and finally, even when construed
with the utmost of special liberality, the Complaint does not
identify the precise location of the incident, which officers
were responsible for violating her rights, how she suffered the
head injury she alleges, what property was taken from her, and
how Defendants frustrated her efforts to recover that property.
See Vogeler v. Colbath, 04–CV–6071, 2005 U.S. Dist. LEXIS
44658, at *29, 2005 WL 2482549 (S.D.N.Y. Oct. 6, 2005)
(“Plaintiffs must also allege ... the personal involvement of
the Defendant in the actions underlying their claim.”). 14
13

14

Under the circumstances, the Court finds that
Plaintiff had sufficient notice of the consequences
of failing to respond to the arguments asserted in
Defendants' motion. For example, on October 14,
2010, Plaintiff was given a courtesy copy of the
District's Pro Se Handbook and a courtesy copy of
the Local Rules of Practice for the Northern District
of New York. (Dkt. No. 4.) In addition, on May
6, 2011, Defendants advised Plaintiff of her need
to respond to their arguments. (Dkt. No. 15.) Also,
Plaintiff had extensive experience as a pro se civil
rights litigant in this District, before responding to
the motion in question. See, infra, Part III.D. of this
Decision and Order.
Indeed, the Court notes that one of the officers
that Plaintiff lists in her Complaint has not been

identified. In a prior decision by the Court, Plaintiff
was ordered to take reasonable steps to ascertain the
identity of the unnamed officer, immediately notify
the Court, amend her complaint to include the
identity of the third Defendant, and also to have that
officer served. (Dkt. No. 5, at 14.) Because Plaintiff
has not done so, her alleged physical injuries
remain attributable to an unidentified person.
For all of these alternative reasons, Plaintiff's claims against
the individual Defendants are dismissed.
3. Whether the Syracuse Police Department Should Be
Dismissed as a Defendant
After carefully considering the matter, the Court answers
this question in the affirmative for the reasons stated by
Defendants in their memorandum of law. (Dkt. No. 13, Attach
2, at 13.) The Court would add only the following three brief
points.
*9 First, at the very least, Defendants have met the
lightened burden that was created by Plaintiff's failure to
respond to this argument for dismissal. Second, in any
event, the Court would reach the same conclusion even if it
were to subject Defendants' argument to the more rigorous
scrutiny appropriate for a contested argument. Third, and
finally, “as Plaintiff has been told several times, under New
York State law, departments, like the Onondaga County
Sheriff's Department, that are merely administrative arms of
a municipality, do not have a legal identity separate from
the municipality and may not sue or be sued.” Jenkins
v. Onondaga Cnty. Sheriff's Dep't, 12–CV–0855, Report–
Recommendation, at 5 (N.D.N.Y. filed June 28, 2012)
(Baxter, J.) (citing Hayes v. Cnty. of Sullivan, 07–CV–
0667, 2012 WL 1129373, at *24 [S.D.N.Y. March 30, 2012]
). Because the Syracuse Police Department is merely an
administrative arm of the City of Syracuse, it is not a proper
defendant in this case. The real party in interest is the City of
Syracuse itself.
For all of these alternative reasons, the Syracuse Police
Department dismissed as a Defendant.
4. Whether, Even if the City of Syracuse Were
Substituted for the Police Department, Plaintiff's
Claims Against the City Should Be Dismissed for
Failing to Allege Facts Plausibly Suggesting Municipal
Liability

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After carefully considering the matter, the Court answers
this question in the affirmative for the reasons stated by
Defendants in their memorandum of law. (Dkt. No. 13,
Attach. 2, at 14–15 [attaching pages “13” and “14” of Defs.'
Memo. of Law].) The Court would add only the following
three brief points.
First, at the very least, Defendants have met the lightened
burden that was created by Plaintiff's failure to respond to this
argument for dismissal. Second, in any event, the Court would
reach same conclusion even if it were to subject Defendants'
argument to the more rigorous scrutiny appropriate for a
contested argument. Third, even when it is construed with
the utmost of special liberality, Plaintiff's Complaint has not
alleged facts plausibly suggesting a widespread policy or
custom promulgated by the municipal policy maker necessary
to hold the City liable for her injuries. As indicated above
in Part II.E.2. of this Decision and Order, Plaintiff must
allege facts plausibly suggesting that the municipality “has
adopted a ‘custom’ or ‘policy’ which is the ‘moving force’
behind [the violation].” Zappala v. Albicelli, 980 F.Supp. 635,
639 (N.D.N.Y.1997) (Scullin, J.) (citing, inter alia, Monell
v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658,
689 [1978] ). However, Plaintiff has not alleged any official
policy or custom adopted by the City of Syracuse or its Police
Department, 15 let alone one responsible for the alleged
injuries she received. Because Monell prohibits the finding
of liability against a City when there is no causal connection
between a municipal policy and a resulting injury, Syracuse
City Police Department cannot be responsible for Plaintiff's
alleged injuries. Monell, 436 U.S. at 692. As a result, the
City of Syracuse cannot be maintained as a Defendant in
this action, and Plaintiff's Section 1983 claims against it are
dismissed.
15

In addition to not alleging facts plausibly
suggesting the existence of a department-wide
policy or custom, Plaintiff has not alleged facts
plausibly suggesting that Officers Liadka, Sands,
and the unnamed officer created or promulgated
that policy, or even that they were final
policymakers. “A municipal official that exercises
discretion, whether it be in a constitutional or
unconstitutional manner, in an area of which
that official is not the final policymaker, cannot,
by itself, establish municipal liability.” Clayton
v. City of Kingston, 44 F.Supp.2d 177, 184
(N.D.N.Y.1999) (McAvoy, C.J.).

*10 For all of these reasons, Plaintiff's claims against
the City of Syracuse Police Department and/or the City of
Syracuse are dismissed on this alternative ground.
5. Whether, in the Alternative, Plaintiff's Deprivation–
of–Property Claim Should Be Dismissed to the Extent
It Is Grounded on the Fifth Amendment
After carefully considering the matter, the Court answers
this question in the affirmative for the reasons stated by
Defendants in their memorandum of law. (Dkt. No. 13,
Attach. 2, at 16–17 [attaching pages “15” and “16” of Defs.'
Memo. of Law].) The Court would add only the following
four brief points.
First, at the very least, Defendants have met the lightened
burden that was created by Plaintiff's failure to respond
to this argument for dismissal. Second, in any event, the
Court would reach the same conclusion even if it were to
subject Defendants' argument to the more rigorous scrutiny
appropriate for a contested argument. Third, a takings claim
is not ripe where a state remedy is potentially available.
Vandor Inc. v. Militello, 301 F.3d 37, 39 (2d. Cir.2002). As
the Supreme Court has explained,

An
unauthorized
intentional
deprivation of property by a
state employee does not constitute
a violation of the procedural
requirements of the Due Process
Clause of the Fourteenth Amendment
if a meaningful postdeprivation
remedy for the loss is available.
For intentional, as for negligent
deprivations of property by state
employees, the state's action is not
complete until and unless it provides
or refuses to provide a suitable
postdeprivation remedy.

Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194,
82 L.Ed.2d 393 (1984). Police are not required to provide
the owner with notice for state-law remedies, which are
“established by published, generally available state statutes
and case law.” City of W. Covina v. Perkins, 525 U.S. 234,
240–241, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999). “Once the
property owner is informed that his property has been seized,

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2012 WL 4052286

he can turn to these public sources to learn about the remedial
procedures that are available to him. The City need not take
other steps to inform him of his options.” City of W. Covina,
525 U.S. at 241. Here, Plaintiff has not alleged facts plausibly
suggesting that she attempted to recover her property in the
proper manner (or even what property was taken). Fourth,
and finally, Plaintiff does not allege facts suggesting that
her property was taken for public use in an unconstitutional
manner that would require her to be paid just compensation.
Instead, Plaintiff alleges that, after she attempted to escape
from their investigation and was restrained by officers, she
was searched and had property taken from her.

necessary for a third unnamed officer to step in and assist
Defendants Sands and Liadka in controlling Plaintiff. (Dkt.
No. 1, at ¶ 4 & Attachment.) Simply stated, it is plausible,
based on Plaintiff's factual allegations, that the amount of
force used by the officers to pull her hands behind her back
and detain her was necessary to keep her from getting away
and “going about [her] business.” (Id. at ¶ 4.) It is important
to note that Plaintiff does not allege facts plausibly suggesting
any physical injury other than vague “head & back pains.” (Id.
at ¶ 5.) 17
16

More specifically, the standard governing
constitutional excessive-force claims against
government officials in “the course of making
an arrest, investigatory stop, or other seizure” of
a person is the Fourth Amendment's objective
reasonableness standard. Graham v. Connor, 490
U.S. 386, 388, 391, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989). Pursuant to this standard,
three elements must be objectively examined to
determine whether excessive force was used for
Fourth Amendment violations: “(1) the need for the
application of force; (2) the relationship between
that need and the amount of force that was used;
and (3) the extent of the injury inflicted.” Graham,
490 U.S. at 390, 397. It is essential to look
at surrounding circumstances in each case, and
analyze “whether the suspect poses an immediate
threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting
to evade arrest by flight.” Id. at 396. The “extent of
intrusion on the suspect's rights” must be balanced
against the “importance of governmental interests.”
Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694,
85 L.Ed.2d 1 (1985).

17

More specifically, Plaintiff's Complaint does not
allege facts plausibly suggesting that her injuries
were significant, how long the pain lasted, or that
medical treatment was necessary (or even sought)
following the incident. See Smith v. City of New
York, 04–CV–3286, 2010 U.S. Dist. LEXIS 88774,
at *27, 2010 WL 3397683 (S.D.N.Y. Aug. 27,
2010) (“Courts in this Circuit have consistently
held that an injury is de minimis when it is
temporary and/or minor in severity.”) (collecting
cases).

For all of these alternative reasons, Plaintiff's deprivation-ofproperty claim is dismissed to the extent that it is grounded
on the Fifth Amendment.
6. Whether, in the Alternative, Plaintiff's Excessive
Force Claim Should Be Dismissed for Failing to Allege
Facts Plausibly Suggesting Either that Force Was
Used or that Any Such Force Was Excessive
*11 After carefully considering the matter, the Court
answers this question in the affirmative for the reasons stated
by Defendants in their memorandum of law. (Dkt. No. 13,
Attach. 2, at 17–18 [attaching pages “16” and “17” of Defs.'
Memo. of Law].) The Court would add only the following
three brief points.
First, at the very least, Defendants have met the lightened
burden that was created by Plaintiff's failure to respond
to this argument for dismissal. Second, in any event, the
Court would reach same conclusion even if it were to
subject Defendants' argument to the more rigorous scrutiny
appropriate for a contested argument. Third, as stated in the
Court's Decision and Order of March 7, 2011, in evaluating
a Fourth Amendment excessive-force claim, “courts must
consider the scope of the particular intrusion, the manner in
which it is conducted, the justification for initiating it, and
the place in which it is conducted.” (Dkt. No. 5, at 13.) 16
Here, Plaintiff alleges the following facts, which could be
construed as plausibly suggesting that, at the time the incident
occurred, she had given Defendants probable cause to use the
force at issue against her: (1) Defendants were dispatched to
that location regarding a problem; (2) Defendants specifically
chose to question Plaintiff about the incident; (3) Plaintiff
was attempting to get away from Defendant when they were
attempting to question her; (4) she acted in such a way as
to cause Defendants to become “worked up”; (5) it became

For all of these reasons, Plaintiff's excessive force claim is
dismissed on this alternative ground.

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Jenkins v. Liadka, Not Reported in F.Supp.2d (2012)
2012 WL 4052286

7. Whether, in the Alternative, Plaintiff's Claims
Against the Individual Defendants Should Be
Dismissed Because, Based on the Factual Allegations
of the Complaint, Defendants Are Protected from
Liability as a Matter of Law by the Doctrine of
Qualified Immunity
After carefully considering the matter, the Court answers
this question in the affirmative for the reasons stated by
Defendants in their memorandum of law. (Dkt. No. 13,
Attach. 2, at 19–20 [attaching pages “18” and “19” of Defs.'
Memo. of Law].) The Court would add only the following
three brief points.
First, at the very least, Defendants have met the lightened
burden that was created by Plaintiff's failure to respond
to this argument for dismissal. Second, in any event, the
Court would the reach same conclusion even if it were to
subject Defendants' argument to the more rigorous scrutiny
appropriate for a contested argument. Third, as indicated
above in Part I.E.3. of this Decision and Order, “[u]nder
federal law, a police officer is entitled to qualified immunity
where (1) his conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known, or (2) it was objectively reasonable
for him to believe that his actions were lawful at the time
of the challenged act.” Jenkins v. City of New York, 478
F.3d 76, 87 (2d Cir.2007) (internal quotations and other
citations omitted). Here, based on Plaintiff's own factual
allegations, it is plausible that police officers of reasonable
competence could disagree as to whether Defendants' actions
were unlawful (e.g., given their need to question her, and her
attempt to flee the scene).
*12 For all of these reasons, Plaintiff's claims against
the individual Defendants are dismissed on this alternative
ground.
C. Whether the Court Should Give Plaintiff an
Opportunity to File an Amended Complaint Before
Dismissing This Action
Generally, when a district court dismisses a pro se action, the
plaintiff will be allowed to amend his action. See Gomez v.
USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir.1999).
However, an opportunity to amend is not required where the
defects in the plaintiff's claims are substantive rather than
merely formal, such that any amendment would be futile. As
the Second Circuit has explained, “[w]here it appears that

granting leave to amend is unlikely to be productive, ... it is
not an abuse of discretion to deny leave to amend.” Ruffolo
v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993)
(citations omitted), accord, Brown v. Peters, 95–CV–1641,
1997 WL 599355, at *1 (N.D.N.Y. Sept.22, 1997) (Pooler, J.)
(“[T]he court need not grant leave to amend where it appears
that amendment would prove to be unproductive or futile.”)
(citation omitted); see also Foman v. Davis, 371 U.S. 178,
182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (denial not abuse
of discretion where amendment would be futile); Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (“The problem
with Cuoco's causes of action is substantive; better pleading
will not cure it. Repleading would thus be futile. Such a futile
request to replead should be denied.”) (citation omitted);
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d
Cir.1991) (“Of course, where a plaintiff is unable to allege
any fact sufficient to support its claim, a complaint should be
dismissed with prejudice.”) (citation omitted); Health–Chem
Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990) (“[W]here ...
there is no merit in the proposed amendments, leave to amend
should be denied”).
This rule applies even to pro se plaintiffs. See, e.g., Cuoco,
222 F.3d at 103; Brown, 1997 WL 599355, at *1. As explained
above in Part II.B. of this Decision and Order, 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; 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.
Here, the Court has some difficulty finding that the referenced
defect in Plaintiff's Complaint is merely formal. Nor is the
Court confident that granting Plaintiff an opportunity to
amend her Complaint will be productive. The Court notes that
the errors made by Plaintiff in this action were previously
made by her, and not corrected, on many occasions. Plaintiff
has been ordered numerous times to file amended complaints
at risk of dismissal of her case. 18 Of the seven times
an amended complaint was required, Plaintiff submitted an
amended complaint only three times. 19 Two of these were
one page documents which did not state a claim upon which
relief could be granted and were rejected by the Court, and
the other did not correct the deficiencies of the original
complaint. 20 Plaintiff did not comply with the Court's order

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11

Jenkins v. Liadka, Not Reported in F.Supp.2d (2012)
2012 WL 4052286

to amend her complaint at all on four occasions. 21 In one
case, Plaintiff was given an additional thirty day period to file
her amended complaint after she failed to do so within the
first 30 day period granted to her. Jenkins v. Emergency Dep't
Upstate Univ. Hosp., 06–CV–0060 (N.D.N.Y. filed Jan. 17,
2006). Similarly, in a separate case, Plaintiff did not follow
up on her original claim because she failed to appear for
three hearings the Court rescheduled despite warnings of her
need to comply with the Court Orders. Jenkins v. Onondaga
Sheriffs' Dep't, 05–CV–1457 (N.D.N.Y. filed Nov. 21, 2005).
All seven of these cases resulted in dismissal, most for failure
to prosecute, failure to comply with Court Orders, or failure
to state a claim. Five of Plaintiff's cases were not given leave
to amend because granting such leniency would have been
futile. 22
18

19

20
21

22

Jenkins v. Comm'r of Soc. Sec. Admin., 06–CV–
0059 (N.D.N.Y. filed Jan 17, 2006); Jenkins v.
Emergency Dep't Upstate Univ. Hosp., 06–CV–
0060 (N.D.N.Y. filed Jan. 17, 2006); Jenkins v.
Dep't Corr. Servs., 06–CV–0621 (N.D.N.Y. filed
May 19, 2006); Jenkins v. Onondaga Sheriff's
Dep't., 06–CV–1092 (N.D.N.Y. filed Sept. 12,
2006); Jenkins v. Sheriff's Dep't., 07–CV–0939
(N.D.N.Y. filed Sept. 11, 2007); Jenkins v. Murphy,
08–CV–0921 (N.D.N.Y. filed Aug. 8, 2008);
Jenkins v. Onondaga Cnty. Sheriff's Dep't., 12–
CV–0855 (N.D.N.Y. filed May 23, 2012).
Jenkins v. Dep't Corr. Servs., 06–CV–0621
(N.D.N.Y. filed May 19, 2006); Jenkins v. Comm'r
of Soc. Sec. Admin., 06–CV–0059 (N.D.N.Y. filed
Jan 17, 2006); Jenkins v. Sheriff's Dep't., 07–CV–
0939 (N.D.N.Y. filed Sept. 11, 2007).
Id.
Jenkins v. Emergency Dep't Upstate Univ. Hosp.,
06–CV–0060 (N.D.N.Y. filed Jan. 17, 2006);
Jenkins v. Onondaga Sheriff's Dep't., 06–CV–
1092 (N.D.N.Y. filed Sept. 12, 2006); Jenkins v.
Murphy, 08–CV–0921 (N.D.N.Y. filed Aug. 8,
2008); Jenkins v. Onondaga Cnty. Sheriff's Dep't.,
12–CV–0855 (N.D.N.Y. filed May 23, 2012)
Jenkins v. Emergency Dep't Upstate Univ. Hosp.,
06–CV–0060 (N.D.N.Y. filed Jan. 17, 2006);
Jenkins v. Mohawk Corr. Facility, 06–CV–1167
(N.D.N.Y. filed Sept. 29, 2006); Jenkins v. Sheriff's

Dep't, 07–CV–0939 (N.D.N.Y. filed Sept. 11,
2007); Jenkins v. USA, 09–CV0603 (N.D.N.Y.
filed May 11, 2009); Jenkins v. Rice, 11–CV–1037
(N.D.N.Y. filed Aug. 31, 2011).
*13 However, the Court is mindful of the special solicitude
that should be afforded to pro se civil rights litigants. For
these reasons, before the Court dismisses Plaintiff's action,
the Court will afford her an opportunity to file an Amended
Complaint correcting the above-described pleading defects
within thirty (30) days from the date of the filing of this
Decision and Order.
If Plaintiff submits an Amended Complaint, she is encouraged
to describe the acts of misconduct alleged therein and
identify each individual who participated in the misconduct.
Moreover, Plaintiff is advised that her Amended Complaint
must be a complete pleading that will replace and supersede
her original Complaint in its entirety. Finally, Plaintiff is
cautioned that, if she fails to file, in a timely fashion, an
Amended Complaint that successfully states a claim upon
which relief can be granted, her action will be dismissed with
prejudice without further Order of the Court.
D. Whether This Case Should Be Forwarded to the
Chief Judge with a Recommendation that an Anti–
Filing Injunction Order Be Issued Against Plaintiff
A review of Plaintiff's litigation history on Federal Judiciary's
Public Access to Court Electronic Records (“PACER”)
Service reveals that, before filing the current action on
October 13, 2010, she filed thirteen pro se civil actions in
this District alone-twelve of which have been dismissed and
the thirteen of which is being considered for dismissal. 23
A review of Plaintiff's litigation history has caused the
undersigned to believe that (1) Plaintiff lacks a good-faith
expectation in prevailing in her lawsuits, (2) she is vexatious
and indeed incorrigible when proceeding pro se, (3) she
has caused needless expense to other parties and placed an
unnecessary burden on the Court and its personnel, and (4)
no lesser sanctions (e.g., such as dismissal or chastisement)
would be adequate to protect the Court and other parties.
23

Jenkins v. Onondaga Sheriffs' Dep't, 05–CV–1457
(N.D.N.Y. filed Nov. 21, 2005); Jenkins v. Dep't
Corr. Servs., 06–CV–0621 (N.D.N.Y. filed May 19,
2006); Jenkins Comm'r of Soc. Sec. Admin., 06–
CV–0059 (N.D.N.Y. filed Jan. 17, 2006); Jenkins
v. Emergency Dep't Upstate Univ. Hosp., 06–CV–
0060 (N.D.N.Y. filed Jan. 17, 2006); Jenkins v. City

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12

Jenkins v. Liadka, Not Reported in F.Supp.2d (2012)
2012 WL 4052286

of Syracuse, 06–CV–1005 (N.D.N.Y. filed Aug. 21,
2006); Jenkins v. Onondaga Sheriff's Dep't, 06–
CV1092 (N.D.N.Y. filed Sept. 12, 2006); Jenkins
v. Mohawk Corr. Facility, 06–CV–1167 (N.D.N.Y.
filed Sept. 29, 2006); Jenkins v. City of Syracuse,
07–CV–0930 (N.D.N.Y. filed Sept. 7, 2007);
Jenkins v. Sheriff's Dep't, 07–CV–0939 (N.D.N.Y.
filed Sept. 11, 2007); Jenkins v. Murphy, 08–
CV–0921 (N.D.N.Y. filed Aug. 8, 2008); Jenkins
v. USA, 09–CV–0603 (N.D.N.Y. filed May 11,
2009); Jenkins v. Rice, 11–CV–1037 (N.D.N.Y.
filed Aug. 31, 2011); Jenkins v. Onondaga Cnty.
Sheriff's Dept., 12–CV–0855 (N.D.N.Y filed May
23, 2012).
For example, eight of Plaintiff's actions have resulted in a
dismissal for failure to state a claim or frivolousness, another
has resulted in the pending recommendation of a dismissal on
that ground, three others have resulted in a dismissal for lack
of subject-matter jurisdiction, and another has resulted in a

v. Onondaga Cnty. Sheriff's Dept., 12–CV–0855,
Report–Recommendation (N.D.N.Y filed June 28,
2012) (Baxter, M.J.).
Moreover, Plaintiff has sued the Onondaga County Sheriff's
Department four times. 25 As a result, she has been repeatedly
instructed on the legal standard for suing a municipality. For
example, on October 6, 2006, she was specifically informed
of the need to establish a custom or policy which is the
moving force behind a resulting injury. Jenkins v. Onondaga
Cnty. Sheriff's Dep't., 06–CV–1092, Decision and Order, at
4 (N.D.N.Y. filed Oct. 6, 2006) (McAvoy, J.). However,
despite receiving that specific information, she has repeatedly
continued to file improper claims against the Onondaga
County Sheriff's Department. 26
25

dismissal for failure to prosecute. 24
24

Jenkins v. Onondaga Sheriffs' Dep't, 05–CV–
1457, Decision and Order (N.D.N.Y. filed Apr.
25, 2006) (Scullin, J.); Jenkins Comm'r of
Soc. Sec. Admin., 06–CV–0059, Decision and
Order (N.D.N.Y. filed March 29, 2007) (Hurd,
J.); Jenkins v. Emergency Dep't Upstate Univ.
Hosp., 06–CV–0060, Memorandum–Decision and
Order (N.D.N.Y. filed April 14, 2006) (Scullin,
J.); Jenkins v. Dep't Corr. Servs., 06–CV–0621,
Decision and Order (N.D.N.Y. filed July 5, 2006)
(Kahn, J.); Jenkins v. City of Syracuse, 06–CV–
1005, Order (N.D.N.Y. filed Oct. 5, 2006) (Mordue,
C.J.); Jenkins v. Onondaga Sheriff's Dep't, 06–
CV–1092, Decision and Order, (N.D.N.Y. filed
Oct. 6, 2006) (McAvoy, J.); Jenkins v. Mohawk
Corr. Facility, 06–CV–1167, Decision and Order
(N.D.N.Y. filed Oct. 12, 2006) (Mordue, C.J.);
Jenkins v. City of Syracuse, 07–CV–0930, Decision
and Order (N.D.N.Y. filed Oct. 7, 2007) (Mordue,
C.J.); Jenkins v. Sheriff's Dep't, 07–CV–0939,
Decision and Order (N.D.N.Y. filed Nov. 21,
2007) (Hurd, J.); Jenkins v. Murphy, 08–CV–0921,
Order (N.D.N.Y. filed Oct. 14, 2008) (McCurn,
J.); Jenkins v. USA, 09–CV–0603, Decision and
Order (N.D.N.Y. filed May 28, 2009) (McAvoy, J.);
Jenkins v. Rice, 11–CV–1037, Decision and Order
(N.D.N.Y. filed Oct. 11, 2011) (Kahn, J.); Jenkins

26

Jenkins v. Onondaga Sheriffs' Dep't, 05–CV–
1457 (N.D.N.Y. filed Nov. 21, 2005); Jenkins v.
Onondaga Sheriff's Dep't, 06–CV–1092 (N.D.N.Y.
filed Sept. 12, 2006); Jenkins v. Sheriff's Dep't, 07–
CV–0939 (N.D.N.Y. filed Sept. 11, 2007); Jenkins
v. Onondaga Cnty. Sheriff's Dept., 12–CV–0855
(N.D.N.Y filed May 23, 2012).
Jenkins v. Sheriff's Dep't, 07–CV–0939, Decision
and Order at 3 (N.D.N.Y. filed Oct. 2, 2007)
(Hurd, J.); Jenkins v. Sheriff's Dep't, 07–CV–0939,
Decision and Order at 2 (N.D.N.Y. filed Nov.
21, 2007) (Hurd, J.); Jenkins v. Onondaga Cnty.
Sheriff's Dept., 12–CV0855, Decision and Order, at
4–5 (N.D.N.Y filed May 24, 2012) (Baxter, M.J.);
Jenkins v. Onondaga Cnty. Sheriff's Dept., 12–CV–
0855, Report–Recommendation, at 5–6 (N.D.N.Y
filed June 28, 2012) (Baxter, M.J.); see also, supra,
Part III.B.4. of this Decision and Order.

Finally, Plaintiff has repeatedly had to be ordered to comply
with the Local Rules, and reminded that all factual allegations
should be contained in the complaint itself, that paragraphs
ought to be numbered, and that the individuals she alleges
violated her rights must be identified. See, e.g., Jenkins
v. Dep't Corr. Servs., 06–CV–0621, Decision and Order
(N.D.N.Y. filed July 5, 2006) (Kahn, J.); Jenkins v. Onondaga
Sheriff's Dep't, 06–CV–1092, Order (N.D.N.Y. filed Oct. 6,
2006) (McAvoy, J.).
*14 Under such circumstances, a federal district court may
impose reasonable filing restrictions on a pro se litigant in
that particular court, pursuant to 28 U.S.C. § 1651(a) and
its inherent authority to control and manage its own docket

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13

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2012 WL 4052286

so as to prevent abuse in its proceedings. For example, a
federal district court may, after providing an appropriate
opportunity to be heard, prohibit a vexatious litigant from
filing, in that particular court, any action pro se (that is,
without counsel), without prior leave of that court. See Hong
Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir.2005) (“If a litigant
has a history of filing vexatious, harassing or duplicative
lawsuits, courts may impose sanctions, including restrictions
on future access to the judicial system.”) [internal quotations
and citations omitted]; In re Sassower, 20 F.3d 42, 44 (2d
Cir.1994) (where a pro se plaintiff has demonstrated a “clear
pattern of abusing the litigation process by filing vexatious
and frivolous complaints,” a “leave to file” requirement
may be instituted by the court as an appropriate sanction);
Moates v. Barkley, 147 F.3d 207, 208 (2d Cir.1998) ( “[T]he
district court may not impose a filing injunction on a litigant
sua sponte without providing the litigant with notice and
an opportunity to be heard.”); Azubuko v. Unknown Boston
Police Officers, 08–CV–0330, 2008 WL 1767067, at * 1
(N.D.N.Y. Apr.16, 2008) (McCurn, J.).
For all of these reasons, this case is forwarded to Chief United
States District Judge Gary L. Sharpe with a recommendation
that an Anti–Filing Injunction Order be issued against
Plaintiff.
ACCORDINGLY, it is
ORDERED that Defendants' motion to dismiss (Dkt. No. 13)
is GRANTED in part and DENIED in part; and it is further
End of Document

ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
conditionally DISMISSED; and it is further
ORDERED that Plaintiff is permitted to file an Amended
Complaint within THIRTY (30) DAYS of the filing date of
this Order; and it is further
ORDERED that, if Plaintiff fails to timely file an Amended
Complaint, the Clerk shall enter judgment dismissing this
action without further Order of this Court; and it is further
ORDERED that, upon filing of the Amended Complaint, this
file in this matter be returned to the Court for further review;
and it is further
ORDERED that the Clerk of the Court is directed to forward
this case to Chief United States District Judge Gary L.
Sharpe with the recommendation of the undersigned that an
AntiFiling Injunction Order be issued against Plaintiff.
The Court hereby certifies, for purposes of 28 U.S.C. §
1915(a) (3), that any appeal taken from the Court's final
judgment in this action would not be taken in good faith.
All Citations
Not Reported in F.Supp.2d, 2012 WL 4052286

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© 2023 Thomson Reuters. No claim to original U.S. Government Works.

14

Hatcher v. City of New York, Not Reported in Fed. Supp. (2018)
2018 WL 1583036

2018 WL 1583036
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Dominique HATCHER, Plaintiff,
v.
The CITY OF NEW YORK, a municipal entity;
and New York City Police Officers Jesus Capo,
John Paul Pennacchia (Shield #9573), and John
Doe, in their individual capacities, Defendants.
15-CV-7500 (VSB)
|
Signed 03/27/2018

battery, Defendants' motion to dismiss as to those claims is
also GRANTED. Because I find that Plaintiff has plausibly
alleged a violation of her Fourth Amendment rights and
related damages with respect to her unlawful search and
seizure claims, Defendants' motion to dismiss Plaintiff's
unlawful search and seizure claims is DENIED. Further,
Defendants' motion to dismiss Plaintiff's claims against the
City is DENIED only with respect to the claim against the
City arising out of Plaintiff's state law claims of unlawful
search and seizure. All other claims against the City are
dismissed.
I. Background 1
1

Attorneys and Law Firms
Luna Droubi, Beldock Levine & Hoffman LLP, New York,
New York, Counsel for Plaintiff
Alan Howard Scheiner, Cheryl Leah Shammas, New York
City Law Department, New York, New York, Counsel for
Defendants

OPINION & ORDER
Vernon S. Broderick, United States District Judge
*1 Plaintiff Dominique Hatcher brings this action under 42
U.S.C. § 1983, alleging claims for unreasonable search and
seizure, false arrest and false imprisonment, and malicious
prosecution in violation of her Fourth and Fourteenth
Amendment rights, as well as numerous state law claims.
Before me is the motion of the City of New York (the “City”),
Police Officer Jesus Capo, and Police Officer Johnpaul
Pennacchia (together with the City, “Defendants”), to dismiss
all of the causes of action in Plaintiff's Complaint under
Federal Rule of Civil Procedure 12(b)(6).
For the reasons that follow, Defendants' motion to dismiss is
GRANTED IN PART and DENIED IN PART. Specifically,
because I find that the officers had arguable probable cause
and are thus entitled to qualified immunity as to Plaintiff's
false arrest, false imprisonment and malicious prosecution
claims under both state and federal law, Defendants' motion
to dismiss as to these claims is GRANTED. Further, because
I find that Plaintiff has not plausibly alleged claims for state
law intentional infliction of emotional distress or assault and

The following factual summary is drawn from
the allegations of the Complaint, unless otherwise
indicated, which I assume to be true for purposes of
this motion. See Kassner v. 2nd Ave. Delicatessen
Inc., 496 F.3d 229, 237 (2d Cir. 2007). My
references to these allegations should not be
construed as a finding as to their veracity, and I
make no such findings.

Plaintiff alleges that on July 4, 2014, after spending time at
her mother's house in Harlem, New York, she walked from her
mother's home to her car with her two-year-old stepdaughter
and fifteen-year-old nephew. (Compl. ¶¶ 14–15.) 2 Plaintiff
put a tray of food in the backseat of her car and, around the
same time, noticed an unmarked police car pass by slowly.
(Id. ¶¶ 15–16.) After placing the tray of food in the back
seat of her car, Plaintiff took her stepdaughter and nephew
to a local store to buy a toy, stopped briefly along the way
to speak with an old neighborhood friend, purchased the toy
at the store, and walked back to her car. (Id. ¶¶ 17–19.) As
she was walking back to her car, Capo, Pennacchia, and Doe
(the “Officers”) jumped out of the unmarked police car and
Capo “aggressively shoved [Plaintiff] against the gate, pushed
her arms behind her back, and handcuffed her.” (Id. ¶¶ 20–
21.) Plaintiff's mother arrived at the location and attempted
to reason with the Officers. (Id. ¶ 22.) The Officers refused
to provide Plaintiff's mother with any information about
Plaintiff's arrest. (Id. ¶ 23.)
2

“Compl.” refers to the Complaint filed in this action
on September 22, 2015. (Doc. 1.)

*2 Capo noticed that the car doors of Plaintiff's car were
locked, searched Plaintiff, took her car keys, and opened both
the doors and trunk to her car. (Id. ¶ 24.) Capo, Pennacchia,
and Doe then searched Plaintiff's car, including containers

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and bags located in the car and the trunk. The Officers
found a black garbage bag in Plaintiff's trunk that contained
a box of fireworks purchased in North Carolina. (Id. ¶¶
25–26.) A second police car arrived, and the Officers put
Plaintiff in the backseat of the second police car and took
her to the police precinct, where she was fingerprinted and
searched. (Id. ¶¶ 27–28.) After spending approximately three
hours at the police precinct, Plaintiff was given a Desk
Appearance Ticket, and was told she could leave. (Id. ¶ 29.)
Pennacchia thereafter signed a criminal complaint charging
Plaintiff with violating New York Penal Law § 270.00(2)
3

(b)(i) for unlawfully dealing in fireworks. (Id. ¶¶ 2, 30.)
After Plaintiff made three court appearances, the charges were
dismissed on December 14, 2014. (Id. ¶ 31.)
3

New York Penal Law § 270.00 was amended
effective December 20, 2014, and again effective
January 21, 2018. See 2014 N.Y. Sess. Laws
Ch. 477 (S. 7888); 2017 N.Y. Sess. Laws Ch.
371 (S. 724-A). The relevant provision, which is
substantially the same, is now New York Penal
Law § 270.00(2)(a)(iii), which states that “[e]xcept
as herein otherwise provided, or except where
a permit is obtained ... any person who shall
possess ... any fireworks or dangerous fireworks
is guilty of a violation.” Because Plaintiff was
arrested in July 2014, I will reference the pre-2014
version of New York Penal Law § 270.00 for the
purpose of this Opinion and Order.

On October 1, 2014, Plaintiff served a notice of claim on the
City of New York (the “Notice of Claim”). (Id. ¶ 33.) Plaintiff
then attended a hearing under section 50-h of the New York
General Municipal Law on March 10, 2015. (Id. ¶ 34.) The
City did not offer an adjustment or payment for her claim. (Id.
¶ 35.)
II. Procedural History
On September 22, 2015, Plaintiff filed the Complaint,
alleging causes of action under § 1983 for unreasonable
search and seizure, false arrest and false imprisonment,
and malicious prosecution all in violation of her Fourth
and Fourteenth Amendment rights, and numerous state law
claims. (See id. ¶¶ 36–57.) On January 20, 2016, Defendants
filed a pre-motion letter in anticipation of filing a motion to
dismiss, (Doc. 17), to which Plaintiff responded on January
22, 2016, (Doc. 18). I held a pre-motion conference on
Defendants' anticipated motion on February 25, 2016. (See
Dkt. Entry Feb. 25, 2016.)

In accordance with the deadlines set during that conference,
Defendants submitted their motion to dismiss on March 24,
2016. (Docs. 22–24.) Plaintiff filed her opposition on May 5,
2016, (Doc. 27), and on May 19, 2015, Defendants filed their
reply, (Doc. 29).
III. Legal Standards
A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’
” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
will have “facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Id. This standard demands “more than a sheer possibility
that a defendant has acted unlawfully.” Id. “Plausibility ...
depends on a host of considerations: the full factual picture
presented by the complaint, the particular cause of action and
its elements, and the existence of alternative explanations so
obvious that they render plaintiff's inferences unreasonable.”
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d
Cir. 2011).
In considering a motion to dismiss, a court must accept as true
all well-pleaded facts alleged in the complaint and must draw
all reasonable inferences in the plaintiff's favor. See Kassner,
496 F.3d at 237. A complaint need not make “detailed factual
allegations,” but it must contain more than mere “labels and
conclusions” or “a formulaic recitation of the elements of a
cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable
to legal conclusions.” Id.

B. Section 1983
*3 Section 1983 provides a civil claim for damages against
“[e]very person who, under color of any statute ... of any
State ... subjects, or causes to be subjected, any citizen ...
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws....” 42 U.S.C. § 1983.
In other words, “[t]o state a claim under § 1983, a plaintiff

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must allege that defendants violated plaintiff's federal rights
while acting under color of state law.” McGugan v. AldanaBernier, 752 F.3d 224, 229 (2d Cir. 2014), cert. denied, 135 S.
Ct. 1703 (2015). Further, “in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff
must show ... the defendant's personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013).
IV. Discussion
A. False Arrest and False Imprisonment
Defendants argue with respect to Plaintiff's claims for false
arrest and false imprisonment that the Officers had probable
4

cause to arrest Plaintiff. (Defs.' Mem. 2.) In the alternative,
Defendants argue that the Officers are entitled to qualified
immunity. (See id. at 11–15.) Because I find that, in light of
the facts known to the Officers at the time of the arrest, an
officer of reasonable competence could have concluded that
the arrest was justified by probable cause, thus entitling the
Officers to qualified immunity, I grant Defendants' motion to
dismiss as to Plaintiff's state and federal claims for false arrest
and false imprisonment.
4

“Defs.' Mem.” refers to Defendants' Memorandum
of Law in Support of Their Motion to Dismiss the
Complaint in its Entirety Pursuant to Fed. R. Civ.
P. 12(b)(6), filed March 24, 2016. (Doc. 24.)

1. Applicable Law
A § 1983 claim for false arrest that is alleged to have
occurred in New York is “substantially the same as a claim
for false arrest under New York law.” Gonzalez v. City of
Schenectady, 728 F.3d 149, 155 (2d Cir. 2013). Further,
“[u]nder New York law, false arrest and false imprisonment
are one and the same, and the elements for both are the
same as for a false arrest claim under § 1983.” Hershey v.
Goldstein, 938 F. Supp. 2d 491, 515 (S.D.N.Y. 2013). Under
federal and state law, a plaintiff bringing a false arrest and/
or false imprisonment claim must demonstrate that “(1) the
defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not
consent to the confinement and (4) the confinement was not
otherwise privileged.” Singer v. Fulton Cty. Sheriff, 63 F.3d

110, 118 (2d Cir. 1995) (citation omitted); see also Hershey,
938 F. Supp. 2d at 515.
“[T]he existence of probable cause is an absolute defense
to a false arrest claim.” Jaegly v. Couch, 439 F.3d 149, 152
(2d Cir. 2006); see also Higginbotham v. City of New York,
105 F. Supp. 3d 369, 373 (S.D.N.Y. 2015) (citing Stansbury
v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013)). Probable
cause exists when an officer “has ‘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.’ ” Jaegly, 439 F.3d at 152 (quoting
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
For federal false arrest claims, even in circumstances where a
preceding search is illegal, police officers may use evidence
obtained in that illegal search to establish probable cause
for an arrest. See Townes v. City of New York, 176 F.3d
138, 144–49 (2d Cir. 1999) (“The fruit of the poisonous tree
doctrine ... is inapplicable to civil § 1983 actions.”). There is
some dispute, however, as to whether this principle applies
when the underlying claim is a state, rather than federal,
false arrest claim. Compare Ostrover v. City of New York,
600 N.Y.S.2d 243, 244–35 (1st Dep't 1993) (finding that
the “fruit of an illegal search cannot give rise, in a juristic
sense, to probable cause to arrest”), Fakoya v. City of New
York, 982 N.Y.S.2d 335, 336 (2d Dep't 2014) (“Evidence
which is illegally obtained in violation of a plaintiff's rights
may not be used to establish probable cause.”), and Tetreault
v. New York, 485 N.Y.S.2d 864, 865–66 (3d Dep't 1985)
(holding that plaintiff's arrest was without justification where
troopers' observation of drug capsules in plaintiff's car was
the result of an unlawful traffic stop), with Martinez v. City
of Schenectady, 735 N.Y.S.2d 868, 872–73 (2001) (holding
that “[t]he existence of probable cause serves as a legal
justification for the arrest and an affirmative defense to the
claim” even where part of the evidence establishing probable
cause was suppressed due to the illegality of the search
yielding that evidence).
*4 Although there is some ambiguity as to whether New
York courts apply the same reasoning as Townes, qualified
immunity protects an officer “so long as he had ‘arguable
probable cause’ to arrest, which ‘exists if either (a) it was
objectively reasonable for the officer to believe that probable
cause existed, or (b) officers of reasonable competence could
disagree on whether the probable cause test was met.’ ”
Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016) (quoting

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Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)). In other
words, arguable probable cause may be established where, “in
light of the facts known to police at the time of [the plaintiff's]
arrest, an officer of reasonable competence could have
concluded that the arrest was justified by probable cause.”
Figueroa v. Mazza, 825 F.3d 90, 99 (2d Cir. 2016) (internal
quotation marks omitted); see also Cabral v. City of New
York, 662 Fed.Appx. 11, 13 (2d Cir. 2016) (summary order)
(finding that officers were entitled to qualified immunity for
a state false arrest claim even though it was uncertain, under
New York case law, whether evidence obtained through an
unlawful search could be considered as probable cause for
an arrest). Thus, even where evidence establishing probable
cause is suppressed or found to be obtained pursuant to
an unlawful search, such evidence may nonetheless provide
“the reasonable basis necessary for qualified immunity” for
a plaintiff's state false arrest claim. Cabral, 662 Fed.Appx.
at 13 (internal quotation marks omitted); see also Gonzalez,
728 F.3d at 158 & n.4 (disposing of plaintiff's state false
imprisonment claim where officers had arguable probable
cause to arrest because “New York law grants government
officials qualified immunity on state-law claims except where
the officials' actions are undertaken in bad faith or without
a reasonable basis” (internal quotation marks omitted)).
Further, qualified immunity can be established at the pleading
stage. See Garcia v. Does, 779 F.3d 84, 97 (2d Cir. 2015)
(“The Supreme Court has made clear that qualified immunity
can be established by the facts alleged in a complaint.”).

2. Application
Defendants claim that Plaintiff's arrest for possession of
fireworks in violation of New York Penal Law § 270.00(2)(b)
(i) was preceded by the Officers finding a box of fireworks in
the trunk of Plaintiff's car, and therefore there was probable
cause to arrest Plaintiff. (Defs.' Mem. 2.) They then argue
that to the extent Plaintiff posits the argument that the search
of Plaintiff and her car were illegal thereby vitiating her
arrest under the “fruit of the poisonous tree” doctrine, such
an argument must be rejected pursuant to the Second Circuit's
decision in Townes v. City of New York, 176 F.3d 138 (2d
Cir. 1999). (See Defs.' Mem. 3–4.) Defendants also cite to
Martinez v. City of Schenectady, 735 N.Y.S.2d 868 (2001),
to support their assertions. 5 (See id. at 23.) While Plaintiff
concedes that Townes bars her federal false arrest claim
under § 1983, she argues that Townes does not apply to her
state false arrest claim, citing to a number of state court
decisions electing not to apply the reasoning in Townes, such

as Ostrover v. City of New York, 600 N.Y.S.2d 243 (1st Dep't
1993). (Pl.'s Opp. 4 n.2, 22–23.) 6
5

To be certain, the New York Court of Appeals in
Martinez addressed a markedly different scenario,
both because probable cause was supported by
reasons apart from the suppressed evidence, and
because the plaintiff had the chance to challenge
the inclusion of the evidence at the prior criminal
proceeding. See Martinez, 735 N.Y.S.2d at 872–73.

6

“Pl.'s Opp.” refers to Plaintiff's Memorandum
of Law in Opposition to Defendants' Motion to
Dismiss Plaintiff's Complaint Pursuant to Fed. R.
Civ. P. 12(b)(6), filed May 5, 2016. (Doc. 27.)

Although, as I acknowledged above, New York courts have
issued seemingly conflicting holdings with respect to this
issue, I find that the Officers had at least arguable probable
cause to arrest Plaintiff, and are thus entitled to qualified
immunity for Plaintiff's state false arrest claim. The Officers
noticed that the car doors of Plaintiff's car were locked, took
Plaintiff's car keys, and searched Plaintiff's car, finding a
black garbage bag in Plaintiff's trunk that contained a box
of fireworks. (Compl. ¶¶ 24–26.) New York Penal Law §
270.00(2)(b)(i) stated that “any person who shall possess ...
any fireworks or dangerous fireworks is guilty of a violation.”
Therefore, in light of the facts known to the Officers at the
time of Plaintiff's arrest and drawing all reasonable inferences
in Plaintiff's favor, “an officer of reasonable competence
could have concluded that the arrest was justified by probable
cause.” Figueroa, 825 F.3d at 99 (internal quotation marks
omitted); see also Cabral, 662 Fed.Appx. at 13 (“Whatever
ambiguity may exist as to Martinez’s adoption of Townes’s
reasoning, the existence of such a decision by New York's
highest court would afford at least the reasonable basis
necessary for qualified immunity with regard to the state
claim against [the officer].” (citation and internal quotation
marks omitted)). Because the Officers had, at minimum,
arguable probable cause to arrest Plaintiff for possession
of fireworks, they are entitled to qualified immunity as to
Plaintiff's state false arrest claim.
*5 Thus, Defendants' motion to dismiss as to Plaintiff's
state false arrest and false imprisonment claims is granted,
and these claims are dismissed with prejudice. As noted
above, Plaintiff acknowledges that she “does not assert a false
arrest claim under [§] 1983 based on the discovery of the
fireworks.” (Pl.'s Opp. 4 n.2.) To be clear, to the extent that
Plaintiff asserts any federal false arrest claims, Defendants'

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motion to dismiss is also granted as to these claims, see
Townes, 176 F.3d at 144–49, and Plaintiff's federal false arrest
claims pursuant to § 1983 are also dismissed.

B. Malicious Prosecution
Defendants also argue that I should dismiss Plaintiff's claim
for malicious prosecution for three reasons: there was
probable cause to commence the proceeding; Plaintiff has
not shown a sufficient post-arraignment liberty restraint to
implicate her Fourth Amendment rights; and Plaintiff has not
shown that the proceeding terminated in her favor. (See Defs.'
Mem. 5–11.) Because I find that the Officers had arguable
probable cause and are entitled to qualified immunity as to the
malicious prosecution claim as well, Defendants' motion to
dismiss this claim under both state and federal law is granted.

1. Applicable Law
To state a malicious prosecution claim under § 1983, a
plaintiff must allege the elements of a state-law malicious
prosecution claim. See Fulton v. Robinson, 289 F.3d 188,
195 (2d Cir. 2002). The elements of malicious prosecution
are: (1) the initiation of a prosecution against a plaintiff; (2)
without probable cause; (3) the proceedings were begun with
malice; and (4) the matter terminated in plaintiff's favor. See
O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir. 1996).
In addition, in actions brought under § 1983, a plaintiff must
also have suffered a sufficient post-arraignment deprivation
of liberty implicating his Fourth Amendment rights. See Jocks
v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003); Rohman v.
N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000).
As with claims for false arrest brought under § 1983, “[t]he
existence of probable cause is a complete defense to a claim
of malicious prosecution in New York.” Manganiello v. City
of New York, 612 F.3d 149, 161–62 (2d Cir. 2010) (quoting
Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)).
However, “[p]robable cause to arrest differs from probable
cause to prosecute because the evidentiary standard is higher
for the latter than for the former.” Hoyos v. City of New York,
650 Fed.Appx. 801, 802 (2d Cir. 2016) (summary order).
“Probable cause, in the context of malicious prosecution,
has also been described as such facts and circumstances
as would lead a reasonably prudent person to believe the
plaintiff guilty.” Stansbury, 721 F.3d at 95 (quoting Boyd
v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003)).

Further, even in the absence of probable cause, an officer
is entitled to qualified immunity where there is arguable
probable cause to arrest. See Betts v. Shearman, 751 F.3d 78,
83 (2d Cir. 2014) (“Plaintiff's false arrest, false imprisonment,
and malicious prosecution claims therefore turn on whether
the defendant officers' probable cause determination was
objectively reasonable—that is, whether there was arguable
probable cause to arrest.” (internal quotation marks omitted)).

2. Application
Here, Defendants claim that probable cause existed to
prosecute Plaintiff for possession of fireworks under New
York Penal Law § 270.00(2)(b)(i) because the Officers found
fireworks in the trunk of Plaintiff's car. (Defs.' Mem. 5–7.) As
noted above, New York Penal Law § 270.00(2)(b)(i) stated
in relevant part that “any person who shall possess ... any
fireworks or dangerous fireworks is guilty of a violation.” I
find that, accepting Plaintiff's allegations in the Complaint
as true and drawing all inferences in Plaintiff's favor, the
Officers had, at a minimum, arguable probable cause to arrest
Plaintiff. Although Plaintiff claims that she legally purchased
the fireworks in North Carolina, (Compl. ¶ 26), and it is
plausible to infer that at or around the time of her arrest she
explained this to the Officers prior to Pennacchia signing
the criminal complaint, this does not erase the existence of
arguable probable cause to arrest Plaintiff for possessing
fireworks. See Cabral v. City of New York, No. 12 Civ.
4659(LGS), 2014 WL 4636433, at *8 (S.D.N.Y. Sept. 17,
2014) (“Here, there is no dispute that Defendant Thompson
discovered marijuana in Plaintiff's vehicle and that Plaintiff
acknowledged it belonged to him. That discovery provides the
requisite probable cause underlying the criminal prosecution
of Plaintiff, defeating any malicious prosecution claim by
Plaintiff against Defendants under state or federal law.”),
aff'd, 662 Fed.Appx. 11 (2d Cir. 2016) (summary order).
*6 Plaintiff also argues that the Officers lacked probable
cause to prosecute her because the evidence upon which they
based the criminal complaint was gathered pursuant to an
unlawful search and thus would have been inadmissible to
prove guilt of the alleged crime. (See Pl.'s Opp. 7–10.) In
addressing this point, Defendants again point to the Second
Circuit's decision in Townes and its progeny in support of the
proposition that the “fruit of the poisonous tree doctrine ...
is inapplicable to civil § 1983 actions.” Townes, 176 F.3d at
145. As an initial matter, Defendants need only establish that
the Officers had arguable probable cause to demonstrate that

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the Officers are entitled to qualified immunity. See Betts, 751
F.3d at 83. Moreover, although Plaintiff cites another Second
Circuit decision, Boyd v. City of New York, 336 F.3d 72 (2d
Cir. 2003), in support of her conclusion that the exclusionary
rule does apply in malicious prosecution cases, (see Pl.'s
Mem. 8–9), Boyd does not apply to this case. In a recent
decision the Second Circuit clarified the holding in Boyd,
stating that:

Boyd did not hold that inadmissible
evidence cannot be used in evaluating
probable cause for a prosecution, but
only that where the sole evidence of a
defendant's guilt is a single statement
that police would have understood at
the time could not be used in a criminal
case (a circumstance largely limited to
the facts of Boyd itself) such evidence
is not alone sufficient to defeat a
malicious prosecution claim.

Restivo v. Hessemann, 846 F.3d 547, 570 (2d Cir. 2017)
(emphasizing that in Boyd, the only evidence tying Boyd to
the crime was an obviously inadmissible confession made
after the arrest); see also Cyrus v. City of New York, 450
Fed.Appx. 24, 26 (2d Cir. 2011) (summary order) (affirming
district court's decision to grant summary judgment to the
defendant and refusing to apply the exclusionary rule to find
that defendant lacked probable cause to prosecute plaintiff
for criminal possession of a weapon, even assuming that the
weapon was found pursuant to an unlawful arrest). I decline
to extend Boyd to this case and therefore grant Defendants'
motion to dismiss both the state and federal claims for
malicious prosecution.
In a footnote, Plaintiff further “requests leave to amplify
the allegations that support her malicious prosecution
claim.” (Pl.'s Opp. 10 n.5.) I interpret this statement to
be a request to amend the Complaint. Defendants oppose
this request. (Defs.' Reply 3 n.2.) 7 Given that Plaintiff has
acknowledged that the fireworks were her property, and does
not dispute Defendants' characterization of her failure to
allege that she had a permit, (see Defs.' Mem. 2; see generally
Pl.'s Opp.), Plaintiff's request to “amplify the allegations”
is denied since I find that any amendment of this cause
of action would be futile. In addition, I provided Plaintiff
with multiple opportunities to amend, and warned Plaintiff

at the pre-motion conference on February 25, 2016 that I
would scrutinize any requests for leave to amend thoroughly
if the request was made after a motion to dismiss was fully
briefed. (PMC Tr. 10:17–12:1.) 8 Plaintiff has not set forth
any justification for not “amplify[ing] the allegations” related
to this cause of action by filing an amended complaint after
the filing of the motion to dismiss.
7

“Defs.' Reply” refers to Defendants' Reply
Memorandum of Law in Further Support of Their
Motion to Dismiss the Complaint in its Entirety
Pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 29.)

8

“PMC Tr.” refers to the Transcript of the PreMotion Conference held before me on February 25,
2016 at 11:30 a.m.

C. Unlawful Search and Seizure 9
9

Plaintiff did not reference the seizure of the
fireworks found in her car as part of any of
her causes of action. (See Compl. ¶ 32 (claiming
as financial losses only “loss of income”).) In
fact, even in her opposition, Plaintiff charges
Defendants with failing to move to dismiss her
claims “based on the unlawful stop, search of her
person, or search of her car,” not any seizure of
physical property related to those searches. (See
Pl.'s Opp. at 4–7.) To the extent that Plaintiff does
wish to state such a claim, I find that her Complaint
has failed to do so. See Cabral, 2014 WL 4636433,
at *9 (holding that the seizure of a vehicle and cash
was justified by the discovery of contraband).

*7 Defendants also move to dismiss Plaintiff's unlawful
search and seizure claim on the grounds that (1) Plaintiff
has not pled a prima facie case for an unreasonable stop,
and (2) Plaintiff has not alleged any compensable injury.
(Defs.' Mem. 18–20.) Because I find that the allegations
in the Complaint plausibly allege a violation of Plaintiff's
Fourth Amendment rights and a claim for related damages,
Defendants' motion to dismiss Plaintiff's unlawful search and
seizure claim is denied.

1. Applicable Law

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In analyzing a claim for unlawful search and seizure under
the Fourth Amendment, courts look to the reasonableness
of the search when determining whether a search violated a
plaintiff's constitutional rights. See Terry v. Ohio, 392 U.S.1,
9 (1968) (“[T]he Constitution forbids ... not all searches and
seizures, but unreasonable searches and seizures” (quoting
Elkins v. United States, 364 U.S. 206, 222 (1960))).
Additionally, the Supreme Court has “consistently accorded
law enforcement officials greater latitude in exercising their
duties in public places.” Florida v. White, 526 U.S. 559, 565
(1999).
Because unlawful search and seizure actions brought pursuant
to § 1983 are “analogous to state common law tort actions”
and “serv[e] primarily the tort objective of compensation,” a
plaintiff bringing a § 1983 claim must establish “proximate
causation.” Townes, 176 F.3d at 146. Further, “[t]he goal
of ...§ 1983 jurisprudence has been to tailor liability to fit
the interests protected by the particular constitutional right
in question,” and thus “damages should be made available
only for risks that are constitutionally relevant.” Id. (internal
quotation marks omitted).

2. Application
In moving to dismiss Plaintiff's claims of unlawful search
and seizure, Defendants do not make any attempt to assert a
substantive legal challenge to Plaintiff's allegations that she
was subject to an unreasonable stop, frisk, and search, but
instead focus their argument on a purported failure to plead
any compensable injury. (See Defs.' Mem. 18–20 (stating
merely that “[e]ven assuming plaintiff has pled a prima facie
case for an unreasonable stop—which she has not—she has
not alleged any actual, compensable injury”); Defs.' Reply
7 n.8 (opposing Plaintiff's argument that Defendants did not
move to dismiss this cause of action by citing to pages 18–
20 of their moving brief and also citing to their preliminary
statement, which argued only that the “stop claims must
also be dismissed because it fails the Iqbal/Twombly test
of plausibility, or at most, should be limited to nominal
damages not exceeding one dollar”).) With respect to the first
part of Plaintiff's claim—pleading a violation of her Fourth
Amendment rights—Defendants' failure to raise any legal
deficiencies with regard to the allegations in the Complaint is
consistent with my analysis and conclusion that Plaintiff has
satisfactorily alleged a violation of her Fourth Amendment
rights.

Further, regarding Defendants' assertion that Plaintiff failed
to allege damages suffered as a result of the actual stop and
search, I find the allegations in the Complaint sufficient to
survive Defendants' motion to dismiss. By way of relief,
Plaintiff seeks “(i) compensatory damages for psychological
and emotional distress, and financial loss caused by the
illegal actions of the Defendants; (ii) punitive damages to
deter such intentional or reckless deviations from wellsettled constitutional law; and (iii) such other and further
relief.” (Compl. ¶ 3.) Plaintiff does not ascribe her injury
to any particular conduct by Defendants, but rather states
more generally that the deprivation of her constitutional
and other rights caused the damages for which she claims
compensation. (See id. ¶ 32 (“Defendants' conduct caused
Plaintiff to suffer loss of liberty, loss of income, emotional
and psychological pain, embarrassment, humiliation, and
harm to her reputation.”); id. ¶ 38 (“As a direct and
proximate result of being deprived of these constitutional
rights, Plaintiff suffered the injuries and damages set forth
above.”).) In her opposition, Plaintiff further attributes the
“psychological pain, embarrassment, humiliation, and harm
to her reputation” to Defendants' actions, “including the
illegal stop and search” in front of her mother, stepdaughter,
and nephew. (Pl.'s Opp. 16–18.)
*8 In evaluating Defendants' argument, I find the case
Hayes v. Perotta, 751 F. Supp. 2d 597 (S.D.N.Y. 2010), to be
instructive. The damages allegations in Hayes are analogous
to Plaintiff's allegations in the Complaint. As in Hayes,
some of the injuries that Plaintiff allegedly suffered from the
unlawful search are indirect and arguably far removed from
the alleged unlawful search. Id. at 598–99 (stating plaintiff's
alleged injuries included “loss of liberty” as a result of officers
unlawful search); (see also Compl. ¶ 32 (claiming Plaintiff
suffered “loss of liberty” and “loss of income”).) Additionally,
like the plaintiff in Hayes, Plaintiff refers to “a number of
injuries for which it is unclear whether they were caused by
the [arrest and prosecution] or the search itself.” Hayes, 751
F. Supp. 2d at 599. Furthermore, the Court in Hayes still
found that under Townes, “recovery for injuries that directly
result from an unlawful search is permissible.” Hayes, 751 F.
Supp. 2d at 603; see also Gannon v. City of New York, 917 F.
Supp. 2d 241, 244 (S.D.N.Y. 2013) (“I note that under Townes,
damages related to the initial search and seizure would be
possible.” (internal quotation marks omitted)). As a result, a
plaintiff may “attempt to recover damages from the loss of
privacy and/or property from the search.” Hayes, 751 F. Supp.
2d at 604.

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This is similar to Plaintiff's allegations in this case. (See
Compl. ¶ 32 (alleging “emotional and psychological pain,
embarrassment, humiliation, and harm to her reputation”); id.
¶ 3 (alleging “psychological and emotional distress”).) Given
that the Complaint “alleges damage to [her] ... mental health[ ]
and interpersonal relationships,” Hayes, 751 F. Supp. 2d at
605, to the extent those injuries were caused by the search
itself, she has stated a claim for relief under both federal
and state law, see Bancroft v. City of Mount Vernon, 672 F.
Supp. 2d 391, 401 n.4 (S.D.N.Y. 2009) (“The standard for
what constitutes a constitutionally reasonable search is the
same under federal and New York State law.”). 10 Since I
find that the allegations in the Complaint plausibly allege a
violation of Plaintiff's Fourth Amendment rights and a claim
for related damages, I deny Defendants' motion to dismiss
Plaintiff's claims of unlawful search and seizure.
10

Defendants also argue that, because Plaintiff
“failed to produce any medical releases pursuant
to Rule 83.10(1) of the Local Civil Rules for the
Southern and Eastern Districts,” she has waived
her right to recover for physical or psychological
injury. (Defs.' Mem. 18–19.) However, as Plaintiff
notes, Local Civil Rule 83.10 expressly states that
provision of a medical release is required only
for injuries “other than ‘garden variety’ emotional
distress.” (Pl.'s Opp. 18.) As a result, I do not
find that Local Civil Rule 83.10 precludes the
damages alleged by Plaintiff. See Kennedy v. Arias,
12 Civ. 4166 (KPF), 2017 WL 2895901, at *3
(S.D.N.Y. July 5, 2017) (finding in the context
of a plaintiff's § 1983 excessive force claim that
failure to produce medical records merely restricted
the plaintiff to seeking “garden variety emotional
distress damages” but did not completely preclude
recovery (internal quotation marks omitted)).

D. Plaintiff's Remaining State Law Claims
1. Supplemental Jurisdiction
In addition to her § 1983 claims and related state law
claims discussed above, Plaintiff alleges causes of action for
assault and battery and intentional infliction of emotional
distress (“IIED”). (Compl. ¶¶ 43–45, 52–54.) Defendants
move to dismiss Plaintiff's these state law claims on three
grounds: (1) that, assuming I dismiss all federal law claims, I
should decline to exercise supplemental jurisdiction; (2) that

Plaintiff's Notice of Claim to the City was defective under the
New York General Municipal Law; and (3) that Plaintiff fails
to state any claims. (Defs.' Mem. 20–25).
Since I have decided that certain of Plaintiff's federal law
claims survive, and otherwise find that the state law claims
are so related to the federal claims that they form part of the
same case or controversy under 28 U.S.C. § 1367, I reject
Defendants' jurisdictional argument.

2. Notice of Claim
*9 With regard to Plaintiff's Notice of Claim, Defendants'
argue that the notice is defective for two reasons: first, that
Plaintiff only named the City and not any individual officers
in the Notice of Claim, warranting dismissal of all state
law claims against the Officers under New York General
Municipal Law § 50-e, and second, that Plaintiff did not raise
a state law claim related to the unreasonable stop in the Notice
of Claim, barring this claim. (See Defs.' Mem. 21–23.)
With respect to the first argument, New York courts have
split on this question. Compare Goodwin v. Pretorius, 962
N.Y.S.2d 539, 541–42 (4th Dep't 2013) (holding that the
notice of claim statute does not require plaintiffs to name
individual defendants in the claim “as a condition precedent
to the commencement of an action against them”), with
Tannenbaum v. City of New York, 819 N.Y.S.2d 4, 5 (1st Dep't
2006) (“General Municipal Law § 50-e makes unauthorized
an action against individuals who have not been named
in a notice of claim, thus warranting dismissal of the
state claims against [the individual defendants].” (citation
omitted)), abrogated on other grounds by Kapon v. Koch, 988
N.Y.S.2d 559 (2014).
Many, if not the majority, of recent district court decisions in
the Southern District have found that the Fourth Department
applies the approach more likely to be accepted by the New
York Court of Appeals—that “failure to name individual
defendants in a notice of claim is not an independently
sufficient ground for dismissal.” Matthews v. City of New
York, No. 15-CV-2311 (ALC), 2016 WL 5793414, at *10 n.5
(S.D.N.Y. Sept. 30, 2016); see also Chamberlain v. City of
White Plains, 986 F. Supp. 2d 363, 396–97 (S.D.N.Y. 2013);
W.A. v. Hendrick Hudson Cent. Sch. Dist., No. 14-CV-8093
(KMK), 2016 WL 1274587, at *13 n.15 (S.D.N.Y. Mar. 31,
2016); Garnett v. City of New York, No. 13-cv-7083-GHW,
2014 WL 3950904, at *11 (S.D.N.Y. Aug. 13, 2014). This

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principle is based on the notion that “the primary inquiry
regarding a Notice of Claim ‘is not whether the individuals
were identified by name in the Notice of Claim, but whether
they were described sufficiently for the municipality to be
able to investigate the claim.’ ” Chamberlain, 986 F. Supp. 2d
at 397 (quoting Verponi v. City of New York, No. 16258/2004,
2011 WL 1991719, at *5 (N.Y. Sup. Ct. May 19, 2011)); see
also Brown v. City of New York, 718 N.Y.S.2d 4, 6 (2000)
(“The test of the sufficiency of a Notice of Claim is merely
whether it includes information sufficient to enable the city to
investigate.” (internal quotation marks omitted)).
I agree with these decisions, particularly in light of the fact
that in the instant case, the Notice of Claim presented enough
information to allow the City to properly investigate the
claim. (See Moulter Decl. 4–5); 11 see also Garnett, 2014 WL
3950904, at *11 (refusing to dismiss state law claims because
the notice of claim failed to identify individual defendants
was “particularly warranted where, as is the case here, the
Notice of Claim was sufficient to permit the defendant to
conduct a proper investigation and assess the merits of the
claim” (internal quotation marks omitted)). The Notice of
Claim clearly indicates individuals were involved in the
alleged violations—stating that Plaintiff's claims arose out of
“unlawful police conduct” and “excessive force by officers
of the New York City Police Department.” (Moulter Decl. 4.)
This is sufficient information to enable the city to investigate
the claim, see Chamberlain, 986 F. Supp. 2d at 397; Brown,
718 N.Y.S.2d at 6, and thus Defendants' first argument fails.
11

“Moulter Decl.” refers to the Declaration of Alex
Moulter submitted with Plaintiff's opposition, filed
May 5, 2016. (Doc. 27-1.) The page numbers of
the Declaration and attached exhibits do not have
page numbers, and thus I refer to the pages assigned
to it by the Court's Electronic Case Filing (“ECF”)
system.

*10 With respect to the second argument, I note that the
Notice of Claim referred to an “unlawful search of her person
and vehicle” and “unreasonable search and seizure,” (Moulter
Decl. 4–5), which I find was sufficient to put Defendants
on notice of the relevant theory of liability, cf. NieblasLove v. N.Y.C. Hous. Auth., 165 F. Supp. 3d 51, 76–
77 (S.D.N.Y. 2016) (dismissing negligent and intentional
infliction of emotional distress claims where the notice of
claim described the nature of the plaintiff's claim as “wrongful
termination,” “employment discrimination,” “negligency,”
and “harassment”). Therefore, I find the notice of claim is

sufficient to permit Plaintiff's filing of all of his state law
claims.

3. Sufficiency of the State Law Claims
Turning next to the sufficiency of Plaintiff's remaining state
law claims of intentional infliction of emotional distress and
assault and battery, Plaintiff has failed to state a claim with
regard to both of these claims. First, Plaintiff does not state
a claim for IIED because she does not plead “extreme and
outrageous conduct” as required to support a finding of IIED.
See Cabral, 2014 WL 4636433, at *12 (finding, where the
plaintiff was handcuffed because he was in the same car as
a suspect, arrested when the officers discovered marijuana
in the car, strip searched, and prosecuted, “no reasonable
juror could find that Defendants' actions were so outrageous
in character, and so extreme in degree, as to go beyond
all possible bounds of decency” (internal quotation marks
omitted)).
In addition, Plaintiff does not state a claim for assault and
battery because the only physical force she alleges—Capo
“aggressively shov[ing her] against the gate, push[ing] her
arms behind her back, and handcuff[ing] her,” (Compl. ¶
21)—is not the type of unreasonable and excessive force
justifying a claim for assault and battery, see Cabral, 2014
WL 4636433, at *10–11 (finding that the drawing of a
gun and handcuffing of the plaintiff, causing wrist pain,
was insufficient to survive summary judgment as to either
excessive force under § 1983 or assault and battery under
New York law); see also Chamberlain, 986 F. Supp. 2d
at 398–400 (dismissing certain assault and battery claims
for failure to state a claim because “[n]one of [the] actions
caused a reasonable apprehension of bodily injury that
[was] sufficiently imminent to constitute an assault” (internal
quotation marks omitted)); Espada v. Schneider, 522 F. Supp.
2d 544, 555 (S.D.N.Y. 2007) (finding that state assault and
battery claims are analyzed under the same standard as
excessive force claims, and that “not every push or shove” is
considered a violation because “officers may need to use some
degree of force in the course of an arrest” (quoting Maxwell
v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004))). As
a result, Defendants' motion to dismiss Plaintiff's claims for
state law IIED and assault and battery is granted.

E. Municipal Liability

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Lastly, Defendants argue that dismissal of all claims against
the City is warranted because, assuming I find that there are no
viable tort claims against the individual Defendants, there is
no basis for City liability under a respondeat superior theory.
(See Defs.' Mem. 25.)
First, I find that Defendants' argument applies, although
only to the underlying claims that I have already dismissed
—namely those for false arrest and false imprisonment,
malicious prosecution, IIED, and assault and battery.
Moreover, although Plaintiff's causes of action asserting the
right to be free from unreasonable searches and seizures
under both federal and state law remain, a respondeat superior
theory “cannot be the basis of municipal defendant liability
under [§] 1983,” and thus Plaintiff's municipal liability
claim pursuant to § 1983 is dismissed. Littlejohn v. City
of New York, 795 F.3d 297, 315 (2d Cir. 2015). Because,
however, the respondeat superior doctrine may be applied to
state constitutional tort claims, Plaintiff's municipal liability
claim arising from state constitutional violations for unlawful
search and seizure remains. See, e.g., Williams v. City of
New York, No. 14-cv-5123 (NRB), 2015 WL 4461716, at *6
(S.D.N.Y. July 21, 2015) (“The City can, however, be liable
on a respondeat superior theory with respect to claims arising
from state law, including the New York State Constitution
and common law.”). Accordingly, Plaintiff's claims against
the City are dismissed, except with regard to claims against
the City arising out of Plaintiff's state law claims of unlawful
search and seizure.
V. Conclusion
*11 For the foregoing reasons, Defendants' motion to
dismiss is GRANTED IN PART and DENIED IN PART.
End of Document

Because, considering the facts available at the time, the
Officers had arguable probable cause to defeat Plaintiff's
false arrest, false imprisonment, and malicious prosecution
claims under both state and federal law, Defendants' motion
to dismiss as to these claims is GRANTED. Furthermore,
because Plaintiff has not plausibly alleged claims for IIED
or assault and battery, Defendants' motion to dismiss those
claims is likewise GRANTED. With respect to the claims
against the City for municipal liability under respondeat
superior, Defendants' motion to dismiss is GRANTED as
to all claims arising out of the false arrest and false
imprisonment, malicious prosecution, IIED, and assault and
battery claims, as well as the § 1983 claim for false arrest
and false imprisonment. Defendants' motion to dismiss is
DENIED as to Plaintiff's unlawful search and seizure claim
under both state and federal law, as well as Plaintiff's claim
against the City arising out of state law unlawful search and
seizure.
Parties are directed to meet and confer regarding a proposed
date for Defendants to file their answer regarding the
remaining claims as well as a schedule for discovery. Parties
are directed to submit a joint letter addressing these issues,
as well as a proposed Case Management Plan and Scheduling
Order, on or before April 10, 2018. The Clerk of Court
is respectfully directed to terminate the open motion at
Document 22.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 1583036

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Serrano v. City of New York, Not Reported in Fed. Supp. (2018)
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2018 WL 3392869
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Steven SERRANO, Michael Serrano,
and Samuel Garcia, Plaintiffs,
v.
CITY OF NEW YORK, et al., Defendants.

and there was at least arguable probable cause to arrest,
search, and prosecute plaintiffs. For the reasons that follow,
the motion is granted in part and denied in part. The motion is
granted as to all claims asserted by plaintiff Steven Serrano,
and he shall be dismissed from the case. As to all claims raised
by plaintiffs Samuel Garcia and Michael Serrano, the motion
is denied.
1

16 Civ. 8105 (AKH)
|
Signed 07/11/2018
|
Filed 07/12/2018
Attorneys and Law Firms
David Bruce Rankin, Keith Michael Szczepanski, Beldock
Levine & Hoffman LLP, New York, NY, for Plaintiffs.
Kavin Suresh Thadani, New York City Law Department, New
York, NY, for Defendants.

OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
ALVIN K. HELLERSTEIN, United States District Judge
*1 This case concerns the allegedly unlawful arrest
and subsequent prosecution of three individuals outside a
Bronx apartment building. Plaintiffs Steven Serrano, Michael
Serrano, and Samuel Garcia (collectively, “Plaintiffs”)
filed this action on October 17, 2016. Broadly stated,
plaintiffs allege that they were falsely arrested as
part of an undercover drug operation conducted by
Defendants City of New York (“City”), Anthony DiSimone
(“DiSimone”), Thomas McHale (“McHale”), Undercover
Cop 0244 (“UC244”), and Undercover Cop 0114 (“UC114”)
(collectively “Defendants”). After amending the complaint
on September 8, 2017, and withdrawing certain claims
thereafter, 1 plaintiffs allege claims for false arrest, malicious
prosecution, unreasonable search and seizure, assault and
battery, and respondeat superior. Plaintiff Steven Serrano
separately maintains a claim for excessive force. Pre-trial
proceedings, including depositions, followed. Defendants
now move for summary judgment on all claims, principally on
the theory that the officers are entitled to qualified immunity

Plaintiffs have withdrawn all claims for negligent
hiring, training, and supervision under federal and
New York state law. Similarly, plaintiffs have
withdrawn their failure to intervene claims and all
claims brought under the Fourteenth Amendment.
Plaintiff Samuel Garcia also has withdrawn all his
state law claims. By not responding to defendants'
collective knowledge arguments, plaintiffs have
also abandoned their false arrest and malicious
prosecution claims against defendants McHale
and DiSimone. See Plahutnik v. Daikin Am.,
Inc., 912 F. Supp. 2d 96, 104 (S.D.N.Y. 2012)
(“[A]rguments not made in opposition to a motion
for summary judgment are deemed abandoned.”);
Senno v. Elmsford Union Free Sch. Dist., 812
F. Supp. 2d 454, 468 (S.D.N.Y. 2011) (“Plaintiff
did not address this argument in his opposition
papers, which operates as an abandonment of
the argument.”). Accordingly, these claims are
dismissed with prejudice.

Background
Much of the background leading to plaintiffs' arrests is
undisputed. But significant disputes of fact remain, and these
contested facts make summary judgment inappropriate as to
many of the claims asserted.
At approximately 2:00 p.m. on January 22, 2015, New
York City police officers were conducting a “buy and bust”
narcotics operation in the vicinity of 984 Bronx Park South
in the Bronx, New York. 2 Posing as a drug buyer during
the operation, UC114 solicited “JD White,” a nonparty to
this case, seeking to purchase heroin. After agreeing to the
sale, JD White left UC114 and approached “JD Red,” another
nonparty to this case who was also standing near 984 Bronx
Park South, and asked him to supply the heroin.
2

It appears that officers were investigating a
shooting at a nearby housing complex and

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2018 WL 3392869

were conducting the “buy and bust” operation
in an attempt to leverage potential cooperating
witnesses. See PL Rule 56.1 Statement, ECF 44, at
¶¶ 7–8.
*2 The parties agree that while this transaction was
developing, plaintiffs Steven Serrano and Samuel Garcia
were standing just outside the apartment building at 984
Bronx Park South, where Steven and his brother Michael
Serrano were living at the time. But the parties sharply dispute
plaintiffs' role in what followed. Plaintiffs contend that as
Steven left his apartment that afternoon, he ran into Samuel,
a former acquaintance, and struck up a conversation that
lasted approximately thirty minutes. As some point during
this time, plaintiffs claim that Michael Serrano arrived home,
spoke with Steven and Samuel briefly, and went upstairs to
the family's apartment. Plaintiffs claim that while Steven and
Samuel were talking, Steven noticed two of the undercover
officers, a male and a female, behaving strangely. His
suspicions aroused, plaintiffs claim that Steven commented
to Samuel—and only to Samuel—that he believed, based
on his experience living in the neighborhood, that these
two individuals were undercover cops. See Declaration of
Szczepanski, ECF 44, Ex. 1, at 42:6–43:11. Both Steven
and Samuel stated in their depositions that Steven made
this remark, which was overheard by UC244, two or three
times. See Declaration of Szczepanski, ECF 44, Ex. 1, at
44:7–9 (stating that he made the statement “maybe twice”);
Declaration of Szczepanski, ECF 44, Ex. 3, at 33:14 (stating
that Steven made the statement “three times, maybe”).
Samuel apparently acknowledged the statement, but testified
in his deposition that he neither agreed nor disagreed.
See Declaration of Szczepanski, ECF 44, Ex. 1, 42:12–24;
Declaration of Szczepanski, ECF 44, Ex. 2, at 33:2–24,
37:23–38:2. Plaintiffs contend that Michael Serrano, Steven's
brother, was not present when these statements were made,
and defendants do not suggest otherwise. See Def. Response
Rule 56.1 Statement, ECF 45, at ¶ 11.
Although the police reports are contradictory, defendants now
take the position that Steven made this remark not only to
Samuel, but also to JD Red in an effort to warn him that
the police were present. 3 In effect, defendants claim that
Steven and the other plaintiffs were acting as lookouts for
drug dealers in the area. The parties dispute how close Steven
and Samuel were standing to JD Red when the statements
were made, but Steven testified at his deposition that they
were approximately ten feet from JD Red at the time. See
Declaration of Szczepanski, ECF 44, Ex. 1, at 35:8.

3

The record is somewhat inconsistent on this
point. UC244's contemporaneous report stated that
Steven “then signal [sic] JD Red, don't do anything
‘he's a cop.’ ” See Declaration of Kavin Thadani,
ECF 41, Ex. C. However, the Criminal Complaint
drafted by Officer DiSimone stated that “defendant
MICHAEL SERRANO and defendant GARCIA
both pointed at informant #2 and stated in sum
and substance, ‘THAT GUY IS A COP.’ ” See
Declaration of Kavin Thadani, ECF 41, Ex. A,
at 2. In any event, plaintiffs' current position
renders this inconsistency irrelevant. Plaintiffs now
claim that although Steven was speaking only
to Samuel, he did state, in sum and substance,
that he believed certain individuals in the vicinity
were undercover cops. For the reasons explained
below, even viewing the evidence in the light
most favorable to plaintiff, this statement gave the
officers arguable probable cause to arrest plaintiff
Steven Serrano.

Meanwhile, JD White returned to UC114 and informed him
that the dealers would not complete the transaction because
of police presence in the area. JD White then led UC114 to
a laundromat around the corner from plaintiffs' apartment.
Once out of view, JD White sold UC114 three glassines of
heroin. UC114 then left the area, met up with UC244, and
together they notified a field team that the transaction was
complete.
Having received the notification, the arrest team, which
included officers DiSimone and McHale, swarmed the scene
and arrested a number of individuals, including JD Red and
JD White. Believing that plaintiffs were acting as lookouts
in the drug transaction, and based on a positive identification
from UC244, Steven, Samuel, and Michael were also
arrested. During the course of his arrest, Steven admitted
to having a marijuana cigarette on his person, and officers
recovered the cigarette during a pat-down search. Based on
this information, all three plaintiffs were arrested and charged
with Criminal Sale of a Controlled Substance in the Third
Degree and Criminal Possession of a Controlled Substance in
the Seventh Degree. Although UC244 apparently identified
all three plaintiffs, Steven and Michael testified in their
respective depositions that Michael was not present when
Steven remarked that certain individuals in the area were
undercover cops. See Declaration of Szczepanski, ECF 44,
Ex. 1, at 45:23–46:3; Declaration of Szczepanski, ECF 44,
Ex. 2, at 34:15–35:15. Plaintiffs also contend that Michael
was inside the apartment building when the arrests began

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and was arrested only after he returned outside when the
uniformed police officers arrived on the scene. See PI. Rule
56.1 Statement, ECF 44, at ¶¶ 11, 22–23. Defendants have
not advanced any evidence to the contrary, see Def. Response
Rule 56.1 Statement, ECF 45, at ¶¶ 11, 22–23, arguing instead
that plaintiffs' version of events still supports the officers'
actions.

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In ruling on a motion for summary judgment,
a Court must “view the evidence in the light most favorable to
the party opposing summary judgment, ... draw all reasonable
inferences in favor of that party, and ... eschew credibility
assessments.” Amnesty Am. v. Town of West Hartford, 361
F.3d 113, 122 (2d Cir. 2004).

*3 During his arrest, Steven asked the officers to use two

In § 1983 claims of this kind, the Second Circuit has cautioned
that because “[t]he issue of probable cause” is “predominantly
factual in nature,” it is “properly presented to the jury.” Moore
v. Comesanas, 32 F.3d 670, 673 (2d Cir. 1994); see also
Farrell v. City of New York, No. 15 CIV. 8401 (PAE), 2018
WL 944400, at *10 (S.D.N.Y. Feb. 15, 2018). However,
defendants also argue that the officers are entitled to qualified
immunity, which is a question of law for the Court. See
Hunter v. Bryant, 502 U.S. 224, 228 (1991) (describing
qualified immunity as a legal question that “ordinarily should
be decided by the court long before trial”). The Supreme
Court has explained that “officers are entitled to qualified
immunity under § 1983 unless (1) they violated a federal
statutory or constitutional right, and (2) the unlawfulness of
their conduct was ‘clearly established at the time.’ ” D.C.
v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v.

4

sets of handcuffs on him, as they had done with Michael.
The officers declined to do so, cuffed Steven with a single
set of handcuffs, and placed plaintiffs in the back of an
NYPD van. For approximately thirty minutes after his arrest,
Steven complained that his handcuffs were too tight and
requested that they be loosened. Although officers loosened
the handcuffs after multiple requests, plaintiffs claim that
Steven suffered physical pain in the interim and had minor
abrasions on his wrists. See Declaration of Szczepanski, ECF
44, Ex. 1, at 73:7–76:16. It is uncontested that Steven did not
seek medical attention for his alleged injuries, either during
or after his release from custody, nor did he experience any
lasting medical issues.
4

Steven testified at his deposition that Michael was
double-cuffed because of an accident. Declaration
of Szczepanski, ECF 44, Ex. 1, at 74:19.

After a number of court appearances, the charges against
Samuel Garcia and Michael Serrano were dismissed on
motion by the Bronx County District Attorney's Office. See
Declaration of Kavin Thadani, ECF 41, Ex. M, at 2:11–
15 (“Although People's motion was that there was probable
cause to arrest this defendant, on further review, it is the
People's position that we would be unable to meet our
higher burden of proof at trial and as such are requesting
dismissal at this time.”). On the same day, the charges against
Steven Serrano were dismissed on speedy trial grounds. See
Declaration of Kavin Thadani, ECF 41, Ex. O, at 2:10–11.

Discussion
Under the well-established summary judgment standard, a
“court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue of material fact exists “if the evidence
is such that a reasonable jury could return a verdict for the

Howards, 566 U.S. 658, 664 (2012) ). 5 Although an officer's
entitlement to qualified immunity is a question of law for
the Court, the Second Circuit has explained that even when
the motion is “based on qualified immunity,” “resolution of
genuine factual issues is inappropriate.” McClellan v. Smith,
439 F.3d 137, 149 (2d Cir. 2006); see also Stephenson v. Doe,
332 F.3d 68, 76 (2d Cir. 2003) (“A defendant should press
a qualified immunity defense during pretrial proceedings so
that such a claim can be disposed of by summary judgment
where possible, or factual disputes material to the defense can
be identified and presented to the jury.”).
5

In the context of a false arrest claim, qualified
immunity protects officers provided that they had at
least arguable probable cause to support the arrest.
Kass v. City of New York, 864 F.3d 200, 206 (2d
Cir. 2017). This issue is discussed in greater detail
below.

A. False Arrest
*4 Defendants argue that summary judgment is appropriate
on plaintiffs' false arrest claims because the officers
had probable cause to support their arrests. Alternatively,
defendants argue that the officers are entitled to qualified
immunity because they had arguable probable cause.

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Analyzing each of plaintiff's claims individually, I find that,
in light of the facts and circumstances known to the officers
at the time of the arrests, the officers are entitled to qualified
immunity only with respect to plaintiff Steven Serrano's false
arrest claim. But as to plaintiffs Samuel Garcia and Michael
Serrano, material disputes of fact make summary judgment
inappropriate, and defendants' motion is denied as to those
claims.
A § 1983 claim for false arrest that allegedly occurred in New
York is “substantially the same as a claim for false arrest
under New York law.” Gonzalez v. City of Schenectady, 728
F.3d 149, 155 (2d Cir. 2013). 6 “To state a claim for false
arrest under New York law, a plaintiff must show that ‘(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.’ ” Savino v. City of New York, 331 F. 3d
63, 75 (2d Cir. 2003) (quoting Bernard v. United States, 25
F.3d 98, 102 (2d Cir. 1994) ).
6

Although the parties do not address the issue, the
amended complaint also raises a separate claim
for false imprisonment. See Amended Complaint,
ECF 27, at ¶ 64(d). But “[u]nder New York law,
false arrest and false imprisonment are one and the
same, and the elements for both are the same as
for a false arrest claim under § 1983.” Hershey
v. Goldstein, 938 F. Supp. 2d 491, 515 (S.D.N.Y.
2013); see also Hatcher, 2018 WL 1583036, at *3.
As such, plaintiffs' false imprisonment claims are
coterminous with their false arrest claims and can
be analyzed together. See, e.g., Hatcher, 2018 WL
1583036, at *3.

It is well settled that “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). The probable
cause standard is derived from the Fourth Amendment,
which protects individuals from unreasonable searches and
seizures, “including arrest without probable cause.” Weyant
v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “A police
officer has probable cause for an arrest when he has
‘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.’ ” Swartz v. Insogna,
704 F.3d 105, 111 (2d Cir. 2013) (quoting Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996) ); see also Jaegly, 439 F.3d at

152; Hatcher v. City of New York, No. 15-CV-7500 (VSB),
2018 WL 1583036, at *4 (S.D.N.Y. Mar. 27, 2018).
“Even if probable cause for the actual arrest charge did not
exist, the existence of probable cause to arrest for any offense
precludes a false arrest claim.” Higginbotham v. City of New
York, 105 F. Supp. 3d 369, 373 (S.D.N.Y. 2015); see also
Jaegly, 439 F.3d at 154 (“[W]e conclude here that a claim
for false arrest turns only on whether probable cause existed
to arrest a defendant, and that it is not relevant whether
probable cause existed with respect to each individual charge,
or, indeed, any charge actually invoked by the arresting officer
at the time of arrest.”). Put differently, the actual charges
invoked against plaintiffs—Criminal Sale of a Controlled
Substance in the Third Degree and Criminal Possession of a
Controlled Substance in the Seventh Degree—are irrelevant.
The focus of this inquiry is “on the validity of the arrest, ...
not on the validity of each charge,” Jaegly, 439 F.3d at 154,
and a claim of false arrest fails if probable cause existed to
support any offense, regardless of the charge actually invoked
by the arresting officer.
*5 Defendants also claim that even if the officers lacked
probable cause to arrest plaintiffs, the officers are nonetheless
entitled to qualified immunity. It is well settled that “officers
are entitled to qualified immunity under § 1983 unless (1) they
violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was ‘clearly established at the
time.’ ” Wesby, 138 S. Ct. at 589 (quoting Reichle, 566 U.S. at
664). 7 When a claim of false arrest is made, “[a]n officer is
entitled to qualified immunity ... if he had arguable probable
cause to arrest the plaintiff for any offense, regardless of
the offense with which the plaintiff was actually charged.”
Kass v. City of New York, 864 F.3d 200, 206 (2d Cir. 2017)
(emphasis added); see also Collins v. City of New York, 295
F. Supp. 3d 350, 364 (S.D.N.Y. 2018) (applying the arguable
probable cause standard); Hatcher, 2018 WL 1583036, at
*4 (same). “Arguable probable cause exists when ‘it was
objectively reasonable for the officer to believe that probable
cause existed, or ... officers of reasonable competence could
disagree on whether the probable cause test was met.’ ” Kass,
864 F.3d at 206 (quoting Myers v. Patterson, 819 F.3d 625,
633 (2d Cir. 2016) ).
7

In order for a right to be “clearly established ...
at the time of the officer's conduct,” the law
must be “sufficiently clear that every reasonable
official would understand that what he is doing
is unlawful.” Wesby, 138 S. Ct. at 589 (internal

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quotation marks omitted) (quoting Ashcroft v. alKidd, 563 U.S. 731, 741 (2011) ). Moreover,
“[t]o be clearly established, a legal principle
must have a sufficiently clear foundation in thenexisting precedent.” Id. “It is not enough that
the rule is suggested by then-existing precedent;”
the “legal principle” must “clearly prohibit the
officer's conduct in the particular circumstances
before him.” Id. at 590.
In sum, the doctrine of qualified immunity protects an officer
“unless ‘no officer of reasonable competence could have
made the same choice in similar circumstances,’ ” id. (quoting
Myers, 819 F.3d at 633), and is intended to “protectQ ... all
but the plainly incompetent or those who knowingly violate
the law,” Wesby, 138 S. Ct. at 589 (quoting Malley v. Briggs,
475 U.S. 335,341 (1986) ).
1. Plaintiff Steven Serrano
Defendants first seek summary judgment with respect to
plaintiff Steven Serrano's false arrest claim. Because I find
that the officers had at least arguable probable cause to
support the arrest, the motion is granted.
The officers arrested Steven Serrano based on the following
sequence of events: During the course of a “buy and bust”
drug operation, UC244 heard Steven remark, at least once,
that certain individuals on the street were undercover cops.
Plaintiffs admit that Steven made such a statement multiple
times in a conversational tone and in an area directly adjacent
to drug activity. Then, apparently in response to Steven's
statements, JD White informed UC114 that his dealers would
not complete the transaction because of police presence in the
area. JD White then led UC114 to a laundromat around the
corner to avoid detection by undercover officers and made the
sale. Under these facts and circumstances, the officers had at
least arguable probable cause to arrest Steven Serrano as a
lookout to enable a Criminal Sale of a Controlled Substance in
the Third Degree, the crime for which he was charged, 8 and
for Criminal Facilitation in the Fourth Degree. His conduct
could reasonably be interpreted as “conduct which provides [a
third person] with means or opportunity for the commission”
of a felony. N.Y. Penal Law § 115.00(1).
8

9

N.Y. Penal Law § 220.39(a) provides that “[a]
person is guilty of criminal sale of a controlled
substance in the third degree when he knowingly
and unlawfully sells ... a narcotic drag.”

9

In full, N.Y. Penal Law § 115.00(1) provides that
“[a] person is guilty of criminal facilitation in the
fourth degree when, believing it probable that he is
rendering aid ... to a person who intends to commit
a crime, he engages in conduct which provides
such person with means or opportunity for the
commission thereof and which in fact aids such
person to commit a felony.”

*6 To avoid summary judgment, plaintiffs argue that Steven
Serrano made these statements to Samuel Garcia, not JD
Red, and that Steven had no knowledge that drug activity
was afoot. See Pl. Rule 56.1 Statement, ECF 44, at ¶¶ 11–
14; see also Pl. Memorandum of Law in Opposition, ECF
44, at 10 (arguing that plaintiffs “did not interact with ‘JD
Red’ or ‘JD White’ nor did they know that a drug sale
was taking place near their apartment”). But this argument
misapprehends the focus of the inquiry, which centers on the
facts and circumstances known to the officers at the time
of the arrest. Swartz, 704 F.3d at 111. And even viewing
the evidence in the light most favorable to plaintiffs—that
is, assuming that Steven was speaking only to Samuel—the
officers still had at least arguable probable cause to believe
that Steven was involved in drug activity. Steven Serrano's
repeated statements that undercover officers were present
were made in a conversational tone and in the immediate
vicinity of a drug transaction. Officers heard these statements,
and plaintiffs admit that they were made. And tellingly,
after these statements were made, JD White told UC114
that the heroin deal had to be moved around the corner
because “the cops [were] out” and his dealers would not
complete the transaction otherwise. See Declaration of Kavin
Thadani, ECF 41, Ex. A, at 2. Taken together and viewed
from the perspective of the officers at the time, these facts
and circumstances were sufficient to create arguable probable
cause to support the arrest.
Moreover, Steven Serrano's false arrest claim must be
dismissed for a separate reason: during the officers' pat-down
search, plaintiff admitted that he had a marijuana cigarette
on his person. This gave officers probable cause to arrest
him for possession of marijuana under § 221.05 of the
New York Penal Law. 10 To avoid this conclusion, plaintiff
argues that because the officers lacked probable cause to
arrest Steven in the first place, the search incident to the
arrest was also unlawful and any evidence obtained therefrom
cannot shield the officers from liability. See Pl. Memorandum
of Law in Opposition, ECF 44, at 12. In effect, plaintiff
is advancing a version of the fruit of the poisonous tree

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doctrine, “an evidentiary rule that operates in the context of
criminal procedure” to exclude unlawfully obtained evidence
recovered as a consequence of unlawful official conduct.
Townes v. City of New York, 176 F.3d 138, 145 (2d Cir. 1999).
This argument is foreclosed by the Second Circuit's decision
in Townes. There, the Second Circuit explained that “[t]he
fruit of the poisonous tree doctrine is calculated ‘to deter
future unlawful police conduct’ and protect liberty by creating
an incentive—avoidance of the suppression of illegally seized
evidence—for state actors to respect the constitutional rights
of suspects.” Id. (quoting United States v. Calandra, 414 U.S.
338, 347 (1974) ). The need for such an incentive structure
is less forceful in the civil context, and the Second Circuit
has accordingly held that “[t]he fruit of the poisonous tree
doctrine ... is inapplicable to civil § 1983 actions.” Id.
10

N.Y. Penal Law § 221.05 provides that “[a] person
is guilty of unlawful possession of marihuana
when he knowingly and unlawfully possesses
marihuana.”

Under Townes, the fruit of the poisonous tree doctrine cannot
be used to “link the unreasonable search and seizure” to
what came next—the discovery of the marijuana cigarette
on plaintiff's person—which unquestionably gave officers
probable cause to arrest plaintiff Steven Serrano. Id. at 145–
46; Jenkins v. City of New York, 478 F.3d 76, 91 n.16 (2d Cir.
2007); see also Hatcher, 2018 WL 1583036, at *3 (S.D.N.Y.
Mar. 27, 2018) (“For federal false arrest claims, even in
circumstances where a preceding search is illegal, police
officers may use evidence obtained in that illegal search to
establish probable cause for an arrest.”); Hayes v. Perotta,
751 F. Supp. 2d 597, 602 (S.D.N.Y. 2010); Matthews v. City
of New York, 889 F. Supp. 2d 418, 431 (E.D.N.Y. 2012).
Therefore, even if the officers lacked arguable probable cause
for the initial search, plaintiff Steven Serrano's false arrest
claim must be dismissed. 11
11

Although the parties do not raise this issue, “[t]here
is some dispute ... as to whether this principle
applies when the underlying claim is a state, rather
than federal, false arrest claim.” Hatcher, 2018
WL 1583036, at *3 (collecting cases from New
York state courts). But courts in this district have
recognized that despite “some ambiguity as to
whether New York courts apply the same reasoning
as Townes, qualified immunity protects an officer”
in circumstances of this kind. Id. at *4; see also
Cabral v. City of New York, 662 Fed.Appx. 11,13

(2d Cir. 2016) (holding that “[w]hatever ambiguity
may exist as to [the New York Court of Appeals']
adoption of Townes's reasoning,” the officer was
entitled to “qualified immunity with regard to the
state claim”). Accordingly, the officers are also
entitled to qualified immunity on the same theory
for plaintiff Steven Serrano's state law claims for
false arrest.
*7 Accordingly, because the officers had at least arguable
probable cause to arrest plaintiff Steven Serrano, and because
probable cause is a complete defense to a claim of false arrest,
plaintiff's claim under § 1983 and state law for false arrest
must fail.
2. Plaintiff's Samuel Garcia and Michael Serrano
Applying the same framework described above to Samuel
Garcia, I cannot say at this stage that the officers had arguable
probable cause to support an arrest. As an initial matter,
the discovery of a marijuana cigarette at the scene cannot
support the arrests of Samuel Garcia or Michael Serrano.
The officers found the marijuana cigarette during a patdown search of Steven Serrano, and defendants do not claim
that the officers ever observed Garcia (or Michael Serrano,
for that matter) in possession of a controlled substance. 12
It is also clear, and defendants do not suggest otherwise,
that neither Garcia nor Michael Serrano had constructive
possession over the marijuana cigarette in Steven Serrano's
pocket at the time of the arrests. See People v. Manini, 79
N.Y.2d 561, 572–73 (1992) (“In New York, the rule has
long been that to support a charge that a defendant was in
constructive possession of tangible property, the People must
show that the defendant exercised ‘dominion or control’ over
the property by a sufficient level of control over the area in
which the contraband is found or over the person from whom
the contraband is seized.”); United States v. Paulino, 445
F.3d 211, 222 (2d Cir. 2006) (“Constructive possession exists
when a person ... knowingly has the power and the intention
at a given time to exercise dominion and control over an
object, either directly or through others.” (internal quotation
marks omitted) (quoting United States v. Gordils, 982 F.2d
64, 71 (2d Cir. 1992) ) ); see also N.Y. Penal Law § 10.00(8)
(defining possession). As such, Samuel Garcia and Michael
Serrano's arrests cannot be premised on criminal possession
of marijuana.
12

Defendants separately argue that “it is undisputed
that plaintiff Samuel Garcia was smoking
marijuana outside of 984 Bronx Park South a short

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time before his arrest.” Def. Memorandum of Law,
ECF 43, at 10. But this revelation came out in
plaintiffs' depositions. It is uncontested that the
officers never observed Garcia smoking marijuana
before his arrest; indeed, the criminal complaint
alleges possession of marijuana. See Declaration
of Kavin Thadani, ECF 41, Ex. A, at 1; see also
Swartz, 704 F.3d at 111 (focusing on the officer's
knowledge at the time of the arrest).
Moreover, as to Samuel Garcia, there are genuine disputes
of fact concerning his involvement in the drug transaction
at issue in this case. It is apparently undisputed that only
Steven Serrano, and not Garcia, commented aloud on the
presence of undercover officers outside of 984 Bronx Park
South. In his deposition, Garcia stated that he perhaps
acknowledged Steven Serrano's statements concerning police
activity, but was uninterested because it had “nothing to do
with [him].” Declaration of Szczepanski, ECF 44, Ex. 2,
at 33:8. Defendants have not seriously advanced a contrary
version of events, arguing instead that Garcia's mere presence
next to Steven Serrano at the time the statement was made
is sufficient to support the arrest. See Def. Memorandum of
Law, ECF 43, at 10–11. This argument proves too much.
Based on the evidence presented, the Court is left with only
a vague impression of Samuel Garcia's conduct prior to
his arrest, and what little information is presented suggests
that his involvement in the drug transaction was minimal or
nonexistent. Even granting defendants the widest possible
berth of qualified immunity, the doctrine cannot be used to
justify the arrest of a mere bystander to criminal activity. See
Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“[A] person's mere
propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause to
search that person.”). Viewing the evidence in the light most
favorable to plaintiffs, as I am required to do, that is precisely
what Samuel Garcia appears to have been.
*8 The evidence suggests that Michael Serrano's connection
to the drug transaction was even more attenuated. According
to plaintiffs' version of the events, which is supported by all
three plaintiffs' deposition testimony, Michael was not present
when Steven stated aloud that undercover cops were in the
area, nor was he outside when the arrests began. Michael
testified that he was inside the family apartment when the
arrests began and returned outside only after hearing his
brother yelling. See Declaration of Szczepanski, ECF 44, Ex.
2, at 33:2–24, 37:23–38:2. Defendants have not advanced a
alternative version of events, see Def. Response Rule 56.1
Statement, ECF 45, at ¶¶ 11, 22–23, and in any event, any

conflicting evidence in the record merely creates a genuine
dispute of fact for trial.
Under these circumstances, and given the disputed facts
presented by the parties, I cannot say that the officers had
probable cause, or even arguable probable cause, to support
the arrests of Samuel Garcia and Michael Serrano. As such,
defendants' motion for summary judgment on these claims is
denied.
B. Unreasonable Search and Seizure
Plaintiffs also raise claims for unreasonable search and
seizure under § 1983 and state law. Under § 1983, a plaintiff
may recover money damages for unreasonable searches and
seizures that violate the Fourth Amendment. In analyzing
such a claim, “courts look to the reasonableness of the search
when determining whether a search violated a plaintiff's
constitutional rights.” Hatcher, 2018 WL 1583036, at *7
(citing Terry v. Ohio, 392 U.S. 1, 9 (1968) ). However, officers
are generally permitted to conduct reasonable searches
incident to a lawful arrest. See Arizona v. Gant, 556 U.S. 332,
338 (2009). Therefore, to the extent that there was probable
cause to support plaintiffs' arrests, any reasonable searches
incident to their arrests were also lawful, see Guerrero v.
City of New York, No. 12 CIV. 2916, 2013 WL 673872, at
*4 n.3 (S.D.N.Y. Feb. 25, 2013) (“In addition, to the extent
that Guerrero is basing his § 1983 claim on an allegedly
unreasonable search, ... this claim fails as well, because a
search incident to a lawful arrest is per se reasonable.”);
Moore v. Hearle, 639 F. Supp. 2d 352, 356 (S.D.N.Y. 2009)
(“Generally, officers are justified in conducting searches
incident to a lawful arrest in order to ensure the safety of
officers as well as to prevent the destruction of evidence.”);
Walker v. City of New York, No. 15 CV 500 (NG) (ST), 2017
WL 2799159, at *6 (E.D.N.Y. June 27, 2017) (“Because there
was probable cause for plaintiff's arrest, the search of his
person was lawful.”).
As such, plaintiffs' unreasonable search and seizure claims
turn entirely on the probable cause analysis conducted above.
Because I have already found that the officers had at least
arguable probable cause to support the arrest of plaintiff
Steven Serrano, the officers are also entitled to qualified
immunity as to his unreasonable search and seizure claim. 13
See Walker, 2017 WL 2799159, at *6. Defendants' motion
for summary judgment is therefore granted as to Steven
Serrano. But because I have found that summary judgment
is inappropriate on the question of arguable probable cause

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to arrest plaintiffs Samuel Garcia and Michael Serrano, see
supra section A.2, their claims for unreasonable search and
seizure also must survive. Accordingly, defendants' motion
for summary judgment as to Samuel Garcia and Michael
Serrano is denied.
13

Unlike his false arrest claim, the discovery of the
marijuana cigarette cannot support the officers'
search of plaintiff Steven Serrano, for the cigarette
was found only once the search began See Townes,
176 F.3d at 148 (“Victims of unreasonable searches
or seizures may recover damages directly related
to the invasion of their privacy—including (where
appropriate) damages for physical injury, property
damage, injury to reputation, etc.; but such victims
cannot be compensated for injuries that result
from the discovery of incriminating evidence and
consequent criminal prosecution.”); Matthews, 889
F. Supp. 2d at 431 (finding that “plaintiffs must
allege damages attributable to the claims for
unreasonable search and seizure to recover under
Section 1983” and could not recover damages
for false arrest). Regardless, because I find that
Steven Serrano's initial arrest was supported
by arguable probable cause independent of his
marijuana possession, plaintiff cannot maintain an
unreasonable search and seizure claim. See Walker,
2017 WL 2799159, at *6.

C. Malicious Prosecution
*9 Plaintiffs also raise claims for malicious prosecution
under § 1983 and state law. The elements of malicious
prosecution under New York law are: “(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.” Jocks
v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003) (internal
quotation marks omitted) (quoting Murphy v. Lynn, 118
F.3d 938, 947 (2d Cir. 1997) ). Additionally, “[i]n order to
allege a cause of action for malicious prosecution under §
1983, [plaintiffs] must assert, in addition to the elements of
malicious prosecution under state law, that there was (5) a
sufficient post-arraignment liberty restraint to implicate the
plaintiff's Fourth Amendment rights.” Rohman v. New York
City Transit Auth. (NYCTA), 215 F.3d 208, 215 (2d Cir. 2000);
see also Hatcher, 2018 WL 1583036, at *5 (applying these
elements); Lynch v. City of New York, No. 16 CIV. 7355

(LAP), 2018 WL 1750078, at *7 (S.D.N.Y. Mar. 27, 2018)
(same).
As with claims for false arrest under § 1983, “[t]he existence
of probable cause is a complete defense to a claim of
malicious prosecution.” Manganiello v. City of New York,
612 F.3d 149, 161–62 (2d Cir. 2010) (quoting Savino v. City
of New York, 331 F.3d 63, 72 (2d Cir. 2003) ). However,
“[t]he Second Circuit has clarified that ‘probable cause’ in
the malicious prosecution context means ‘probable cause to
believe that [the prosecution] could succeed.’ ” Garcia v. Cty.
of Westchester, No. 11-CV-7258 (KMK), 2017 WL 6375791,
at *23 (S.D.N.Y. Dec. 12, 2017) (quoting Boyd v. City of New
York, 336 F.3d 72, 76 (2d Cir. 2003) ). This is so because
“[t]he probable cause standard in the malicious prosecution
context is slightly higher than the standard for false arrest
cases.” Stansbury v. Wertman, 721 F.3d 84, 95 (2d Cir. 2013)
Courts must therefore take care not to “conflate probable
cause to arrest with probable cause to believe that [a plaintiff]
could be successfully prosecuted,” for “[o]nly the latter kind
of probable cause is at issue with respect to the malicious
prosecution claim.” Posr v. Court Officer Shield No. 207, 180
F.3d 409, 417 (2d Cir. 1999). This distinction is not relevant
to this case, however. First, plaintiffs have not attempted to
differentiate between the two standards, instead relying solely
on the theory that the officers lack probable cause to support
their arrests. See Pl. Memorandum of Law in Opposition, ECF
44, at 12. Second, this distinction is meant to capture the
notion that although probable cause might exist at the time of
arrest, “evidence could later surface which would eliminate
that probable cause.” Lowth v. Town of Cheektowaga, 82 F.3d
563, 571 (2d Cir. 1996) (internal quotation marks omitted)
(quoting Cox v. County of Suffolk, 780 F. Supp. 103, 108
(E.D.N.Y. 1991) ). In such a case, the Second Circuit has
explained that “[i]n order for probable cause to dissipate, the
groundless nature of the charges must be made apparent by
the discovery of some intervening fact.” Id.; see also Garcia,
2017 WL 6375791, at *23 (“If, however, ‘probable cause
existed at the time of the arrest and the plaintiff offers no
additional facts to show that it dissipated post-arrest, then
the claim for malicious prosecution cannot be maintained.’
” (quoting Jimenez v. City of New York, No. 15-CV-3257,
2016 WL 1092617, at * 4 (E.D.N.Y. Mar. 21, 2016) ) ).
Plaintiffs have not advanced any such theory, nor is there any
reason to believe this distinction is relevant to the facts of this
case.
As to plaintiff Steven Serrano, I find that the totality of
the facts and circumstances described above also support a

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finding of arguable probable cause to support his prosecution.
Based on Steven Serrano's statements, the context in which
they were made, and the fact that the drug transaction was
relocated apparently in response, the officers had probable
cause to believe that the prosecution against him could
succeed. Boyd, 336 F.3d at 76. Accordingly, the officers
are entitled to qualified immunity as to plaintiff Steven
Serrano's malicious prosecution claims, and the motion for
summary judgment is granted as to him. But as to plaintiffs
Samuel Garcia and Michael Serrano, I already have held
that summary judgment is inappropriate on the question of
arguable probable cause to support their arrests. See supra
section A.2. Because “[t]he probable cause standard in the
malicious prosecution context is slightly higher than the
standard for false arrest cases,” Stansbury, 721 F.3d at 95,
the officers necessarily lacked sufficient probable cause to
support the prosecutions of Samuel Garcia and Michael
Serrano.
*10 Defendants also argue that plaintiffs have not put
forth evidence to “prove the fourth element of [a malicious
prosecution] claim—that the prosecution was motivated
by malice.” Lowth, 82 F.3d at 573. To show malice,
plaintiffs must demonstrate that “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.” Dufort v. City of New York,
874 F.3d 338, 353 (2d Cir. 2017) (internal quotation marks
omitted) (quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 502–
03 (1978) ). I find that plaintiffs have sufficiently established
malice to survive summary judgment. First, in most cases,
“[a] lack of probable cause generally creates an inference
of malice.” Boyd, 336 F.3d at 78; see also Dufort, 874 F.3d
at 353 (“Malice may be inferred ... from the absence of
probable cause.”). Moreover, plaintiffs' theory is that their
prosecutions were motivated to induce cooperation in an
unrelated investigation into a nearby shooting, which “also
supports the inference that the prosecution against him was
improperly motivated.” Dufort, 874 F.3d at 354 (holding
that the plaintiff had demonstrated a material dispute of fact
when the trial attorney “was told by detectives that they were
treating [the plaintiff] as a suspect solely in order to induce
him to testify against other participants”). Because the record
also presents genuine issues of fact on the question of malice,
the motion for summary judgment is denied as to plaintiffs
Samuel Garcia and Michael Serrano.
D. Excessive Force

Plaintiff Steven Serrano also brings a claim for excessive
force, principally arguing that the handcuffs placed on his
wrists were too tight and his pleas to loosen the cuffs went
unanswered. 14 “A claim of excessive use of force during an
arrest is analyzed under the Fourth Amendment's ‘objective
reasonableness’ standard.” Case v. City of New York, 233
F. Supp. 3d 372, 385 (S.D.N.Y. 2017) (quoting Graham v.
Connor, 490 U.S. 386, 388 (1989) ). “As in other Fourth
Amendment contexts, ... the ‘reasonableness’ inquiry in an
excessive force case is an objective one: the question is
whether the officers' actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Graham, 490
U.S. at 397.
14

Plaintiffs Samuel Garcia and Michael Serrano do
not allege claims for excessive force.

The Second Circuit has “recognized that excessively tight
handcuffing that causes injury can constitute excessive force
in violation of the Fourth Amendment.” Shamir v. City of
New York, 804 F.3d 553, 557 (2d Cir. 2015). “[I]n evaluating
the reasonableness of handcuffing, a Court is to consider
evidence that: (1) the handcuffs were unreasonably tight;
(2) the defendants ignored the [plaintiffs'] pleas that the
handcuffs were too tight; and (3) the degree of injury to the
wrists.” Case, 233 F. Supp. 3d at 385 (internal quotation
marks omitted) (quoting Lynch ex rel. Lynch v. City of Mount
Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008) ); see
also Lloyd v. City of New York, 246 F. Supp. 3d 704, 724
(S.D.N.Y. 2017). Courts have placed particular emphasis on
the injury requirement, see Usavage v. Port Auth. of New York
& New Jersey, 932 F. Supp. 2d 575, 592 (S.D.N.Y. 2013),
and “[t]here is a consensus among courts in this circuit that
tight handcuffing does not constitute excessive force unless
it causes some injury beyond temporary discomfort,” Lynch,
567 F. Supp. 2d at 468. Although an alleged injury need
not be “severe or permanent,” Vogeler v. Colbath, No. 04
CIV. 6071(LMS), 2005 WL 2482549, at *9 (S.D.N.Y. Oct. 6,
2005), it must be more than merely “de minimis,” Usavage,
932 F. Supp. 2d at 592.
Here, even viewing the facts in the light most favorable
to plaintiff, defendants are entitled to summary judgment.
The record shows that after Steven Serrano complained that
his handcuffs were too tight (and initially requested that he
be double-cuffed), the officers loosened his handcuffs. The
officers did not, as plaintiff claims, ignore his pleas that
the handcuffs were too tight. Case, 233 F. Supp. 3d at 385.

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Moreover, plaintiff has not established an injury that rises
above a de minimis level. There is no dispute that Steven
Serrano never requested medical treatment while in custody,
nor did he seek medical treatment following his release.
See Usavage, 932 F. Supp. 2d at 592 (noting that “[t]he
most common injuries found to satisfy the injury requirement
in handcuff cases are scarring and nerve damage”). As a
general rule, “[c]ourts in this Circuit have ... found that
handcuffing does not suffice for an excessive force claim
unless it causes some injury beyond temporary discomfort or
bruising.” Lloyd, 246 F. Supp. 3d at 724 (internal quotation
marks omitted) (quoting Omor v. City of New York, No. 13cv-2439 (RA), 2015 WL 857587, at *7 (S.D.N.Y. Feb. 27,
2015) ). The law is clear that the evidence raised here is
insufficient to support an excessive force claim. Accordingly,
the motion for summary judgment as to Steven Serrano's
excessive force claim is granted.
E. Assault and Battery
*11 Under New York law, “[a]n ‘assault’ is an intentional
placing of another person in fear of imminent harmful or
offensive contact. A ‘battery’ is an intentional wrongful
physical contact with another person without consent.”
Girden v. Sandals Int'l, 262 F.3d 195, 203 (2d Cir. 2001)
(internal quotation marks omitted) (quoting United Nat'I Ins.
Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2d
Cir. 1993) ); see also Green v. City of New York, 465 F.3d 65,
86 (2d Cir. 2006); Rucks v. City of New York, 96 F. Supp. 3d
138, 152 (S.D.N.Y. 2015). Although all three plaintiffs assert
claims under New York state law for assault and battery, the
claims rest on different theories.
1. Steven Serrano
Plaintiff Steven Serrano's assault and battery claim rests
on two grounds: (1) unlawful physical contact incident to
an allegedly unlawful arrest, and (2) assault and battery
related to the tightness of the handcuffs. On the first of these
grounds, the existence of probable cause to support plaintiff's
arrest fatally undermines his claim. The law is clear that
“where there has been a lawful arrest, intentional contact with
the arrested person does not constitute assault and battery,
provided such force is reasonable.” Leibovitz v. City of New
York, No. 14 Civ 3297 (RA) (JCF), 2016 WL 3671232, at *8
(S.D.N.Y. Mar. 17, 2016) (internal quotation marks omitted)
(quoting Cunningham v. United States, 472 F. Supp. 2d 366,
381 (E.D.N.Y. 2007) ); see also Lloyd, 246 F. Supp. 3d at
729. Accordingly, because the officers had probable cause to

arrest plaintiff, Steven Serrano cannot maintain an assault and
battery claim under New York law.
As to plaintiffs handcuffing theory, assault and battery claims
of this kind “are evaluated like excessive force claims.” Green
v. City of Mount Vernon, 96 F. Supp. 3d 263, 295 (S.D.N.Y.
2015) (internal quotation marks omitted) (quoting Brown v.
City of New York, No. 11–CV–1068, 2013 WL 491926, at
*10 (S.D.N.Y. Feb. 8, 2013) ). This is so because “except for
§ 1983's requirement that the tort be committed under color
of state law, the essential elements of the two claims” are
“substantially identical.” POSR V. Doherty, 944 F.2d 91, 95
(2d Cir. 1991); Lloyd, 246 F. Supp. 3d at 729; Tompkins v. City
of New York, 50 F. Supp. 3d 426, 440 (S.D.N.Y. 2014) (“New
York courts analyze assault and battery claims against police
officers using the same standard applicable to excessive force
claims under Section 1983.”). Because plaintiff has failed to
establish a claim for excessive force under § 1983, defendants'
motion for summary judgment as to Steven Serrano's assault
and battery claims is also granted.
2. Michael Serrano
Plaintiff Michael Serrano has not alleged that officers used
excessive force during the course of his arrest. 15 Instead,
plaintiff relies on the first ground discussed above—i.e.,
that because his underlying arrest was unlawful, any contact
associated with it was also unlawful. See Rucks, 96 F. Supp.
3d at 152–53 (“[I]f an arrest is determined to be unlawful,
any use of force against a plaintiff may constitute an assault
and battery, regardless of whether the force would be deemed
reasonable if applied during a lawful arrest.”); Goonewardena
v. Spinelli, No. 15-CV-5239 (MKB) (ST), 2017 WL 4280549,
at *11 (E.D.N.Y. Sept. 26, 2017) (“New York law holds
that any force used during the course of an unlawful arrest
gives rise to assault and battery claims against the arresting
officers.”).
15

As noted above, see supra Note 1, all of plaintiff
Samuel Garcia's state law claims have been
dismissed.

*12 Because the issue of arguable probable cause to
arrest Michael Serrano raises a disputed issue of material
fact, plaintiffs assault and battery claim also must be put
to a jury. See Goonewardena, 2017 WL 4280549, at *11
(“Accordingly, because Plaintiff has established a false arrest
claim against [defendant police officers], under New York
law, Plaintiff has established assault and battery claims
against [the defendants].”); Biswas v. City of New York, 973

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F. Supp. 2d 504, 530–31 (S.D.N.Y. 2013) (“If an arrest is
unlawful, an arresting police officer commits a battery when
he or she touches the arrestee, including during the application
of handcuffs.”); cf. Lloyd, 246 F. Supp. 3d at 729 (“But
because Plaintiff's excessive force claims based upon the
pushing and handcuffing incidents must be decided by a
jury, so too must her state law assault and battery claims.”).
Accordingly, the motion for summary judgment is denied.
F. Municipal Liability
Finally, defendants argue that they are entitled to summary
judgment as to all claims against the City brought under a
theory of respondeat superior.
Unlike claims brought under § 1983, “New York law permits
plaintiffs to hold municipalities vicariously liable for torts
committed by employees while acting within the scope
of their employment.” Tompkins, 50 F. Supp. 3d at 440;
see also Ackerson v. City of White Plains, 702 F.3d 15,
22 (2d Cir. 2012). However, there can be no vicarious
liability in the absence of individual liability on the part
of a City's employees. See Hatcher, 2018 WL 1583036, at
*10 (explaining that where “there are no viable tort claims
against the individual Defendants, there is no basis for City
liability under a respondeat superior theory”); Jenkins v. City
of New York, No. 10 CIV. 4535 AJN, 2013 WL 870258, at *14
(S.D.N.Y. Mar. 6, 2013).
Therefore, to the extent that plaintiffs retain state law claims
against individual officers the City may be held vicariously
liable under a theory of respondeat superior. Mesa v. City of
New York, No. 09 CIV. 10464 JPO, 2013 WL 31002, at *34
(S.D.N.Y. Jan. 3, 2013) (“Accordingly, where Plaintiffs' state
law claims survive, so too do their respondeat superior claims
against the City.”). Because all of plaintiff Steven Serrano's
state law claims have been dismissed, all pendant state law
claims against the City also are dismissed. See Hatcher, 2018
WL 1583036, at *10. But as to plaintiff Michael Serrano, the
City may be held liable for his remaining state law claims
for false arrest, malicious prosecution, unreasonable search
and seizure, and assault and battery. See Bleiwas v. City of
New York, No. 15 CIV. 10046 (ER), 2017 WL 3524679, at *4
(S.D.N.Y. Aug. 15, 2017) (“Additionally, because the Court
finds that Plaintiff has sufficiently alleged a state false arrest
claim, the City may be held liable pursuant to a theory of
End of Document

respondeat superior.”); Ramos v. City of New York, No. 15
CIV. 6085 (ER), 2017 WL 3267736, at *12 (S.D.N.Y. July
31, 2017) (“Here, the Court has found that Plaintiffs have a
viable malicious prosecution claim against Detective Marrero
as it relates to the charge of the sale of a controlled substance.
Therefore, to the extent Plaintiffs seek to impose liability on
the City for the remaining malicious prosecution claim, they
are allowed to proceed.”); Williams v. City of White Plains,
718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010) (“The remaining
state law claim of assault and battery against the City of White
Plains is alive due to the potential for vicarious liability for
actions of its police officers as its employees.”). Accordingly,
defendants' motion for summary judgment is granted as to all
state law claims brought by Steven Serrano, but denied as to
all remaining state law claims brought by Michael Serrano.

Conclusion
*13 For the reasons stated herein, the motion for summary
judgment is granted in part and denied in part. The motion is
granted as to all claims asserted by plaintiff Steven Serrano,
and his complaint against defendants is dismissed. As to
all claims raised by plaintiffs Samuel Garcia and Michael
Serrano, the motion is denied. Plaintiffs Samuel Garcia
and Michael Serrano shall retain claims for false arrest,
unreasonable search and seizure, and malicious prosecution.
Michael Serrano shall also retain his state law claim for
assault and battery, as well as all pendant state law claims
against the City under respondeat superior.
The clerk is instructed to terminate the motion (ECF 40).
The oral argument, currently scheduled for July 26, 2018, is
cancelled. Plaintiffs shall amend their complaint to reflect that
the claims of Steven Serrano have been dismissed, and restate,
without change, the claims by Samuel Garcia and Michael
Serrano. The parties shall appear for a status conference on
August 17, 2018, to determine what discovery remains, and
if none remains, to set a trial date.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 3392869

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11

Bannister v. Luis, Slip Copy (2022)
2022 WL 19402512

KeyCite Yellow Flag - Negative Treatment
Report and Recommendation Adopted as Modified by Bannister v. Luis,
E.D.N.Y., March 2, 2023

2022 WL 19402512
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Henry BANNISTER, Plaintiff,
v.
Detective Marvin LUIS, Ryan Giuffre,
Police Officer Joseph Giannina, Defendant.
18-CV-7285 (EK) (ST)
|
Signed February 16, 2022
Attorneys and Law Firms
Henry Bannister, Spartanburg, SC, Pro Se.
Zachary Kalmbach, New York City Law Department, Special
Federal Litigation Division, New York, NY, for Defendants.

REPORT AND RECOMMENDATION
TISCIONE, United States Magistrate Judge:
INTRODUCTION
*1 This case results from Plaintiff Henry Bannister's arrest,
detention, and subsequent criminal prosecution, which took
place from May 24, 2016, until September of 2018, and
during which Plaintiff alleges his rights were violated by
Defendants. Plaintiff, proceeding pro se, filed a complaint
which is a collection of grievances filed to other bodies,
alleging conduct which violated his federal rights. Before this
Court is Defendants’ motion for summary judgment on the
claims of false arrest and malicious prosecution, to declare
any state-law claims time-barred, and to dismiss Defendant
Giannina from the action. Defendants also ask that we deem
Plaintiff's claims abandoned. For the reasons discussed below,
I recommend the Defendants’ motion be GRANTED IN
PART AND DENIED IN PART.

BACKGROUND

I. Facts
On May 24, 2016, Plaintiff was parking a rental car when
two officers, Defendants Luis and Giuffre, approached his
vehicle. Pl. Compl., 15, ECF No. 1. In the driver's seat of the
car was the Plaintiff, while a man named Tashaun Canty was
in the passenger's seat. Id. According to Plaintiff's complaint,
Officer Luis opened the passenger side door and removed
Mr. Canty from the vehicle, while Officer Giuffre approached
the driver's side window and tapped on it to get Plaintiff's
attention. Id. Plaintiff says Officer Giuffre asked him for his
license and registration and, in lieu of registration, he handed
the Officer his rental contract. Id. at 15-16. He claims that
during this exchange he saw Officer Luis escorting Mr. Canty
to an unmarked police vehicle, which pulled away with Mr.
Canty inside. Id. at 16. Plaintiff was then asked by Officer
Giuffre if he had anything in the car or on his person that
would cause harm to him, to which Plaintiff responded he did
not. Id. Officer Giuffre asked the Plaintiff to get out of the car
and proceeded to frisk him and the area in the vehicle where
Plaintiff had been sitting. Id.
At that point, Plaintiff claims, Officer Luis returned, entered
the car, and began to search. Id. at 16-17. After approximately
2-3 minutes, Plaintiff heard Officer Luis call out a number to
Officer Giuffre, which he believes to have been a signal to
arrest him. Id. at 17. Officer Giuffre then handcuffed Plaintiff
and escorted him to the un-marked sedan, which had returned
in that time, and he was transported to the precinct. Id.
The arrest report shows the reason Plaintiff was arrested was
because Officer Luis found a loaded handgun in the center
console of the car. See Def. R. 56.1 Br., ¶ 2, ECF No. 47-2.
Plaintiff himself confirmed this, saying in his deposition,
“The gun that was found in the car wasn't mine.” Bannister
Dep., 16, ¶¶ 16-17, ECF No. 47-5. Defendants also submitted
the results of a D.N.A. test performed on the gun, which
showed that the DNA found on a swab of the “slide grip
grooves, slide lock lever and safety” was “approximately 126
billion times more probable if the sample originated from
Henry Bannister and two unknown, unrelated persons than if
it originated from three unknown, unrelated persons.” D.N.A.
Rep., ECF No. 47-9.
*2 At some point after the arrest, there was a conversation
between Plaintiff and Defendant Luis regarding $5,000 found
in the vehicle. Plaintiff claims that while at the precinct, he
asked Officer Luis if the money inside his luggage bag was
safe and if he could have his sister come to the precinct to
pick it up. Id. at 17. He claims Officer Luis responded, “We

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don't want your fucking dope money, after were finish [sic]
with you, getting that money back would be the least of your
problems.” Id. The police report tells a different story. In the
report, Officer Giuffre attests that Officer Luis told him that
Plaintiff told Officer Luis he did not have to bring him in for
the gun and that Officer Luis could keep what was in the car.
Police Rep., 2, ECF No. 47-8.
Plaintiff was charged with criminal possession of a weapon in
the second, third, and fourth degree, criminal possession of a
firearm, possession of pistol ammunition, and bribery in the
second and third degree. Def. R. 56.1 Br., ¶ 4, ECF No. 47-2.
The gun was later suppressed, and all charges were dropped.
Pl. Compl., 25, ECF No. 1.
The record before the Court as to what happened at Plaintiff's
suppression hearing is very sparse (See New York State Sup.
Ct. Docket, ECF No. 47-10), and Defendants do not provide
any further details on why the firearm was suppressed.
Plaintiff claims that the Officers had no authority to stop
the car, as Plaintiff was lawfully parking, and that Officers
Giuffre and Luis gave conflicting testimony on what gave
them probable cause to stop and search the vehicle, resulting
in the gun's suppression. Pl. Compl., 19-20, 23, ECF No. 1.
At the grand jury proceeding, Plaintiff claims that Officer
Giuffre testified that the vehicle was stopped because it was
parking too close to a fire hydrant. Pl. Compl., 20, ECF No. 1.
But Plaintiff says it was later discovered that the fire hydrant
in question was actually over 85 feet away from where his
car was stopped. Id. at 24. He claims one of the officers
also offered up during the grand jury proceeding that they
smelled marijuana as they approached the car, which was
why they searched it. Id. at 21. However, at a later court
proceeding, on September 19, 2017, Plaintiff says one of the
officers instead testified that they saw what looked like a
marijuana cigarette, which is why they searched the car. Id. at
22. Plaintiff has not supported these contentions with exhibits
from the suppression hearing record.
Subsequent to Plaintiff's arrest, he was brought to the station
where he completed booking procedures, after which he says
his hands were tightly handcuffed behind his back. Id. at 18.
He was then taken to a steep stairway. Id. Because Plaintiff is a
bilateral prosthesis wearer, he struggled to climb the stairs and
had to be led by the handcuffs. Id. After climbing the stairs he
was led to a room where he was read his Miranda warnings,
and then was led back down the same staircase. Id. After this,
he claims he was placed in a cell still in the handcuffs. He

claims those tight handcuffs were left on him for several hours
and he was left in such a position that they cut off circulation
to his hands and arms. Id. He claims that he was in tears, and
it was not until the facilities’ change of shift procedures that
they were removed. Id.
II. The Instant Motion
The motion before this Court is a motion for summary
judgment by Defendants, filed on May 13, 2021. Def.
Mot., ECF No. 47. In their motion, Defendants request
summary judgment on any false arrest and malicious
prosecution claims. Id. They also request the Court dismiss
Officer Giannina from the complaint for lack of personal
involvement. Id. Finally, they request this Court declare that
any state law claims relating to Plaintiff's arrest are timebarred. Id.
*3 Defendants served the motion on Plaintiff in accordance
with the notice requirements contained in E.D.N.Y. Local
Rule 56.2. Plaintiff did not respond to the motion. Defendants
write that they contacted Plaintiff on May 4, 2021, and
May 10, 2021, after he failed to respond to the motion, and
Plaintiff informed them that he had received Defendants’
motion papers and did not intend to file an opposition to the
Defendants’ motion. See Def. May 13, 2021 Ltr., ECF No.
47-12.

LEGAL STANDARD
Summary judgment is appropriate when 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.” Fed. R.
Civ. P. 56(a). An issue of fact is material if the fact “might
affect the outcome of the suit under the governing law ...”
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). A genuine dispute exists as to
a material fact when “evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
On motions for summary judgment, the moving party bears
the initial burden of establishing the absence of a material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). Once the moving party meets
that burden, the non-moving party must then show there is a
genuine dispute for trial. Id. The burdens on both parties as to
the underlying elements are aligned as they would be at trial.
Anderson, 477 U.S. at 254, 106 S.Ct. 2505.

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When considering a motion for summary judgment, the Court
must construe “all ambiguities and draw all permissible
factual inferences in favor of the party against whom
summary judgment is sought.” Johnson v. Killian, 680 F.3d
234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d
128, 137 (2d Cir. 2003)).
Because Plaintiff is proceeding pro se, the Court affords
“special solicitude” to him when considering a motion for
summary judgment. See Graham v. Lewinski, 848 F.2d 342,
344 (2d Cir. 1988). This “special solicitude” includes reading
the filings of a pro se litigant “liberally” and interpreting them
to “raise the strongest arguments that they suggest.” Minus
v. City of New York, 488 F. Supp. 3d 58, 63 (S.D.N.Y. 2020)
(citing McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.
1999)) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994)). However, a nonmoving pro se plaintiff cannot rely
solely upon the pleadings to defeat summary judgment and
must point to specific evidence in the record to carry his
burden in summary judgment. See Salahuddin v. Goord, 467
F.3d 263, 273 (2d Cir. 2006). Where the nonmovant bears the
burden at trial, the movant may make a prima facie case for
summary judgment by either identifying sufficient evidence
to negate the nonmovants claims or identifying evidentiary
insufficiencies in Plaintiff's case that demonstrate the absence
of a genuine issue of material fact. Id. at 272-73 (citing
Celotex, 477 U.S. at 323, 106 S.Ct. 2548); Farid v. Smith, 850
F.2d 917, 924 (2d Cir. 1988).
A party's failure to respond to contentions raised in a motion
to dismiss generally constitutes abandonment of those claims.
Laface v. Eastern Suffolk BOCES, 349 F. Supp. 3d 126, 161
(E.D.N.Y. 2018). However, where the silent party is pro se,
abandonment is only generally granted where an intention
has been expressed to abandon the claim. See Omosefunmi v.
Weiss, No. 99-0025, 1999 WL 973516 at *1, 1999 U.S. App.
LEXIS 25093 at *4 (2d Cir. Sep. 30, 1999). Ultimately the
question of abandonment is “one of intent.” Austin v. Ford
Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998).

DISCUSSION
*4 Interpreting the Plaintiff's complaint as liberally as
possible, the I believe there to be four cognizable legal claims
within it, claims for: 1) false arrest; 2) malicious prosecution;
3) illegal stop and search; and 4) excessive force. I presume,
though it is not stated in the complaint, that these are brought

under 42 U.S.C. § 1983, which “provides remedies [under
federal law] for deprivations of rights established elsewhere.”
City of Okla. City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85
L.Ed.2d 791 (1985). A claim under § 1983 requires that the
individuals sued acted “under color of state law.” Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1994).
Defendants’ brief addresses the claims of false arrest and
malicious prosecution. Defendants ask that, due to Plaintiff's
failure to respond, the Court deem these claims abandoned. I
recommend that the Court not do so, given that Plaintiff has
not expressed an intent to abandon the claims, and has merely
failed to respond. Instead, I will perform a standard summary
judgment analysis of those claims and will address each claim
I believe raised by Plaintiff's complaint in turn, as well as
Defendants’ motions to dismiss potential state law claims and
Defendant Giannina.
I. The Court Should Take the Following Actions on
Plaintiff's Claims:
a. Summary Judgment Should Be Granted to
Defendants on Plaintiff's False Arrest Claim.
The Fourth Amendment of the United States Constitution
provides a right to be free from unreasonable seizures, which
includes the right to be free from arrest without probable
cause. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996). The elements of a false arrest claim under § 1983
are analogous to those under New York law: to meet his
burden, Plaintiff must show the Defendants intentionally
confined him without his consent and without justification.
Id. Probable cause to arrest is justification, and “is a complete
defense to an action for false arrest.” Id. (quoting Bernard v.
United States, 25 F.3d 98, 102 (2d Cir. 1994)); see also Singer
v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995);
Broughton v. State, 37 N.Y.2d 451, 458, 373 N.Y.S.2d 87, 335
N.E.2d 310 (1975).
The parties do not dispute that a loaded handgun was found in
the car Plaintiff was driving prior to his arrest; Plaintiff merely
claims that the gun did not belong to him. Bannister Dep., 16,
¶¶ 16-17, ECF No. 47-5. In New York, a loaded gun in a car
is generally probable cause to arrest the driver, regardless of
the actual ownership of the gun.
Probable cause requires only “a reasonable ground for belief
of guilt” that is “particularized with respect to the person to

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be ... seized.” Maryland v. Pringle, 540 U.S. 366, 370, 124
S.Ct. 795, 157 L.Ed.2d 769 (2003) (quoting in part Ybarra
v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238
(1979)). Reasonableness is judged from the viewpoint of an
“objectively reasonable officer.” Ornelas v. United States, 517
U.S. 690, 776, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
In New York State, a person is guilty of criminal possession
of a weapon in the second degree if he or she possesses
a loaded firearm and does not have a license to possess
such a firearm. See N.Y. Penal Law § 265.03. Under New
York law, the existence of a firearm in an automobile creates
a permissive presumption that all occupants of the vehicle
have common constructive possession of the firearm, absent
statutory exceptions, none of which apply in this case.
See N.Y. Penal Law § 265.15(3). If a jury may make a
presumption of possession under the law, it is reasonable for
a police officer to do the same. Therefore, upon finding the
loaded handgun in the car, the officers had probable cause to
arrest Plaintiff, which is a justification that defeats any false
arrest claim.
*5 Nor can Plaintiff maintain that the gun cannot be used
as a justification for the arrest because the stop or search
which led to the finding of the gun was unlawful. The fruit of
the poisonous tree doctrine does not apply to § 1983 claims.
Townes v. City of New York, 176 F.3d 138, 145 (2d Cir.
1999). We deal only with the situation at the time of the
arrest. At that time, an objectively reasonable officer would
be well within his rights to believe the loaded handgun was
possessed by Plaintiff, giving the officer probable cause that
Plaintiff had committed a crime. Because there is no dispute
a loaded handgun was found in the car, justification exists
for the arrest, and so summary judgment should be granted to
Defendants on this claim.

b. Summary Judgment Should Be
Granted to Defendants on Plaintiff's
Federal Malicious Prosecution Claim
To prove malicious prosecution, Plaintiff must show “a
seizure or other perversion of proper legal procedures
implicating [his] personal and privacy interests under the
Fourth Amendment” that was “initiated or continued against
him, with malice and without probable cause, and [was]
terminated in his favor.” See Lanning v. City of Glens Falls,
908 F.3d 19, 24 (2d Cir. 2018) (quoting in part Washington v.
County of Rockland, 373 F.3d 310, 316 (2d Cir. 2004)).

It is dubious whether Plaintiff pleads facts that give rise to
an inference of malice against him by Officers Giuffre and
Luis. Perhaps the closest he gets is in quoting Officer Luis
who, he claims, in response to him asking about whether
the money left inside his luggage bag was safe, responded,
“We don't want your fucking dope money, after were finish
[sic] with you, getting that money back would be the least
of your problems.” See Pl. Compl., 17, ECF No.1. After that
comment, Plaintiff was charged with bribery and gun charges.
Even if Plaintiff does plead facts that give rise to malice, he
must also support the contention there was not probable cause.
Plaintiff does say in his complaint that none of the charges
were warranted. However, Defendant's submission proving
the presence of the loaded gun in the car with Plaintiff's
DNA on it demonstrates that there was probable cause for
the gun charges, making summary judgment for Defendants
appropriate with respect to any malicious prosecution claim
on the gun charges.
But Plaintiff also fails to assert an additional essential element
of his claim: he makes no assertion that the case was
terminated in his favor. Both Plaintiff and the Defendants
agree that the criminal prosecution was dropped after the gun
was suppressed by a New York court. While federal § 1983
malicious prosecution elements mirror New York State law
in many ways, federal courts in this Circuit do not follow
the New York State courts on the issue of what is defined
as a favorable termination. Under federal law, a Plaintiff
alleging a § 1983 malicious prosecution must show that the
termination of his prosecution was “an affirmative indication
that [the Plaintiff was] innocent of the offense charged.”
Lanning, 908 F.3d at 28. The termination in this case, merely
dropping charges after the suppression of evidence, does not
affirmatively indicate Plaintiff was innocent of the charges
brought. And the D.N.A. results suggest the opposite.
Many courts in the Second Circuit have held similarly. In
Miller v. Cuccia, the Plaintiff brought a § 1983 malicious
prosecution action where his criminal trial was terminated
due to suppression of evidence. The District Court granted
summary judgment to the Defendant in that case, as it found
the suppression of evidence did not constitute termination of
the proceedings in the Plaintiff's favor. The Second Circuit
reviewed that decision, and found that, “The suppression of
the inculpatory evidence [in this case a shotgun, ammunition,
and post-arrest statements by the Plaintiff] does not establish
or imply appellant's innocence because it was not related to or

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based upon the reliability or unreliability of the evidence.” See
Miller v. Cuccia, Nos. 99-7088, 99-7122, 1999 WL 1070084
at *1, 1999 U.S. App. LEXIS 30445 at *3 (2d Cir. Nov. 18,
1999).
*6 Similarly, here it appears the central piece of evidence
to the gun charges, the gun itself, was suppressed due to
either a finding of a lack of probable cause for the stop of
the car or the search of the car. I do not have the opinion of
the New York State suppression court in the record before
me, but in Plaintiff's own complaint he says, “[The] arresting
officers never [ ] had reasonable suspicion or probable cause
to approach their vehicle or search them or their property
therein ... [the] Judge [s]uppressed the evidence.” Pl. Compl.,
23-24, ECF No. 1. Suppression on these grounds does not
relate to the reliability of the loaded gun as evidence of
criminal possession. While Plaintiff does say the gun was not
his in his deposition testimony, the crime is possession, not
ownership, and Defendants provide evidence of a D.N.A. test
performed on the weapon which shows with almost certainty
that Plaintiff's D.N.A. was found on the “slide grip grooves,
slide lock lever and safety” of the gun. See Bannister Dep.,
ECF No. 47-5; D.N.A. Rep., ECF No. 47-9.
As this Court found in Graham v. City of New York, “This
might be a different case if Plaintiff had put forth a wellpleaded allegation that he did not, in fact, possess the gun ...
police recovered from him during the unlawful search.”
See Graham v. City of N.Y., 2018 WL 1157818 at *6,
2018 U.S. Dist. LEXIS 34554 at *18 (E.D.N.Y. 2018). But
Plaintiff did not put forward any allegation that he never
possessed the gun. Meanwhile, Defendants have put forward
strong evidence that Plaintiff did possess the gun. Therefore,
because the prosecution was not resolved in Plaintiff's favor,
Defendants should be granted summary judgment on the
malicious prosecution claim with relation to the gun charges.
Reading Plaintiff's complaint liberally, he has alleged malice
and a lack of probable cause for the bribery charges, based
upon his account of Officer Luis’ statement to him. However,
he provides no details on the circumstances under which
the bribery charges were dismissed, let alone an allegation
that the circumstances were indicative of his innocence.
As Plaintiff bears the burden at trial of proving malicious
prosecution and has not made any allegations regarding a
necessary element of that claim, I recommend summary
judgment be granted to Defendants on all of Plaintiff's federal
malicious prosecution claims.

c. Plaintiff's Complaint Should Be Construed
as Asserting Illegal Stop and Search Claims.
Plaintiff's complaint is not formatted as a formal legal
complaint. Instead, it is a collection of grievances filed by
the Plaintiff to other bodies, including a ten-page factual
summary written by Plaintiff about what happened. This
makes it difficult for Defendants to respond and for the Court
to ascertain which laws Plaintiff is suing under and what legal
claims he is making. However, Plaintiff is proceeding pro
se, and the Court is to read the complaint so as to raise the
strongest arguments it suggests. Therefore, I recommend the
court construe the Plaintiff's complaint as also alleging § 1983
actions for an illegal stop and illegal searches under the Fourth
Amendment.
Section 1983 provides a remedy where the Defendants,
acting under color of state law, have deprived the Plaintiff
of a right secured by the Constitution and laws of the
United States. Cox v. County of Suffolk, 827 F. Supp. 935,
937-38 (E.D.N.Y. 1993). The Fourth Amendment requires
that an officer making a traffic stop “have probable cause or
reasonable suspicion that the person stopped has committed
a traffic violation or is otherwise engaged in or about to be
engaged in criminal activity.” United States v. Gomez, 877
F.3d 76, 86 (2d Cir. 2017).
According to Plaintiff's complaint, Officers Luis and Giuffre
claimed that they stopped the Plaintiff because he was parked
adjacent to a fire hydrant, which is illegal. See Pl. Compl., 19,
ECF No. 1. The Defendants have filed a police report from
the incident, which does not mention a reason for the stop.
See Police Rep., ECF No. 47-8. Plaintiff alleges that he was
not parking near a fire hydrant and that, at the suppression
hearing, the location of the fire hydrant in question was
confirmed to be 85 feet from where Plaintiff was parking the
car. Pl. Compl., 23, ECF No. 1. I believe these facts could
be construed as a claim by Plaintiff of an illegal stop under
§ 1983.
*7 Additionally, the
unreasonable searches.

Fourth

Amendment

prohibits

First, there is the search of Plaintiff himself. Plaintiff says he
was frisked after being asked to step out of the car. For such a
frisk to be reasonable, the officer performing the search must
have reasonably believed Plaintiff was armed and dangerous.
Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889

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(1968). If Plaintiff's version of events is correct, there does not
seem to have been a reason for Officer Giuffre to reasonably
believe at that time that Plaintiff was armed and dangerous,
giving rise to a claim for an illegal search. The officers clearly
had such suspicion once a firearm was located in the car;
however, at the time that Plaintiff was actually searched, the
officers had not yet searched the car and found the firearm.
Second, there is the search of the car. A search of a car
without a warrant is reasonable where there is probable cause
to believe the vehicle contains contraband, an exception to the
warrant requirement known as the “automobile exception.”
United States v. Navas, 597 F.3d 492, 497 (2d Cir. 2010).
Plaintiff claims in his complaint that the Officers Giuffre
and Luis have given varying and contradictory answers as
to what their probable cause was to search the rental car he
was driving. Plaintiff claims that at the grand jury hearing,
Officer Giuffre said Officer Luis searched the car because
they smelled marijuana as they approached it. Pl. Compl, 21,
ECF No. 1. Plaintiff says that at the suppression hearing,
the officers instead testified that they observed a marijuana
cigarette or cigar on or in a cup holder near the center
console in the car. Id. at 22. However, Plaintiff points out, this
contradicts other testimony by the officers that they observed
a “metal object” in the car, which gave them probable cause
to search it. Id. In the police report submitted by Defendants,
it says that Officer Luis observed a .45 caliber semi-automatic
pistol in the center arm rest compartment of the vehicle,
though it does not specify if that observation was made before
or after the search. See Police Rep., ECF No. 47-8. The facts
Plaintiff alleges gives rise to a claim for an illegal search of
the car.
I do not recommend that the Court take a position on whether
these allegations would survive a motion for summary
judgment. These claims are not included the instant motion
and such a motion has not been briefed by the parties. I merely
recommend that the Court construe the complaint to include
these claims and give leave to Defendants to file a motion for
summary judgment on the surviving claims if they elect to do
so.

d. Plaintiff's Complaint Should Be Construed
as Asserting an Excessive Force Claim
I further recommend the Court construe Plaintiff's complaint
to include allegations of excessive force in violation of the
Fourteenth Amendment.

“[T]he right of pretrial detainees to be free from excessive
force amounting to punishment is protected by the Due
Process Clause of the Fourteenth Amendment.” United States
v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). To sustain a claim
of excessive force, pretrial detainees must show “only that
the force purposefully or knowingly used against [them] was
objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S.
389, 396-96, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015).
*8 Plaintiff claims in his complaint that after being arrested
and brought to the precinct for processing, his hands were
tightly handcuffed behind his back. He claims he was then
led up some steep stairs by his handcuffs and later was left
in a cell handcuffed for several hours, during which time he
lost circulation in his hands and arms and began to cry. Pl.
Compl., 18, ECF No. 1. I believe Plaintiff has pled sufficient
facts for the Court to construe his complaint as alleging
unconstitutional excessive force, though I again recommend
the Court take no position on whether such an allegation
would survive a motion for summary judgment.
II. All Potential State Law Claims, With the Exception
of a State Law Malicious Prosecution Claim, Should
Be Dismissed as Time-Barred.
Defendants also argue in their motion that any of Plaintiff's
potential state law claims are time-barred under N.Y. Gen.
Mun. Law §§ 50-e and 50-i (1) because Plaintiff did not
serve notice of claim upon the municipality employing the
Defendants within the required ninety days from when the
claims arose, and because he did not commence an action
within one year and ninety days of the incident. 1 Defendants
say the City did not receive Plaintiff's notice of claim until
October 2, 2018, over two years after the accrual of the claims.
Def. Br., 12, ECF No. 47-3.
1

Though the distinction does not affect this action,
it should be noted that state-law actions to recover
damages for malicious prosecution are governed
by CPLR § 215(3), which sets a one-year statute
of limitations on those actions. NY CLS CPLR §
215(3).

Under New York State Law, a Plaintiff suing a municipality or
its employees acting in their professional capacity is required
to submit a notice of claim within ninety days of the state
law claim arising and bring suit within one year and ninetydays after the event upon which the claims are based. N.Y.
Gen. L. §§ 50-e(1)(a), 50-i (1); Wharton v. County of Nassau,

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No. 07-CV-2137, 2010 WL 3749077 at *9, 2010 U.S. Dist.
LEXIS 99174 at *29-30 (E.D.N.Y. Sep. 20, 2010). Otherwise,
the state law claims must be dismissed.
Here, the stop, search, and arrest at issue took place on May
24, 2016. Pl. Compl., 15, ECF No. 1. The New York City
Comptroller received a notice of claim on October 2, 2018,
well beyond the ninety-day deadline. See Def. R. 56.1 Br., ¶7,
ECF No. 47-2. This action was filed on December 10, 2018,
beyond the one-year and ninety-day deadline set by New York
State law. It does appear Plaintiff filed a complaint with the
State Supreme Court on September 8, 2017 (Pl. Compl., 37,
ECF No. 1) related to the same incident but that complaint
only alleged that the NYPD wrongfully took and held $22,091
from him. Regardless, it too was filed beyond the required
one-year and ninety days.
New York law strictly construes notice of claim requirements,
and, though this is a federal court, we must apply this rule
for New York State claims regardless of whether Plaintiff
intended the Court to exercise jurisdiction over any potential
state law claims as part of its diversity or supplemental
jurisdiction. See Boda v. Phelan, No. 11-CV-0028, 2014
WL 3756300 at *7, 2014 U.S. Dist. LEXIS 104955 at *22
(E.D.N.Y. July 30, 2014); Hardy v. New York City Health &
Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999).
However, in malicious prosecution claims, the cause of
action does not arise until the underlying legal proceeding is
terminated, and the clock on notice and commencement of
action does not start until that point. See Giglio v. Delesparo,
46 A.D.2d 928, 361 N.Y.S.2d 721 (NY App. 1974). Plaintiff
says the charges were dropped against him in September of
2018. Pl. Compl., 25, ECF No. 1. Defendants say the New
York City Comptroller received a notice of claim on October
2, 2018, within 90 days of the termination of the action. Def.
R. 56.1 Br., ¶7, ECF No. 47-2. This legal proceeding was
commenced shortly after, well within the one-year required
under CPLR § 215(3).
*9 Therefore, to the extent Plaintiff brings any state law
claims arising out of this incident, they are time-barred
with the exception of any state law claims for malicious
prosecution. Should Plaintiff wish to assert such a claim, he
should do so with particularity in an amended complaint to
afford Defendants the ability to respond, as such a claim
would be subject to a different standard for “favorable
termination” than a federal malicious prosecution claim.

III. Summary Judgment Should Be Granted on All
Claims Against Defendant Giannina, and He Should
Be Dismissed from the Action
Finally, Defendants ask that the Court dismiss Officer
Giannina from this action because Plaintiff has not alleged his
personal involvement in violations of law.
For a Defendant to be liable under § 1983, he or she must have
been personally involved in the conduct at issue. Singletary
v. Russo, 377 F. Supp. 3d 175, 185 (E.D.N.Y. 2019) (Ҥ 1983
liability requires a showing that ‘each Government-official
defendant, through the official's own individual actions, has
violated the Constitution.’ ”) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
“If no reasonable jury could find a particular defendant
was personally involved in causing a constitutional violation
alleged by plaintiff, then summary judgement should be
awarded to that defendant.” Id.
Plaintiff refers to Mr. Giannina as “transportation officer” in
his complaint. His only mention of the transportation officer
in his complaint is that he was “transported to [the] precinct
by the uniformed transportation officer.” Pl. Compl., 17, ECF
No. 1. As he does not allege any personal involvement by
Mr. Giannina in the conduct he alleges violated his rights,
I recommend Defendants be granted summary judgment on
any claims against Mr. Giannina, and he be dismissed from
this action.

CONCLUSION
For the forgoing reasons, I recommend Defendants’ motion
for summary judgment be granted on the false arrest claim
and malicious prosecution claims, that the Court construe the
complaint as including § 1983 claims for unlawful stop and
search, and excessive force, that any pending state law claims
arising out of this incident be dismissed as time-barred with
the exception of any potential state-law malicious prosecution
claims, and that Defendant Giannina be dismissed from the
action. I also recommend the Court grant Plaintiff leave to
amend the complaint should he be able to allege additional
facts in support of his remaining claims or should he be able to
allege any of his remaining claims with greater particularity.

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OBJECTIONS TO THIS REPORT
AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of
the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from service of this Report and
Recommendation to file written objections. Failure to file
timely objections shall constitute a waiver of those objections
both in the District Court and on later appeal to the United
States Court of Appeals. See Frydman v. Experian Info. Sols.,

Inc., 743 F. App'x 486, 487 (2d Cir. 2018); McConnell v. ABCAmega, Inc., 338 F. App'x 24, 26 (2d Cir. 2009); Tavarez v.
Berryhill, No. 15-CV-5141 (CS) (LMS), 2019 WL 1965832,
at *30 (S.D.N.Y. May 1, 2019); see also Thomas v. Arn, 474
U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
SO ORDERED.
All Citations
Slip Copy, 2022 WL 19402512

End of Document

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2023 WL 2325680
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Henry BANNISTER, Plaintiff,
v.
Detective Marvin LUIS et al., Defendants.
18-CV-7285(EK)(ST)
|
Signed March 2, 2023
Attorneys and Law Firms

connection with these motions. Having reviewed the record,
I agree with the R & Rs’ conclusions and grant summary
judgment to the Defendants on all claims.

I. Background
Judge Tiscione sets forth a factual summary of the case in his
first R & R, which is incorporated herein by reference. 1st R
& R 1–5. I adopt the factual and procedural recitations in the
R & Rs in full; their reasoning except as expressly set forth
below; and I adopt the R & Rs’ conclusions in their entirety.
Familiarity with both R & Rs is assumed.

Henry Bannister, Spartanburg, SC, Pro Se.
Zachary Kalmbach, New York City Law Department, Special
Federal Litigation Division, New York, NY, for Defendants
Detective Marvin Luis, Ryan Giuffre, Police Officer Joseph
Giannina.

MEMORANDUM & ORDER
ERIC KOMITEE, United States District Judge:
*1 The Court has received two Reports and
Recommendations from Magistrate Judge Tiscione in this
case, dated February 16, 2022 and October 28, 2022. Report
& Recommendation (“1st R & R”), ECF No. 49; Report &
Recommendation (“2d R & R”), ECF No. 52. In his first R &
R, Judge Tiscione recommended that Defendants be granted
summary judgment on Bannister's claims of false arrest and
malicious prosecution. 1st R & R 7–11. He also recommended
that Bannister's Complaint be construed as asserting claims
for illegal stop and seizure and excessive force. Id. at 11–14.
Given that the defense had not addressed those claims, Judge
Tiscione received additional briefing, 1st R & R 13, following
which he issued the second R & R. In the second R & R, Judge
Tiscione recommended that Defendants be granted summary
judgment on these latter claims as well. 2d R & R 4–6, 8.
Neither party has filed objections to either R & R, and the
time to do so has expired. See Fed. R. Civ. P. 72(b) advisory
committee's note to 1983 addition; accord State Farm Mut.
Auto. Ins. Co. v. Grafman, 968 F. Supp. 2d 480, 481 (E.D.N.Y.
2013). Moreover, Bannister submitted no initial opposition
to Defendants’ summary-judgment motions, no Rule 56.1
statement, no response to either R & R, and no other filing in

II. Discussion
As noted, Judge Tiscione addressed four claims under 42
U.S.C. § 1983: (1) false arrest; (2) malicious prosecution; (3)
excessive force; and (4) illegal stop and seizure. 1st R & R
6. He also construes the Complaint as raising a number of
potential state-law claims. Id. at 14–16. As Judge Tiscione
noted, the only state-law claim that is not time-barred is
a claim for malicious prosecution. 2d R & R 6. I discuss
each federal claim, as well as Bannister's state-law maliciousprosecution claim, below.
A. Excessive-Force and Illegal-Stop-and-Seizure Claims
I find no clear error in Judge Tiscione's analysis of the
excessive-force or illegal-stop-and-seizure claims. I therefore
adopt those portions of the R & R in their entirety and grant
Defendants summary judgment on those claims.
B. False-Arrest Claim
I agree with the R & Rs’ analysis of the false-arrest claim
and adopt their reasoning in full. I add two observations in
support of the conclusion that the false-arrest claim must be
dismissed.
First, in making his probable-cause determination, Judge
Tiscione applied New York's “presumption of possession,”
which permits — but does not require — the inference that
“all occupants” of a vehicle in which a firearm is discovered
“have common constructive possession” of it. See 1st R &
R 7–8 (citing N.Y. Penal Law § 265.15(3)). This New York
law has a long history in federal litigation: the Second Circuit
found it unconstitutional on its face in 1977, but the Supreme

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Court reversed that holding. See Cnty. Ct. of Ulster Cnty.,
1

N.Y. v. Allen, 442 U.S. 140, 142 (1979). In doing so, the
Court held that the presumption could be constitutionally
applied when “there is a rational connection between the
basic facts that the prosecution proved” — i.e. the location
of the weapon in relation to a vehicle's occupants, and other
circumstances — “and the ultimate fact presumed” — i.e.
common possession. Id. at 165 (emphasis added). The party
seeking to apply the presumption must demonstrate that “the
latter is more likely than not to flow from the former.” Id. at
165.
1

Unless otherwise noted, when quoting judicial
decisions this order accepts all alterations and
omits all citations, footnotes, and internal quotation
marks.

*2 Though the R & Rs do not explicitly assess the rational
connection here, it does exist. At the time he was arrested,
Bannister was sitting in the driver's seat of the vehicle; another
man was in the passenger's seat. 1st R & R 1–2. The firearm
was located in the center console of the vehicle, essentially
equidistant between the two occupants. Id. at 2. No one else
was present in the car. See id. 2
2

As Judge Tiscione notes, the Plaintiff's DNA was
recovered from the firearm, but that recovery of
course occurred substantially after the challenged
arrest. Defs.’ 56.1 Statement ¶¶ 4–5, ECF No. 47-2;
State Court Compl. 2, ECF No. 47-8; Laboratory
Report 1, ECF No. 47-9.

Moreover, the Allen majority's reasoning applies with
even more force here. If the presumption may, in proper
circumstances, be relied upon by a jury charged with finding
guilt beyond a reasonable doubt, then a police officer
assessing probable cause may surely be justified in finding
probable cause based on the same logic. At least one federal
court has applied the presumption in the probable-cause
context. See Matthews v. City of New York, 889 F. Supp. 2d
418, 437 (E.D.N.Y. 2012) (collecting New York state cases
relying on the presumption for probable-cause findings).
Accordingly, I grant Defendants summary judgment on
Bannister's false-arrest claim.
C. Malicious Prosecution Claims
Judge Tiscione construed Bannister's Complaint as asserting
federal and state malicious-prosecution claims with respect

to the weapons charges and the bribery charges on which
he was prosecuted. (For ease of analysis, I will refer to
these claims as the “weapons-arrest claims” and the “briberyarrest claims,” respectively.) He recommends that the state
and federal weapons-arrest claims be dismissed because
probable cause existed for both sets of charges. 1st R & R 9
(federal); 2d R & R 7 (state). He also recommends that the
federal weapons-arrest and bribery-arrest claims be dismissed
because Bannister has failed to adduce sufficient evidence
that his prosecution ended with a favorable termination. 1st
R & R 9–11. (The R & Rs do not, however, explain why the
state bribery-arrest claim should be dismissed.)
Although I agree that all these claims are subject to dismissal,
I order dismissal for different reasons than the R & Rs
recommend.
1. The R & Rs’ Favorable-Termination Analysis Has
Been Superseded by the Supreme Court
In recommending dismissal of Bannister's federal weaponsarrest and bribery-arrest claims, Judge Tiscione relied on
the lack of a favorable termination. 1st R & R 9–11 (citing
Lanning v. City of Glens Falls, 908 F.3d 19, 28 (2d Cir.
2018)). As the R & R recognized, at the time of its issuance,
Second Circuit law required that for purposes of Section
1983 malicious-prosecution claims, a favorable termination
exists only where the disposition of a plaintiff's case shows
“affirmative indications of [his] innocence.” Lanning, 908
F.3d at 25.
But two months after that R & R was issued, the Supreme
Court abrogated that rule in Thompson v. Clark, 142 S. Ct.
1332 (2022): “To demonstrate a favorable termination of a
criminal prosecution for purposes of the Fourth Amendment
claim under § 1983 for malicious prosecution, a plaintiff need
only show that his prosecution ended without a conviction.”
Id. at 1335. That new rule applies to this case. As the Supreme
Court has explained:

When this Court applies a rule of
federal law to the parties before it, that
rule is the controlling interpretation
of federal law and must be given full
retroactive effect in all cases still open
on direct review and as to all events,
regardless of whether such events

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predate or postdate our announcement
of the rule.

*3 Harper v. Va. Dep't of Tax'n, 509 U.S. 86, 97 (1993).
Accordingly, because of the intervening change in law, the
lack of a favorable termination is no longer a basis on which
summary judgment may be granted against Bannister on his
federal malicious-prosecution claims.
2. Probable Cause to Prosecute Existed for the Weapons
Charges, Though Not for the Reasons Stated in the R &
Rs
Nevertheless, the federal and state weapons-arrest claims
must still be dismissed on the basis that there was sufficient
probable cause to initiate that prosecution. However, the R &
Rs’ probable-cause analysis is incorrect with respect to these
claims.
As the R & Rs recognized, “a plaintiff cannot establish a
malicious prosecution claim if there was probable cause for
the prosecution.” Danielak v. City of New York, No. 02CV-2349, 2005 WL 2347095, at *10 (E.D.N.Y. Sept. 26,
2005) (Matsumoto, M.J.) (Section 1983 context), aff'd, 209
F. App'x 55 (2d Cir. 2006); see also Lowth v. Town of
Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996), as amended
(May 21, 1996) (same, under New York law). But “the
existence of probable cause in a malicious prosecution suit
is determined as of the time prosecution is commenced.”
Tuccillo v. County of Nassau, 723 F. App'x 81, 82 (2d Cir.
2018); see also Danielak, 2005 WL 2347095, at *10 (“[A]
claim for malicious prosecution must be evaluated in light
of the facts known or believed at the time the prosecution is
initiated.”).
Both R & Rs assert that probable cause for the prosecution
existed because Bannister's DNA was identified on the
firearm located by the police officers. 1st R & R 9
(federal claim); 2d R & R 7 (state claim). But the
Defendants’ summary-judgment papers indicate that the
criminal complaint was filed on May 25, 2016, while the
DNA testing report was dated April 19, 2017, nearly a year
later. Defs.’ 56.1 Statement ¶¶ 4–5, ECF No. 47-2; State Court
Compl. 2, ECF No. 47-8; Laboratory Report 1, ECF No. 47-9.
Thus, the DNA evidence was not available to the officers
at the time the prosecution was “commenced” and therefore

could not have been a valid basis for probable cause. Tuccillo,
723 F. App'x at 82.
Nevertheless, probable cause to commence the firearms
prosecution remained for the same reasons there was probable
cause to arrest Bannister — namely, Bannister's position in
the driver's seat; the firearm's location in the center console,
within his easy reach; and the rational inference of (at least)
common possession flowing therefrom. See supra section
II.B; 1st R & R 7–8. “If probable cause existed at the time of
arrest, it continues to exist at the time of prosecution unless
undermined ‘by the discovery of some intervening fact.’ ”
Johnson v. Constantellis, 221 F. App'x 48, 50 (2d Cir. 2007);
see also Lowth, 82 F.3d at 571 (probable cause “present at the
time of the arrest” could still “dissipate” if “the groundless
nature of the charges [are] made apparent by the discovery of
some intervening fact”). But Bannister has not pointed to any
such intervening facts here.
*4 Moreover, in his Complaint, Bannister asserted that
he had been indicted for firearms possession. Compl. 19.
That indictment gave rise to a presumption of probable
cause that Bannister has not rebutted. “[U]nder New York
law, indictment by a grand jury creates a presumption of
probable cause that may only be rebutted by evidence that the
indictment was procured by fraud, perjury, the suppression
of evidence or other police conduct undertaken in bad faith.”
Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)
(reversing district court's denial of summary judgment where
plaintiff failed to produce such evidence). In other words,
“for a plaintiff to succeed in a malicious prosecution claim
after having been indicted,” he must produce “evidence
establishing that the police witnesses have not made a
complete and full statement of the facts either to the Grand
Jury or to the District Attorney, that they have misrepresented
or falsified evidence, that they have withheld evidence or
otherwise acted in bad faith.” Rothstein v. Carriere, 373 F.3d
275, 283 (2d Cir. 2004); see also Colon v. City of New
York, 455 N.E.2d 1248, 1250 (N.Y. 1983). Bannister has not
produced any such evidence and, thus, has not overcome this
presumption.
Thus, the weapons-arrest claims must be dismissed.
3. Probable Cause to Prosecute Also Existed for the
Bribery Charges
The R & R recommends dismissal of the federal bribery-arrest
claims for the sole reason that Bannister failed to establish
favorable termination. 1st R & R 11 (“[H]e provides no details

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3

Bannister v. Luis, Slip Copy (2023)
2023 WL 2325680

on the circumstances under which the bribery charges were
dismissed, let alone an allegation that the circumstances were
indicative of his innocence.”). As discussed, that is no longer
a valid basis for dismissal.
Nevertheless, there remains “a lack of evidence to go to the
trier of fact on an essential element of the nonmovant's claim.”
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.
2009). Here, that essential element is the lack of probable
cause, and the lack of evidence in support of that element
entitles Defendants to summary judgment.
Here, Bannister declined to file any response to any of
Defendants’ summary-judgment papers at all; he therefore
has adduced no evidence in support of his claim. On the
contrary, as Judge Tiscione observed, the record contains
evidence showing that Bannister “told Officer Luis he did not
have to bring him in for the gun and that Officer Luis could
keep what was in the car.” 1st R & R 3 (emphasis added). This
uncontested evidence supports the conclusion that the officers
had probable cause to arrest Bannister for bribery.
Thus, Defendants are entitled to summary judgment on
Bannister's federal and state malicious-prosecution claims.

For these reasons, I adopt the R & Rs in part, specifically, with
the addition of the above discussion and with the following
modifications:
• In the first R & R, delete the portion of section I.b starting
with the sentence that begins with “Even if Plaintiff does
plead facts that give rise to malice....” 1st R & R 9–11.
• In the second R & R, Part II, delete the sentence beginning
with “After Plaintiff's arrest, DNA found on the gun,” as
well as the citation that immediately follows. 2d R & R 7.
• In the sentence that follows, replace “during his
subsequent prosecution” with “at the time his subsequent
prosecution was initiated.” Id.
Furthermore, for the foregoing reasons, Defendants are
granted summary judgment on all claims. The Clerk of
Court is respectfully directed to enter judgment in favor of
Defendants, to mail a copy of this Order to Bannister, and to
close this case.
SO ORDERED.
All Citations
Slip Copy, 2023 WL 2325680

III. Conclusion

End of Document

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4

Johnson v. City of New York, Not Reported in Fed. Supp. (2022)
2022 WL 4133284

2022 WL 4133284
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Christopher JOHNSON, Plaintiff,
v.
The CITY OF NEW YORK, Officer Steven Poupos,
Officer Joseph Davin, and John Does 1-2, Defendants.
21-cv-5268 (PKC)
|
Signed September 12, 2022
Attorneys and Law Firms
Cyrus Joubin, Cyrus Joubin, Esq., New York, NY, for
Plaintiff.
Andrea Osgood, New York City Law Department, New York,
NY, Matthew William McQueen, Office of New York City
Comptroller, New York, NY, for Defendants City of New
York, Police Officer Steven Poupos, Police Officer Joseph
Davin.

OPINION AND ORDER
CASTEL, United States District Judge
*1 Plaintiff Christopher Johnson brings section 1983 claims
against defendants Steven Poupos and Joseph Davin, officers
of the New York City Police Department (“NYPD”) (the
“Individual Defendants”), and the City of New York. 1 42
U.S.C. § 1983. Johnson principally claims that he was
deprived of rights protected by the Constitution when he was
arrested and detained, rather than given a desk appearance
ticket, and given a visual body cavity search. Defendants
move to dismiss the Amended Complaint for failure to state
a claim under Rule 12(b)(6), Fed. R. Civ. P. For reasons that
will be explained, the motion will be granted.
1

Plaintiff also named two unidentified officers as
John Doe defendants. Although Johnson sought
and was granted leave to amend his Complaint,
he did not identify the officers who are the John
Doe defendants in the Amended Complaint. The
ninety-day period to serve defendants under Rule
4(m), Fed. R. Civ. P., has expired. The John

Doe defendants will be dismissed from the action
without prejudice.
BACKGROUND
For purposes of the motion, the Court accepts the Amended
Complaint's well-pleaded factual allegations as true, drawing
all reasonable inferences in favor of the non-movant, Johnson.
In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007).
The Amended Complaint alleges that in the early morning
of February 13, 2020, Johnson was driving with a friend in
that friend's car through Harlem. (First Am. Compl't (“FAC”)
(Doc 14) ¶ 10.) At around 1 a.m., Johnson and his friend
were pulled over by NYPD officers Steven Poupos and
Joseph Davin for driving with excessively tinted windows.
(FAC ¶ 11.) The Amended Complaint alleges that Johnson
and his friend, the owner of the car, were ticketed for the
same infraction by different NYPD officers minutes before
being pulled over by Poupos and Davin. (Id. ¶ 12.) Johnson's
friend explained this situation to Poupos and Davin, but
they instructed Johnson and his friend to exit the vehicle
and arrested them both. (Id. ¶¶ 12-13.) Poupos and Davin
“claimed” to find a bag of marijuana and a knife upon
searching Johnson's friend's car. 2 (Id. ¶ 14.)
2

On the date of Johnson's arrest in February
2020, marijuana was included as a schedule one
controlled substance under N.Y. Pub. Health L. §
3306.

Poupos and Davin brought Johnson to the 32nd precinct
where he was processed, fingerprinted, photographed and
detained in a holding cell. (Id. ¶ 15.) The officers performed
a pat-down search on Johnson, felt something, and at that
point Johnson admitted to having three ecstasy pills hidden
inside his underwear and Viagra pills in his pants pocket.
(Id. ¶¶ 16-17.) After performing the pat-down, the officers
asked Johnson whether he was hiding anything in his body
cavities, to which Johnson replied that he was not. (Id. ¶
18.) The Amended Complaint alleges that the Individual
Defendants then strip searched Johnson, cut off his underwear
and performed a visual body cavity search of his anus. (Id.
¶ 19.) This visual body cavity search yielded no contraband.
(Id. ¶ 20.)
*2 After Johnson was searched, he was transported to
Central Booking in lower Manhattan where he was detained
for several hours. (Id. ¶ 23.) Approximately twenty-four
hours after his arrest, Johnson was arraigned in New York

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1

Johnson v. City of New York, Not Reported in Fed. Supp. (2022)
2022 WL 4133284

County Criminal Court, charged with criminal possession
of a weapon in the fourth degree under New York Penal
Law section 265.01, and released on his own recognizance.
(Id. ¶¶ 23, 30.) Johnson claims, among other things, that he
should have been released from the 32nd precinct with a desk
appearance ticket rather than detained until his arraignment.
(Id. ¶ 24.)
PROCEDURAL HISTORY
Johnson filed the present action on June 14, 2021. Johnson
was granted leave to amend his complaint to add a claim for
relief and re-plead certain issues in response to Defendants’
pre-motion letter to dismiss (Docs 9 & 10), and Johnson filed
his Amended Complaint on November 8, 2021 (Doc 14).
Accordingly, the Court assumes that the Amended Complaint
provides the best and strongest formulation of Johnson's
claims.
DISCUSSION
Johnson brings four claims under section 1983 against the
defendants. He alleges that (i) he was strip searched in
violation of the Fourth Amendment, (ii) the decision to detain
him rather than grant him a desk appearance ticket denied him
due process of law, (iii) the Individual Defendants failed to
intervene to prevent the constitutional violations, and (iv) the
City is liable for the constitutional violations. The Court will
address each claim in turn and begins with a discussion of
the legal standard on a motion to dismiss for failure to state
a claim.
A. Legal Standard for a Motion to Dismiss under Rule 12(b)
(6).
Defendants move to dismiss the Amended Complaint
pursuant to Rule 12(b)(6), Fed. R. Civ. P. On a motion to
dismiss, the Court accepts the complaint's well-pled factual
allegations as true and draws all reasonable inferences in favor
of the non-movant. In re Elevator Antitrust Litig., 502 F.3d
47, 50 (2d Cir. 2007). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face’.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nevertheless,
legal conclusions and “[t]hreadbare recitals of the elements
of a cause of action” are not entitled to the presumption of
truth. Iqbal, 556 U.S. at 678. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “The plausibility standard ...

asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. “Under Iqbal, factual allegations must
be sufficient to support necessary legal conclusions.” Ruston
v. Town Bd. For Town of Skaneateles, 610 F.3d 55, 59 (2d
Cir. 2010).
In addition to the allegations contained in the complaint, a
court may properly consider on a motion to dismiss “any
written instrument attached to the complaint, statements or
documents incorporated into the complaint by reference, ...
and documents possessed by or known to the plaintiff and
upon which it relied in bringing the suit.” ATSI Commc'ns,
Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
B. Defendants’ Motion to Dismiss the Illegal Strip Search
Claim will be Granted.
Johnson's first claim is brought under section 1983 for a
strip search in violation of his Fourth Amendment rights.
In particular, Johnson complains of the visual body cavity
search performed by the Individual Defendants while he was
detained at the 32nd precinct. For the following reasons,
Johnson's claim for unlawful strip search is dismissed.
*3 The Fourth Amendment protects individuals against
searches of their person without a warrant. A search incident
to an arrest, however, “constitutes an exception to the warrant
requirement” imposed by the Fourth Amendment. Riley v.
California, 573 U.S. 373, 382 (2014). Nevertheless, there are
limitations upon the scope of an appropriate search incident
to an arrest. Indeed, whether a search incident to an arrest was
lawful turns upon whether such search was “reasonable.” See
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).
Visual body cavity searches in particular are “invasive and
degrading” and a “serious invasion of privacy,” even more
intrusive than a typical strip search. 3 Sloley v. VanBramer,
945 F.3d 30, 38 (2d Cir. 2019). An arresting officer may
only conduct a visual body cavity search if he “has reason
to believe, based on ‘specific and articulable facts ..., taken
together with rational inferences from those facts,’ ... that
an arrestee is secreting contraband inside a body cavity[.]”
Id. (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). To justify
a visual body cavity search “the question is whether the
criminal conduct for which a person was arrested speaks to
the likelihood that he or she secreted contraband inside a
body cavity.” Id. at 39. Indeed, a visual body cavity search
“must be based on reasonable suspicion to believe that the
arrestee is secreting evidence inside the body cavity to be

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2

Johnson v. City of New York, Not Reported in Fed. Supp. (2022)
2022 WL 4133284

searched.” Id. To determine whether a visual body cavity
search was reasonable under the circumstances, “courts also
consider whether the individual's preceding arrest was for a
misdemeanor or felony, whether it involved drugs, whether
the individual would soon be surrounded by other inmates
or arrestees or housed alone, whether the search occurred
privately, and whether the search was performed pursuant to
reasonable suspicion or because of a blanket policy.” Monroe
v. Gould, 372 F.Supp.3d 197, 204 (S.D.N.Y. Mar. 14, 2019)
(citing Gonzalez v. City of Schenectady, 728 F.3d 149, 162
(2d Cir. 2013)).
3

Visual body cavity searches, however, are less
intrusive than manual body cavity searches.
See Monroe v. Gould, 372 F.Supp.3d 197,
204 (S.D.N.Y. Mar. 14, 2019) (comparing strip
searches, visual body cavity searches, and manual
body cavity searches).

Defendants urge the Court to consider body-worn camera
footage which purportedly shows video of the strip search
of Johnson while he was detained. But the Court declines
to do so on a motion to dismiss. The facts as pled in the
Amended Complaint, however, establish that the visual body
cavity search of Johnson was reasonable.
Johnson was arrested after Poupos and Davin “claimed” to
find “a bag of marijuana and a knife” inside the vehicle in
which Johnson was a passenger. (FAC ¶ 13.) Johnson does
not plausibly allege that Poupos and Davin did not actually
find the marijuana and knife in the vehicle, and does not
otherwise challenge the lawfulness of his arrest or that Poupos
and Davin had probable cause to arrest him. After transporting
Johnson to the 32nd precinct, the Individual Defendants
performed a pat-down of Johnson and felt an object or objects
in his underwear, which Johnson then admitted were pills of
ecstasy. (Id. ¶ 17.) Johnson denied concealing any contraband
in his body cavities when asked by the Individual Defendants,
but after finding the ecstasy pills concealed in Johnson's
underwear the Individual Defendants performed a visual body
cavity search of his anus. (Id. ¶¶ 18-19.)
*4 Because (1) the search was pursuant to a lawful arrest,
(2) Poupos and Davin discovered a controlled substance,
marijuana, and a knife during the arrest, (3) Poupos and Davin
found ecstasy pills concealed in Johnson's underwear and
Viagra pills in his pants pocket, and (4) the visual body cavity
search occurred in a holding cell at the 32nd precinct police
station and not in public, the Court concludes that it was not

constitutionally unreasonable for the Individual Defendants
to perform the visual body cavity search.
In arguing that the visual body cavity search was not
reasonable, Johnson relies on Bobbit v. Marzan, 16-cv-2042,
2020 WL 5633000 (S.D.N.Y. Sept. 21, 2020). There, the
body cavity search was held to be unreasonable because the
officer found drugs concealed in the defendant's sock before
performing a body cavity search of the defendant's anus.
Bobbit, 2020 WL 5633000 at *11 (“It is not reasonable to
infer from the discovery of contraband in Plaintiff's sock
that she was also concealing contraband on her body in
locations where it could only be accessed by requiring her
to fully disrobe, squat to expose her private parts, and use
the bathroom, all in view of an officer.”). Here, however, it
was reasonable to suspect that Johnson may be concealing
contraband in his anus after finding drugs hidden inside
his underwear, where the drugs were concealed in close
proximity to his anus and the location of those drugs signaled
his willingness to hide contraband in the region of his privates.
The Court concludes that Johnson has failed to plausibly
allege that the visual body cavity search was unreasonable and
unlawful under the totality of circumstances. Accordingly, the
defendants’ motion to dismiss the claim will be granted.
C. Johnson's Denial of Due Process Claim will be
Dismissed.
Johnson alleges that in violation of his right to due process of
law, Poupos and Davin detained him until arraignment instead
of issuing him a desk appearance ticket. 4 Notably, Johnson
does not assert a claim for false arrest or unlawful seizure, and
Johnson does not contend that Poupos and Davin did not have
probable cause to arrest him or that his arrest was otherwise
unlawful. (See generally FAC.) Rather, Johnson argues that he
was denied his procedural due process rights because he had
a state-created liberty interest in being released with a desk
appearance ticket pursuant to New York Criminal Procedure
Law section 150.20, and that he was deprived of that liberty
interest without due process when the officers detained him
until his arraignment. (See Pl.’s Opp. Mem. at 6.)
4

Although Johnson's pleading does not specify
whether he is alleging a violation of procedural or
substantive due process, his brief asserts a violation
of procedural due process. (See Pl.’s Opp. Mem. at
4-7.)

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3

Johnson v. City of New York, Not Reported in Fed. Supp. (2022)
2022 WL 4133284

The Court will analyze the legal standard to be applied
to Johnson's denial of procedural due process claim. “In
evaluating plaintiff[’s] procedural due process claim, we
analyze ‘(1) whether plaintiffs possessed a protected liberty
or property interest, and, if so, (2) what process plaintiffs were
due before they could be deprived of that interest.’ ” Adams v.
Suozzi, 517, F.3d 124, 127 (2d Cir. 2008) (quoting Sealed v.
Sealed, 332 F.3d 51, 55 (2d Cir. 2003)). “Although some due
process protections stem independently from the Fourteenth
Amendment, state law may also create liberty or property
interests entitled to due process protection.” Sealed v. Sealed,
332 F.3d at 55.
At the outset, the Court notes that Johnson has cited to no
cases which have held that New York Criminal Procedure
Law section 150.20, as amended January 1, 2020, created
a federally protected liberty interest in being released with
a desk appearance ticket when arrested for a misdemeanor
or violation. The Court is also unaware of any cases, either
within the Second Circuit or within the New York state courts,
that have held that section 150.20 created a protected liberty
interest. Generally, a violation of a right protected by state
law does not morph into a federal due process violation. 5
Nevertheless, assuming that section 150.20 does create a
federally protected liberty interest, the Individual Defendants
had probable cause to arrest Johnson for a class D felony for
which he was not entitled to a desk appearance ticket.
5

See, e.g., Wharton v. City of New York, 08-cv-510,
2009 WL 700704, at *2 (E.D.N.Y. Mar. 13, 2009)
(“Plaintiff's § 1983 claims based on violations of
only state law must also be dismissed as § 1983
only applies to the deprivation of federal rights.”);
Daniels v. City of Binghamton, 947 F.Supp. 590,
596 (N.D.N.Y. Nov. 20, 1996) (“[I]t is wellestablished that § 1983 does not provide a remedy
for official conduct that violates only state law.”)

*5 The Court assumes that the first prong of the procedural
due process analysis is met and considers now the second
prong; that is, whether Johnson was afforded appropriate
process pursuant to section 150.20. This first requires a
determination of the process afforded under section 150.20.
Under section 150.20, “[w]henever a police officer is
authorized pursuant to section 140.10 of this title to arrest
a person without a warrant for an offense other than a class
A, B, C or D felony ... he shall ... instead issue to and
serve upon such person an appearance ticket” subject to
certain exceptions, none of which are applicable to the present

circumstances. See N.Y. Crim. P. L. § 150.20. Thus, whether
Johnson was afforded adequate process under section 150.20
depends upon whether Poupos and Davin were “authorized
pursuant to [New York Criminal Procedure Law] section
140.10” to arrest Johnson for “a class A, B, C or D felony[.]”
And whether Poupos and Davin were authorized to arrest
Johnson for a felony pursuant to section 140.10 depends upon
whether Poupos and Davin had “reasonable cause to believe”
that Johnson had committed a felony. See N.Y. Crim. P. L. §
140.20. This necessitates an analysis of probable cause.
“An officer has probable cause to arrest when he or she has
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.” Kee v. City of
New York, 12 F.4th 150, 158 (2d Cir. 2021) (citing Jaegly
v. Couch, 439 F.3d 149, 151-52 (2d Cir. 2006)). “Finely
tuned standards such as proof beyond a reasonable doubt or
by a preponderance of the evidence ... have no place in the
[probable-cause] decision.” Florida v. Harris, 568 U.S. 237,
243-44 (2013) (internal quotations and citations omitted). The
probable cause test “is not reducible to precise definition
or quantification” and instead turns on an evaluation of the
“totality of the circumstances.” Id. “To assess probable cause,
a court considers only the facts ‘available to the officer at
the time of arrest and immediately before it.’ ” Ashley v.
City of New York, 992 F.3d 128, 136 (2d Cir. 2021) (quoting
Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013)).
“Probable cause ... is not a high bar: It requires only the ‘kind
of fair probability on which reasonable and prudent [people,]
not legal technicians, act.’ ” Kaley v. United States, 571 U.S.
320, 338 (2014) (internal citations omitted).
There is no allegation in the Amended Complaint that
Johnson was arrested on February 13, 2020 by the Individual
Defendants without probable cause. 6 Johnson's arrest report
indicates that he was arrested for, among other charges, two
class D felonies: criminal possession of a controlled substance
in the fifth degree under New York Penal Law section 220.06,
and criminal possession of a weapon in the third degree under
New York Penal Law section 265.02. (Doc 19, Ex. B (“Arrest
Report”) at 1.) The Arrest Report is properly considered
in deciding this motion to dismiss. The Arrest Report is a
matter of public record and is considered only to determine
the statements contained therein and not for the truth of the
matters asserted. See Roth v. Jennings, 489 F.3d 499, 509 (2d
Cir. 2007); see also Shmueli v. City of New York, 424 F.3d
231, 233 (2d Cir. 2005). Indeed, “[i]n considering a motion

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4

Johnson v. City of New York, Not Reported in Fed. Supp. (2022)
2022 WL 4133284

to dismiss, the Court may consider ... public records such as
Plaintiff's arrest reports, indictments, and criminal disposition
data.” Corley v. Vance, 365 F.Supp.3d 407, 432 (S.D.N.Y.
Mar. 27, 2019).
6

Johnson only states in a conclusory fashion in his
brief that the Arrest Report charges were “bogus”
and that the officers were not “authorized” to arrest
Johnson on the felony charges. (Pl.’s Opp. Mem. at
4.) The brief makes no claim of a lack of probable
cause to arrest and cites to no authority that would
support such a claim.

Johnson was ultimately arraigned on the charge of criminal
possession of a weapon in the fourth degree, a class A
misdemeanor under New York Penal Law section 265.01,
for allegedly possessing a knife and a Billy club recovered
from the vehicle. (FAC ¶ 30.) Johnson contends that he was
in fact only in violation of a different statute: “a [class A]
misdemeanor under New York Penal [Law] Section 220.03,”
criminal possession of a controlled substance in the seventh
degree. (Pl.’s Opp. Mem. at 4.) These points, however, are
immaterial to the decision on the motion.
*6 Section 150.20, on which Johnson's claim hinges,
provides that a “police officer ... authorized ... to arrest a
person without a warrant for an offense other than a class A,
B, C or D felony ... shall ... instead issue” a desk appearance
ticket. Here, Johnson was arrested for a class D felony,
and, thus, he had no right under section 150.20 to a desk
appearance ticket. The subsequent decision by the prosecutor
to charge him with a misdemeanor and not a felony has no
impact on the probable cause determination by the Individual
Defendants to arrest Johnson for a class D felony.
The Amended Complaint alleges that Poupos and Davin
“claimed” to have found a bag of marijuana and a knife
inside the vehicle in which Johnson was a passenger and
discovered ecstasy and Viagra pills hidden on Johnson's
person, including certain pills concealed in his underwear.
Based on these circumstances, it was reasonable for Poupos
and Davin to believe that Johnson “knowingly and unlawfully
possesse[d] ... a controlled substance with intent to sell it” in
violation of New York Penal Law section 220.06, a class D
felony. The presence of the knife, bag of marijuana, Viagra
pills and concealed ecstasy pills, taken together, established
probable cause for Poupos and Davin to reasonably believe
that Johnson had the requisite “intent to sell” a controlled
substance as is required under section 220.06, a class D
felony.

The Court concludes that Johnson has failed to plausibly
allege that the failure to issue a desk appearance ticket upon
his arrest for a class D felony deprived him of rights protected
by the due process clause of the Fourteenth Amendment. For
this reason, the motion to dismiss Johnson's claim for denial
of due process will be granted.
D. Johnson's Claims for Failure to Intervene and
Municipal Liability Cannot Stand Without an Underlying
Constitutional Violation and Therefore are Dismissed.
Johnson's remaining claims are for failure to intervene and
municipal liability. For the following reasons, both claims are
dismissed.
Johnson's claim for failure to intervene fails because he has
not plausibly alleged a constitutional violation. “A plaintiff
cannot succeed on a claim for failure to intervene under
[section] 1983 when there is no underlying constitutional
violation.” Kayo v. Mertz, 531 F.Supp.3d 774, 799 (S.D.N.Y.
Mar. 31, 2021) (citing Wieder v. City of New York, 569
Fed.App'x 28, 30 (2d Cir. 2014)). Because Johnson's claims
for illegal strip search and denial of due process are dismissed,
the claim for failure to intervene cannot proceed. The motion
to dismiss Johnson's failure to intervene claim will be granted.
Generously construed, Johnson's claim for municipal liability
under section 1983 is brought against the City of New York
pursuant to Monell v. Department of Social Services of the
City of New York, 436 U.S. 658 (1978). As discussed above,
Johnson's claims for the constitutional violations of unlawful
strip search and denial of due process, which underlie
Johnson's Monell claim, are dismissed. “It is well-settled
that a Monell claim cannot succeed without an underlying
constitutional violation, and here there is no constitutional
violation.” Mastromonaco v. Cty. Of Westchester, 779
F.App'x 49, 51 (2d Cir. 2019) (citing City of Los Angeles
v. Heller, 475 U.S. 799 (1986)). Accordingly, the motion to
dismiss Johnson's municipal liability claim will be granted.
CONCLUSION
The Court has considered all arguments presented by the
parties, including those not explicitly addressed herein.
Defendants’ motion to dismiss the Amended Complaint is
GRANTED.
*7 SO ORDERED.

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5

Johnson v. City of New York, Not Reported in Fed. Supp. (2022)
2022 WL 4133284

All Citations
Not Reported in Fed. Supp., 2022 WL 4133284
End of Document

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6

Falls v. (Police Officer) Detective Michael Pitt, Slip Copy (2021)
2021 WL 1164185

KeyCite Yellow Flag - Negative Treatment
Distinguished by Pettiford v. City of Yonkers, S.D.N.Y., September 28,
2022

2021 WL 1164185
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Raiquan K. FALLS, Plaintiff,
v.
(POLICE OFFICER) DETECTIVE MICHAEL PITT;
(Police Officer) Carlos Canario; (Police Officer)
Andres Arestin; (Police Officer) Jonathan Saintiche;
(Police Officer) Sergeant William Anderson; (Police
Officer) John Perez; (Police Officer) Carlos Mendez;
(Nurse) Blanca Lemos; (Nurse Practitioner) Hillary
Durbin-french; (Physician) Alan Madell, Defendants.
16-CV-8863 (KMK)
|
Signed 03/26/2021
Attorneys and Law Firms
Raiquan K. Falls, Brocton, NY, Pro Se Plaintiff.
David L. Posner, Esq., Kimberly H. Lee, Esq., McCabe
& Mack LLP, Poughkeepsie, NY, Counsel for Defendants
Michael Pitt, Carlos Canario, Andres Arestin, Jonathan
Saintiche, John Perez, Carlos Mendez, and William
Anderson.
Milan P. Spisek, Esq., Sean B. Maraynes, Esq., Wilson
Elser Moskowitz Edelman & Dicker LLP, White Plains, NY,
Counsel for Defendants Alan Madell, M.D., Hillary DurbinFrench, N.P., and Blanca Lemos, R.N..

OPINION & ORDER
KENNETH M. KARAS, United States District Judge
*1 Plaintiff Raiquan K. Falls (“Plaintiff”) brought this
Action against seven members of the Newburgh Police
Department (“Police Defendants”) and three members of
the hospital staff at Saint Luke's Cornwall Hospital (“St.
Luke's”) in Newburgh, New York (“Medical Defendants”). 1
Plaintiff alleges various civil rights violations stemming from
his arrest and subsequent treatment while in police custody.

(See generally Second Am. Compl. (“SAC”) (Dkt. No. 111).)
Before the Court are Police Defendants’ Motion for Summary
Judgment, (Dkt. No. 159), Medical Defendants’ Motion for
Summary Judgment, (Dkt. No. 173), and Plaintiff's Partial
Motion for Summary Judgment, (Dkt. No. 183). For the
following reasons, Police Defendants’ Motion is granted
in part and denied in part, Medical Defendants’ Motion is
granted in part and denied in part, and Plaintiff's Motion is
granted in part and denied in part.
1

Police Defendants are Detective Michael Pitt
(“Pitt” or “Detective Pitt”), Police Officer
Carlos Canario (“Canario” or “Officer Canario”),
Police Officer Andres Arestin (“Arestin” or
“Officer Arestin”), Police Officer Jonathan
Saintiche (“Saintiche” or “Officer Saintiche”),
Patrol Sergeant William Anderson (“Anderson” or
“Sergeant Anderson”), Police Officer John Perez
(“Perez” or “Officer Perez”), and Police Officer
Carlos Mendez (“Mendez” or “Officer Mendez”).
Medical Defendants are Doctor Alan Madell
(“Madell” or “Dr. Madell”), Nurse Practitioner
Hilary Durbin-French (“Durbin-French” or “Nurse
Practitioner Durbin-French”), and Nurse Blanca
Lemos (“Lemos” or “Nurse Lemos”).

I. Background
A. Factual History
The Court has described the allegations and procedural
history of this case in two prior Opinions. See Falls v. Pitt,
No. 16-CV-8863, 2020 WL 2097626 (S.D.N.Y. May 1, 2020);
Falls v. Pitt, No. 16-CV-8863, 2018 WL 3768036 (S.D.N.Y.
Aug. 8, 2018). The Court therefore assumes familiarity
with the dispute and will provide factual and procedural
background only as relevant to the instant Motions.
Unless otherwise noted, the following facts are taken from
Plaintiff's Second Amended Complaint, (see generally SAC),
Defendants’ statement pursuant to Local Civil Rule 56.1,
(see Defs.’ Local Civil Rule 56.1 Statement in Supp. of
Mot. (“Defs.’ 56.1”) (Dkt. No. 168)), Plaintiff's Counter
56.1 Statement in Opposition to Defendants’ 56.1, (see Pl.’s
Counter 56.1 Statement in Opp'n to Defs.’ 56.1 (“Pl.’s
Counter 56.1”) (Dkt. No. 204)), and Plaintiff's own statement
pursuant to Local Civil Rule 56.1, (see Pl.’s Local Civil Rule
56.1 Statement in Supp. of Mot. (“Pl.’s 56.1”) (Dkt. No.
183)). 2 3 Defendants have sent the required Local Civil Rule

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56.2 Notice to Plaintiff. (See Police Defs.’ Local Civil Rule
56.2 Not. (Dkt. No. 169); Med. Defs.’ Local Civil Rule 56.2
Not. (Dkt. No. 176).)
2

On July 6, 2020, the Court granted Medical
Defendants’ request to adopt the Local Civil Rule
56.1 Statement submitted by Police Defendants.
(See Dkt. No. 182.)

3

Local Civil Rule 56.1(a) requires the moving
party to submit a “short and concise statement,
in numbered paragraphs, of the material facts
as to which the moving party contends there
is no genuine issue to be tried.” Local Civ. R.
56.1(a). The nonmoving party must then submit “a
correspondingly numbered paragraph responding
to each numbered paragraph in the statement of
the moving party, and if necessary, additional
paragraphs containing a separate, short[,] and
concise statement of additional material facts as to
which it is contended that there exists a genuine
issue to be tried.” Id. at 56.1(b). “If the opposing
party ... fails to controvert a fact set forth in the
movant's Rule 56.1 statement, that fact will be
deemed admitted pursuant to the local rule.” Baity
v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014)
(citation and quotation marks omitted); see also
T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418
(2d Cir. 2009) (same). “A pro se litigant is not
excused from this rule.” Brandever v. Port Imperial
Ferry Corp., No. 13-CV-2813, 2014 WL 1053774,
at *3 (S.D.N.Y. Mar. 13, 2014) (citation and italics
omitted).
Where the Parties identify disputed facts but
with semantic objections only or by asserting
irrelevant facts, the Court will not consider these
purported disputes, which do not actually challenge
the factual substance described in the relevant
paragraphs, as creating disputes of fact. See
Baity, 51 F. Supp. 3d at 418 (“Many of [the]
[p]laintiff's purported denials—and a number of his
admissions—improperly interject arguments and/
or immaterial facts in response to facts asserted
by [the] [d]efendants, often speaking past [the]
[d]efendants’ asserted facts without specifically
controverting those same facts.”); id. (“[A] number
of [the] [p]laintiffs’ purported denials quibble
with [the] [d]efendants’ phraseology, but do not
address the factual substance asserted by [the]

[d]efendants.”); Pape v. Bd. of Educ. of Wappingers
Cent. Sch. Dist., No. 07-CV-8828, 2013 WL
3929630, at *1 n.2 (S.D.N.Y. July 30, 2013)
(explaining that the plaintiff's 56.1 statement
violated the rule because it “improperly interjects
arguments and/or immaterial facts in response
to facts asserted by [the] [d]efendant, without
specifically controverting those facts,” and “[i]n
other instances, ... neither admits nor denies a
particular fact, but instead responds with equivocal
statements”); Goldstick v. The Hartford, Inc., No.
00-CV-8577, 2002 WL 1906029, at *1 (S.D.N.Y.
Aug. 19, 2002) (noting that the plaintiff's 56.1
statement “does not comply with the rule” because
“it adds argumentative and often lengthy narrative
in almost every case[,] the object of which is to
‘spin’ the impact of the admissions [the] plaintiff
has been compelled to make”).
Any party's failure to provide record support for
its challenge to another party's factual statement
could allow the Court to deem the challenged
facts undisputed. See Holtz v. Rockefeller & Co.,
258 F.3d 62, 73 (2d Cir. 2001) (explaining that
the court is not required to search the record
for genuine issues of material fact that the party
opposing summary judgment failed to bring to
the court's attention); Baity, 51 F. Supp. 3d at
418 (collecting cases holding that “responses that
do not point to any evidence in the record that
may create a genuine issue of material fact do
not function as denials, and will be deemed
admissions of the stated fact.” (alteration and
quotation marks omitted)). Therefore, where the
Court cites to only one of the Parties’ Rule
56.1 Statements or Counterstatements, that fact is
materially undisputed unless noted otherwise.
*2 This case stems from a series of events that unfolded
on the evening of May 8, 2015. For conceptual clarity in
resolving the instant Motions, the Court will group these
events into roughly four distinct episodes: (1) Plaintiff's
apprehension and arrest; (2) Plaintiff's body cavity search at
the Newburgh police station; (3) Plaintiff's attempt to swallow
recovered narcotics; and (4) Plaintiff's subsequent treatment
and examination at St. Luke's.

1. Plaintiff's Apprehension and Arrest

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On May 8, 2015 at approximately 5:00 P.M., Plaintiff was
arrested following a pursuit on foot near 15 Lutheran Street in
the City of Newburgh, New York. (SAC ¶¶ 20, 28; Pl.’s 56.1
4

¶¶ 1, 6, 9.) City of Newburgh Police Department Officers
Canario, Perez, and Mendez were dispatched to the area in
response to a 911 call from a nearby resident who reported
ongoing drug sales. (SAC ¶ 20; Pl.’s Counter 56.1 ¶ 11.) 5
By Plaintiff's own admission, the 911 caller “fully describ[ed]
[him] as the suspect selling narcotics[,]” (SAC ¶ 20; see also
Pl.’s Counter 56.1 ¶ 11), and accurately described what he was
wearing, (Pl.’s Counter 56.1 ¶ 13). 6 Plaintiff testified that he
was holding marijuana, which he was “just about to smoke,”
when officers arrived on the scene. (Aff. of David L. Posner,
Esq., in Supp. of Police Defs.’ Mot. (“Posner Aff.”) Ex. K
(“Pl.’s Dep.”), at 19:7–9 (Dkt. Nos. 160, 160-10).)
4

Plaintiff's Rule 56.1 Statement is located at ECF
pages 5–7 of Dkt. No. 183.

5

Plaintiff's Counter 56.1 Statement is located at ECF
pages 223–52 of Dkt. No. 204.

6

Quotations to Plaintiff's submissions occasionally
reflect minor corrections in grammar, punctuation,
and spelling.

ground” and handcuffed by Perez and Mendez, who held
him there for several seconds until Canario, Pitt, Saintiche,
Arestin, and Anderson arrived. (SAC ¶¶ 28–30.) 8 Plaintiff
alleges that the officers then “dragged [him] into a nearby
backyard” behind 12 Dubois Street. (Id. ¶ 31.) There, he
alleges, the officers “overtightened [his] handcuffs to the
point where the metal was press[ing] against and squeezing
[his] wrist bones[,] causing substantial pain and bruising.” (Id.
¶ 32.) He claims the officers then took turns pummeling him
with their “closed fists,” striking Plaintiff in his stomach, ribs,
chest, and thighs. (Id. ¶ 33.) He also claims that the officers
“reach[ed] down inside of [his] pants from the front ... all the
way from [his] underwear to [his] socks.” (Id.)
8

At some point after exiting the patrol car, Officer Canario
began walking toward Plaintiff. (See SAC ¶ 25; Pl.’s Counter
56.1 ¶ 15.) 7 According to Plaintiff's account, Canario
approached him with his hand on his service weapon, yelling,
“Falls, I'll shoot you right in your back if you make me
run!” (SAC ¶¶ 25–26.) Both sides agree that Plaintiff began
to flee as soon as Canario approached him. (Id. ¶ 27; Pl.’s
Counter 56.1 ¶ 15.) Plaintiff avers that the chase “lasted for
about 20 seconds” before he was apprehended. (SAC ¶ 28.)
7

In both his Second Amended Complaint and at
his deposition, Plaintiff stated that Canario first
approached the residence at 15 Lutheran Street and
spoke to a resident on the porch before eventually
walking toward Plaintiff. (See SAC ¶¶ 24–25; Pl.’s
Dep. 33:13–16.)

What happened next is in dispute. According to Police
Defendants, Plaintiff “was captured by Officer Mendez a few
blocks away and arrested without incident.” (Defs.’ 56.1 ¶
16.) They maintain that “[n]o force was used by the arresting
officers beyond restraining him in handcuffs.” (Id. ¶ 17.)
Plaintiff, by contrast, alleges that he was “slammed ... to the

Besides
disputing
Plaintiff's
general
characterization of the arrest, Police Defendants
assert that Anderson, Pitt, and Saintiche were “not
present at the scene of the arrest.” (Defs.’ 56.1
¶ 27.) Although Arestin eventually arrived at the
scene of the arrest, he allegedly did so after Plaintiff
was in custody. (Id. ¶ 28.) Similarly, while Plaintiff
asserts that it was Perez and Mendez who captured
and forced him to the ground, (see SAC ¶¶ 28–
30), Police Defendants maintain that Plaintiff was
initially apprehended by Mendez and Canario, (see
Aff. of Carlos Mendez in Supp. of Mot. (“Mendez
Aff”) ¶ 4 (Dkt. No. 163); Aff. of Carlos Canario in
Supp. of Mot. (“Canario Aff.”) ¶ 5 (Dkt. No. 165)),
and that Perez arrived a few moments thereafter,
(see Aff. of John Perez in Supp. of Mot. (“Perez
Aff.”) ¶¶ 3–4 (Dkt. No. 162)).

*3 Plaintiff was eventually placed in a patrol car and driven
to the Newburgh police station. (See Defs.’ 56.1 ¶¶ 29–30;
SAC ¶ 35.) Although Plaintiff claims he was seated in the
back seat between two detectives who interrogated him on the
ride to the police station, (see SAC ¶¶ 35–36), video evidence
shows there was no one else in the car besides Perez, the
driver, and Plaintiff, (Defs.’ 56.1 ¶¶ 30–31; Posner Aff. Ex. C
(“Secure Bay Video”), at 5:26:35–5:27:39). 9
9

All videos discussed in this Opinion were
transmitted by DVD as Exhibit C to the Posner
Affidavit, and are on file with the Court. In this
Opinion, each video is identified by the title of the
camera angle as it appears on the DVD.

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2. Police Defendants’ Cavity Search
at the Newburgh Police Station
Video footage shows that after arriving at the police station,
Plaintiff spent approximately half an hour waiting in the
booking room. (Defs.’ 56.1 ¶ 34; Booking 1 Video at 5:28:02–
6:00:40.) During this time, Plaintiff can be seen sitting, lying
down, and occasionally interacting with Canario and other
officers. (Defs.’ 56.1 ¶ 34; Booking 1 Video at 5:28:02–
6:00:40.) Eventually, Sergeant Anderson authorized a “visual
body cavity search” of Plaintiff. (Defs.’ 56.1 ¶ 36.) 10 He
allegedly did so for two reasons: first, Plaintiff had been
arrested in a part of Newburgh “known to be rife with drug
activity”; and second, “[s]treet dealers such as [Plaintiff]
are known to ‘cheek’ drugs,” placing them “between the
cheeks of their buttocks to avoid detection.” (Id. ¶¶ 38–
39; Anderson Aff. ¶¶ 3–4.) Police Defendants maintain
that “drugs are often recovered at the police station during
visual body cavity searches.” (Defs.’ 56.1 ¶ 40.) The search
authorized by Anderson was not without limit, however.
According to Police Defendants, “there is no touching or
digital penetration of a body orifice[ ]” during a “visual
body cavity search.” (Id. ¶ 41; Pl.’s Counter 56.1 ¶ 41.) The
Newburgh Police Department's internal strip-search policy
“requires a search warrant for digital penetration of a body
orifice,” and such an examination must be performed by
medical staff. (Defs.’ 56.1 ¶ 42; Pl.’s Counter 56.1 ¶ 42.)
10

The Court notes at the outset that the terminology
used to describe different types of invasive body
searches is often imprecise and inconsistent. This
observation applies to the relevant case law as
well as to Defendants’ various submissions. For
example, although Defendants’ 56.1 statement
refers to the authorized search as a “visual
body cavity search,” (see Defs.’ 56.1 ¶¶ 36–
37), Sergeant Anderson refers to the search
alternatively as a “strip search,” (see Aff. of
William Anderson in Supp. of Mot. (“Anderson
Aff”) ¶¶ 2, 9 (Dkt. No. 161)), and as a “visual body
cavity inspection,” (id. ¶ 7), and the Newburgh
Police Department's official strip search policy
recognizes only two types of searches—a “strip
search” and a “body cavity search,” the latter
of which must be performed “by a physician
or ... other medically trained personnel at the
physician's direction,” (Posner Aff. Ex. G (“Strip

Search Policy”), at 1–2, 3 (Dkt. No. 160-6)).
Thus, although Defendants claim that Anderson
authorized a “visual body cavity search,” Plaintiff,
relying on the Newburgh Strip Search Policy,
maintains that Anderson authorized only a “strip
search.” (See Pl.’s Counter 56.1 ¶ 36.) Plaintiff has
a valid point in this regard, for the department's
strip search policy does not contain an explicit
category labeled “visual body cavity search.” In
truth, however, the Parties appear to be talking
past one another. Although Defendants refer to
the search using different terms, it seems apparent
that Anderson authorized a search that included
an invasive look at Plaintiff's genitals and body
cavity, but which did not include any touching. (See
Anderson Aff. ¶¶ 7–8; Pl.’s Counter 56.1 ¶¶ 41–
42.)
*4 At approximately 6:00 P.M., Officers Canario and
Saintiche escorted Plaintiff into a separate room—without
video cameras—to perform the search. (Defs.’ 56.1 ¶ 43; see
also SAC ¶¶ 44–45.) In affidavits submitted in support of
Police Defendants’ Motion, Canario and Saintiche state that
Plaintiff initially went along with the strip search protocol,
removing one article of clothing at a time until he was
completely naked. (Canario Aff. ¶ 13; see also Aff. of
Jonathan Saintiche in Supp. of Mot. (“Saintiche Aff.”) ¶ 6
(Dkt. No. 167) (stating that Plaintiff was initially “cooperative
with the process”).) But although Plaintiff agreed to “lift his
genitals for visual inspection[,]” he “refused to turn around,
bend over[,] and spread his buttocks.” (Canario Aff. ¶ 13;
see also Saintiche Aff. ¶ 6 (stating that Plaintiff “balked at
turning around, squatting[,] and spreading the cheeks of his
buttocks”).) In response, Canario and Saintiche gave Plaintiff
“several loud verbal commands to comply[.]” (Canario Aff.
¶ 13; see also Saintiche Aff. ¶ 6 (“[N]o amount of verbal
instruction from us could gain [Plaintiff's] cooperation.”).)
Around this time, Pitt and Arestin entered the room
“because they heard indications that [Plaintiff] was being
uncooperative.” (Defs.’ 56.1 ¶¶ 45–46.)
Each of the four officers in the room provides essentially
the same account of what happened next. In their telling,
Pitt and Saintiche each took one of Plaintiff's arms and
“held him facing the wall.” (Canario Aff. ¶ 15; Saintiche
Aff. ¶ 7; see also Aff. of Michael Pitt in Supp. of Mot.
(“Pitt Aff.”) ¶ 7 (Dkt. No. 164); Aff. of Andres Arestin
in Supp. of Mot. (“Arestin Aff.”) ¶ 4 (Dkt. No. 166).) At
that point, according to the officers, Plaintiff voluntarily
squatted, and “a small plastic bag drop[ped] from his rectal

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area.” (Canario Aff. ¶ 15; see also Saintiche Aff. ¶ 7; Pitt.
Aff. ¶ 7; Arestin Aff. ¶ 4; Defs.’ 56.1 ¶ 47 (“While naked and
squatting a small plastic bag later determined to [be] cocaine,
fell from [Plaintiff's] rectal area, observed by both Arestin
and Canario.”).) They maintain that “[n]one of the four
[D]efendants with [Plaintiff] in the strip search room digitally
penetrated his rectum.” (Defs.’ 56.1 ¶ 48.) Accordingly, “[t]he
only physical contact between [Plaintiff] and any of the
four officers in the room was the contact [o]fficers Pitt and
Saintiche had with [Plaintiff's] arms.” (Canario Aff. ¶ 16; see
also Saintiche Aff. ¶ 8; Arestin Aff. ¶ 5.) In this version of
events, “there was no physical struggle.” (Arestin Aff. ¶ 5;
see also Saintiche Aff. ¶ 8 (“[Plaintiff] was not thrown to the
ground or into the wall or punched by Detective Pitt.”).)
Plaintiff has given a different account of what happened.
He alleges that Pitt and Saintiche “slammed [him] onto the
floor face first,” whereupon Pitt “punched [him] directly on
the right side of [his] face between [his] right ear and right
eye,” that is, “on [his] temple.” (SAC ¶¶ 59–60.) Plaintiff
alleges that his “head bounced off the floor[,] and Pitt then
immediately pinned [Plaintiff's] face against the floor with
force.” (Id. ¶ 61.) “While [his] head was pinned against the
floor by Pitt,” Plaintiff explains, “Saintiche, Canario[,] and
Arestin then began punching and kneeing [him] in [his] ribs
in a rapid motion.” (Id. ¶ 62.) Plaintiff “[t]hen ... felt one of
these officers forcefully penetrate [his] anal cavity and snatch
the plastic sandwich baggie containing the white-rock like
substance [he] had hidden there.” (Id. ¶ 63.) After the officers
had recovered the contraband, they allegedly threw Plaintiff's
clothes at him and left the strip search room. (Id. ¶ 64.)

3. Plaintiff's Attempt to Swallow
Contraband and the Ensuing Scuffle
Security camera footage from the booking room shows what
happened next. A few moments after being brought back
into the booking room and having one ankle shackled to a
bench, Plaintiff leapt toward Officer Canario and snatched
from his hands the contraband that had been recovered in
the strip search room. (See Pl.’s Counter 56.1 ¶¶ 54, 57;
Booking 1 Video at 6:17:35.) The ensuing scuffle is described
in detail in Section II.B.2.c infra. In brief, Plaintiff stuffed
the contraband in his mouth in an attempt to “eat” the drugs
and thereby destroy the evidence. (See Pl.’s Counter 56.1 ¶
57; Pl.’s Dep. 70:16–17 (“[M]y intent was to eat it, yes.”);
id. 70:18–20 (Q: “You thought by doing that you would
destroy that evidence? A: “Yes.”); SAC ¶ 66 (stating that he

placed the drugs in his mouth “intending to chew and destroy
it”).) Officer Canario tackled Plaintiff, and Pitt, Saintiche,
and Arestin rushed to restrain Plaintiff on the ground and pry
the contraband from his mouth. (See Pl.’s Counter 56.1 ¶¶
58–60; Booking 1 Video at 6:17:37–49.) About 12 seconds
later, as the officers continue struggling to subdue Plaintiff
and recover the drugs, Canario uses pepper spray on Plaintiff.
(See Booking 1 Video at 6:17:49.) The struggle continues for
approximately 20 more seconds until Arestin uses his taser
on Plaintiff, (see id. at 6:18:11), and the officers are finally
able to restrain Plaintiff's hands in handcuffs and retrieve the
contraband from his mouth, (see id. at 6:18:16).
*5 The video footage of this episode substantially
undermines Plaintiff's version of events outlined in the
Second Amended Complaint. Plaintiff, for example, alleges
that he was pepper sprayed “[a]s soon as [he] hit the
floor,” (SAC ¶ 69), and was “punched and kneed in [his]
ribs,” (id. ¶ 71), both of which are belied by the footage. He
also alleges that he spit out the contraband within 20 seconds
from when he first snatched it from Canario's hands. (Id. ¶ 70.)
Again, the video proves otherwise. And finally, he alleges that
Arestin used the taser on him when he was lying face-down
on the floor with “[his] hands on [his] head, not resisting at
all.” (Id. ¶ 72.) As with his other allegations from this incident,
this statement is not true.
Finally, Canario avers that at some point before he and
Saintiche took Plaintiff to St. Luke's, see Part I.A.4 infra,
Plaintiff told him that “he had more drugs inside his rectum
but they were too far in and [the police] would not be able
to get them.” (Canario Aff. ¶ 25.) Canario advised Pitt and
Sergeant Anderson about these remarks. (Id.) Plaintiff denies
that he made such a comment. (See Pl.’s Decl. in Supp. of
Mot. for Partial Summ. J. (“Pl.’s Decl.”) ¶¶ 23, 25 (Dkt. No.
183).) 11
11

Plaintiff's Declaration is located at ECF pages 1–4
of Dkt. No. 183.

4. Medical Treatment and Examination at St. Luke's
Shortly after the events just described, Canario and Saintiche
drove Plaintiff to St. Luke's. (SAC ¶ 75; Pl.’s Counter 56.1 ¶
74.) The Parties agree that at the hospital, Plaintiff received
medical care to have the residual pepper spray washed from
his eyes and to have the taser barbs removed from his lower
back. (See SAC ¶ 83; Posner Aff. Ex. D (“ER Records”), at 8

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(Dkt. No. 160-3); Posner Aff. Ex. L (“Madell Aff'n”) ¶¶ 15,
12

20 (Dkt. No. 160-11).)
But at this point in the narrative,
the Parties’ respective accounts of the evening diverge
significantly. As discussed below, Defendants maintain there
were two separate visits to the hospital—an initial visit in
which medical staff rinsed Plaintiff's eyes and removed the
taser barbs from his lower back, and a subsequent visit later
in the evening in which medical staff performed a manual
body cavity search and x-ray examination pursuant to a search
warrant. But according to Plaintiff, only the initial visit took
place, and the cavity search and x-ray were performed without
the search warrant, which was not obtained until later in the
evening.
12

Citations to Plaintiff's medical records refer to the
ECF stamp at the top of the page.

a. Defendants’ Version of Events at St. Luke's
According to Defendants, Dr. Alan Madell treated Plaintiff
during his first visit to St. Luke's, which took place between
approximately 6:50 P.M. and 7:40 P.M. (See Defs.’ 56.1 ¶¶
108, 113.) During this visit, medical staff rinsed Plaintiff's
eyes with water to remove any residual pepper spray,
(see Madell Aff'n ¶¶ 11–12), and Dr. Madell removed the
taser barbs, cleansed the area with antiseptic, and applied
antibacterial ointment and a bandage, (see id. ¶ 20). Dr.
Madell also conducted a “head to toe” examination of
Plaintiff and observed no signs “of trauma, such as bruising,
contusions[,] or reflexes of pain.” (Id. ¶ 24.) According to Dr.
Madell, Plaintiff “denied any neck pain, back pain[,] or any
other complaints except for eye pain.” (Id. ¶ 13.) The first visit
ended sometime between around 7:25 P.M. and 7:40 P.M. (See
Defs.’ 56.1 ¶¶ 81, 113.)
Meanwhile, Pitt prepared a search warrant application based
on Plaintiff's alleged statement that he was secreting more
drugs inside his body cavity or stomach. (See Pitt. Aff. ¶
14; Anderson Aff. ¶¶ 9–10.) Obtaining a search warrant
would allow the police to have Plaintiff's anal cavity manually
examined by hospital personnel. (See Pitt Aff. ¶ 14; Anderson
Aff. ¶ 8.) Pitt prepared an affidavit in support of the search
warrant, noting in part that police had already recovered
contraband from Plaintiff's “rectum area” during a “strip
search,” and that Plaintiff had “made a statement that he
does have more narcotics in his rectum.” (Posner Aff. Ex.
I (“Search Warrant & Supporting Aff.”), at 4 (Dkt. No.
160-8).) 13 Pitt's affidavit was presented to the Honorable

Judge E.L. Williams of the Newburgh City Court (“Judge
Williams”), who issued the requested search warrant. (See Pitt
Aff. ¶ 14; Search Warrant & Supporting Aff. 2.) Pitt delivered
the search warrant to St. Luke's and “gave it to its medical
personnel.” (Pitt Aff. ¶ 14; Canario Aff. ¶ 27.)
13

Citations to Police Defendants’ Exhibit I refer to
the ECF stamp at the top of the page.

*6 Having obtained a search warrant, Canario and Saintiche
took Plaintiff to St. Luke's once again, arriving around 11:00
P.M. (Defs.’ 56.1 ¶ 84.) After a triage nurse took Plaintiff's
vital signs, Nurse Blanca Lemos received Plaintiff in “Bay
5.” (Posner Aff. Ex. M (“Lemos Aff.”) ¶¶ 7–8 (Dkt. No.
160-12).) However, it was Nurse Practitioner Hillary DurbinFrench who actually examined Plaintiff. (See Defs.’ 56.1 ¶¶
119, 136–39.) Durbin-French is “trained to do rectal exams”
and has performed “countless” such searches over the course
of her career. (Posner Aff. Ex. N (“Durbin-French Aff.”) ¶ 18
(Dkt. No. 160-13).) Having been shown the search warrant,
Durbin-French asked Plaintiff to cooperate with the rectal
examination. (Id. ¶¶ 20, 23.) Although he initially refused
to consent to the search, Plaintiff eventually turned over on
his side and voluntarily “pulled down his pants and agreed
to the examination.” (Id. ¶ 23.) Donning examination gloves
and a “liberal amount of lubricant,” Durbin-French quickly
inserted her forefinger into Plaintiff's rectum and “palpate[d]
for abnormalities.” (Id. ¶ 19.) She identified no foreign body.
(Id. ¶ 21.)
After performing this search, Durbin-French ordered a
“KUB” (kidney, ureter, and bladder) x-ray examination to
ensure that there were no foreign objects “further in the rectal
cavity.” (Id. ¶ 24.) Durbin-French states that an x-ray was
performed because “good medical practice requires” it, and
“not because a police officer requested it.” (Id. ¶¶ 24–25.)
At 1:30 A.M., Durbin-French reviewed the x-rays, which
indicated there was no foreign body inside Plaintiff. (Id. ¶
28.) Plaintiff was discharged back into police custody at
approximately 1:40 A.M. on May 9, 2015. (Defs.’ 56.1 ¶ 118.)

b. Plaintiff's Version of Events at St. Luke's
Plaintiff agrees that he initially arrived at St. Luke's at
around 6:50 P.M. (See SAC ¶ 75.) Plaintiff states that
his “emergency room doctors” were Dr. Madell and Nurse
Practitioner Durbin-French. (Id. ¶ 76.) He alleges that he
did complain about additional injuries he had sustained—

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including injuries to his wrists, (see Pl.’s Dep. 50:20–52:4),
and face, (id. at 104:18–105:15)—but that Dr. Madell and
Durbin-French “caused [his] complaints to go ignored,” (SAC
¶ 77). After Plaintiff changed into a hospital gown and
was handcuffed to a gurney, Officers Canario and Saintiche
left the room “to go find medical personnel.” (SAC ¶ 80.)
Plaintiff then “overheard Canario and Saintiche saying to
someone out in the hallway” that they had a “search warrant
for [Plaintiff's] rectum,” that they had observed Plaintiff
“swallowing drugs,” and that Plaintiff had told them he had
more drugs hidden in his rectum. (Id. ¶ 81.) Plaintiff alleges
that “[a]t about 6:52 P.M.,” Nurse Lemos informed him that
“she was given authorization to search [his] body cavity.” (Id.
¶ 84.) 14 Plaintiff allegedly tried to show Lemos the “vis[i]ble
bruises on [his] face and [his] wrists,” told her that it felt as
though his neck and back were broken, and explained that he
was experiencing “sharp pains in [his] rectum” from having
the police manually extract the contraband. (Id. ¶ 86.) But
Lemos “ignored [him]” and told him that the police “ha[d] a
search warrant and ... [could] use deadly force” to ensure his
compliance with the search. (Id. ¶¶ 86, 88.) Officers Canario
and Saintiche reportedly told Plaintiff that the taser barbs and
pepper spray would not be removed unless he complied with
the search. (Id. ¶ 90.) Then, the officers allegedly forced him
onto one side and pinned him to the hospital bed as Nurse
Lemos “pulled [his] pants down and penetrated [his] rectum
without any lubrication for about [five] seconds.” (Id. ¶¶ 92–
93.)
14

As discussed in Section II.B.7.a infra, Nurse
Lemos's timesheet for the evening of May 8, 2015
indicates that she did not clock in until 10:45 P.M.,
(see Lemos Aff. ¶ 5 & attached timesheet), posing
something of a problem for Plaintiff's narrative that
she performed his rectal examination during his
first and only visit to the hospital.

*7 After Lemos announced that there were no drugs in
Plaintiff's cavity, Canario and Saintiche allegedly “suggested”
that Lemos should perform an x-ray examination. (Id. ¶¶ 96–
97.) Plaintiff allegedly had his “stomach/abdomen” x-rayed
at 7:00 P.M., after which Lemos removed the taser barbs from
his back and washed the pepper spray from his eyes. (Id.
¶¶ 98–100.) At around 7:35 P.M., Lemos returned with the
results of the x-ray and reported that there were no “unknown
substances” inside Plaintiff's stomach, and said that Plaintiff
was ready to be discharged. (Id. ¶ 101.)

Although there is a discharge release form in Plaintiff's
medical records indicating that he was discharged at 1:35
A.M. on May 9 following the rectal examination and x-ray,
(see ER Records 36), Plaintiff maintains that this form has
been forged, (see SAC ¶ 102). Indeed, Plaintiff alleges that
to the extent his medical records clearly indicate there were
two visits to St. Luke's, thereby corroborating Defendants’
version of events, these records have been forged or falsified.
(See id. ¶¶ 112, 137.) Likewise, Plaintiff alleges that Pitt
fabricated his statement that he was concealing additional
drugs, and then used this fabricated evidence not only to
obtain a search warrant, but also to “build[ ] a stronger case
for the prosecution.” (Id. ¶¶ 108–09.) According to Plaintiff's
theory, the search warrant obtained from Judge Williams was
“brought back to the hospital by Canario and Saintiche so that
they could conspire with ... Lemos and Durbin-French to ...
cover-up the fact that [Plaintiff] was illegally” subjected to a
manual body cavity search and x-ray before the warrant was
obtained. (Id. ¶ 111.) These Defendants allegedly conspired
“to record[ ] these events as if they [had] happened” during
a non-existent second visit later in the evening, around 11:00
P.M., and to doctor the records such that the first visit only
documented treatment of Plaintiff's back and eyes. (See id.)
Based on the foregoing events, Plaintiff has brought claims
against Police Defendants for false arrest (Count One),
excessive force (Counts Two, Five, and Eight), sexual
harassment and sexual abuse (Counts Three and Four),
an unreasonable search (Count Six), deliberate indifference
(Count Seven), and malicious abuse of process (Count 10). 15
Against Police Defendants and Medical Defendants, Plaintiff
has brought claims for sexual harassment and sexual abuse
(Counts 12 and 13), unreasonable searches (Counts 15 and
16), and conspiracy (Counts 14 and 20). Against Medical
Defendants alone, Plaintiff has brought claims for violation
of his right to privacy (Count 17) and deliberate indifference
(Counts 18 and 19).
15

As discussed in Section II.B.6 infra, the Court
has construed Plaintiff's malicious abuse of process
claim as a claim for denial of his right to a fair trial.

B. Procedural History
Plaintiff filed his initial Complaint on November 15, 2016
against Arestin, Pitt, Canario, Saintiche, and “Registered
Nurse Jane Doe.” (Compl. (Dkt. No. 2).) On November 17,
2016, Plaintiff's application to proceed in forma pauperis
was granted. (See Dkt. No. 4.) On November 18, 2016,
the Court directed the County Attorney for the County of

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Orange to ascertain the identity of the Jane Doe nurse at St.
Luke's involved in the events on May 8, 2015. (See Dkt. No.
6.) On February 7, 2017, Plaintiff submitted the Amended
Complaint, (see Am. Compl. (Dkt. No. 22)), along with a list
of parties in the Amended Complaint, (see Dkt. No. 19). The
Amended Complaint added Dr. Madell, Nurse Practitioner
Durbin-French, Nurse Lemos, Sergeant Anderson, Officer
Perez, and Officer Mendez as Defendants. (See Am. Compl.)
On April 27, 2017, Plaintiff submitted an application asking
the Court to appoint pro bono counsel to represent him. (See
Dkt. No. 26.) On May 2, 2017, the Court denied the request
without prejudice. (See Dkt. No. 27.)
*8 On October 6, 2017, Madell and Durbin-French moved
to dismiss all claims filed against them (the “Motion To
Dismiss”). (See Dkt. Nos. 64–66.) Plaintiff failed to file an
opposition or otherwise respond, (see Dkt. No. 80), and on
January 22, 2018, the Court deemed the Motion To Dismiss
fully submitted, (see Dkt. No. 81).
Meanwhile, discovery proceeded as to the other Defendants.
Following the completion of discovery, on July 9, 2018,
Police Defendants sought leave to file a summary judgment
motion. (See Dkt. No. 101.) The same day, Medical
Defendants sought leave to file a summary judgment motion,
but noted that the decision on Madell and Durbin-French's
Motion To Dismiss was still pending. (See Dkt. No. 102.)
On July 18, 2018, the Court set a briefing schedule for all
Defendants to file summary judgment motions. (See Dkt. No.
104.)
On August 8, 2018, the Court issued an Opinion & Order
granting Madell and Durbin-French's Motion To Dismiss.
(See Op. & Order (“Aug. 2018 Op.”) (Dkt. No. 109).)
However, the Court granted Plaintiff 30 days to amend his
complaint and correct the deficiencies with respect to the
dismissed claims. (See Aug. 2018 Op. 15.) On September
6, 2018, Plaintiff signed his Proposed Second Amended
Complaint (“PSAC”), which was docketed on September 11,
2018. (See Dkt. No. 111.) On September 14, 2018, Police
Defendants filed a letter objecting to the PSAC on the grounds
that it “purports to assert new matters and claims with regard
to them ... without leave of the Court on the eve of summary
judgment practice.” (See Dkt. No. 113.) On November
7, 2018, the Court issued an Order construing Plaintiff's
PSAC as a Motion To Amend, and setting a schedule
for Police Defendants’ Response and Plaintiff's Reply. (See
Order (“Nov. 2018 Order”) (Dkt. No. 125).) The Court
simultaneously stayed the briefing of Defendants’ expected

summary judgment motions pending resolution of Plaintiff's
Motion To Amend. (See id. at 5.) On December 4, 2018,
Police Defendants filed their Response and accompanying
papers. (See Dkt. Nos. 126–27.) On February 26, 2019,
Plaintiff filed his Reply. (See Dkt. No. 133.) On April 23,
2020, Plaintiff filed a “Declaration in Support of the Plaintiff's
Motion for Appointment of Counsel,” (Dkt. No. 146), thereby
renewing his earlier (previously rejected) Application for
appointment of pro bono counsel, (see Dkt. No. 26).
On May 1, 2020, the Court issued an Order granting in
part and denying in part the Motion To Amend and denying
Plaintiff's renewed Application for appointment of pro bono
counsel. (See Order (“May 2020 Order”) (Dkt. No. 147).) The
Court found that two of the claims raised in the PSAC—a First
Amendment retaliation claim and a malicious prosecution
claim—were never raised in the Amended Complaint. (See
id. at 9 & n.2.) The Court also concluded that neither
claim satisfied the standard that governs motions to amend
under Fed. R. Civ. P. 15(a). (See id. at 10–14.) Finally, the
Court denied Plaintiff's renewed Application for appointment
of pro bono counsel, observing in part that “Plaintiff has
demonstrated his ability to present the case himself through
his submissions in this Action that adequately express his
arguments and desired forms of relief.” (Id. at 16–17.) Having
deemed the PSAC the new operative complaint (henceforth
the Second Amended Complaint), the Court lifted the stay
on Defendants’ Motions for Summary Judgment and set a
briefing schedule. (See id. at 17.)
*9 After the Court granted Defendants a 30-day
adjournment in light of the Covid-19 pandemic, (see Dkt. No.
150), and granted their request for a page extension on their
Memorandum of Law, (see Dkt. No. 155), Police Defendants
and Medical Defendants filed their Motions for Summary
Judgment and supporting papers on July 1, 2020, (see Police
Defs.’ Not. of Mot. (Dkt. No. 159); Med. Defs.’ Not. of
Mot. (Dkt. No. 173)). Plaintiff filed a cross-Motion for Partial
Summary Judgment on July 7, 2020. (See Dkt. No. 183.)
Police Defendants filed their Opposition to Plaintiff's Motion
on August 10, 2020. (See Dkt. No. 193.) After receiving
multiple extensions from the Court, (see Dkt. Nos. 191,
200), Plaintiff filed his Opposition to Defendants’ Motions
on October 23, 2020, (see Dkt. No. 204). Police Defendants
submitted their Reply on November 19, 2020, (see Dkt. No.
207), and, after receiving an extension from the Court, (see
Dkt. No. 210), Medical Defendants submitted their Reply on
December 11, 2020, (see Dkt. No. 212). Plaintiff failed to

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submit a Reply in further support of his Partial Motion for
Summary Judgment.

II. Discussion
A. Standard of Review
Summary judgment is appropriate where 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.” Fed.
R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc.,
748 F.3d 120, 123–24 (2d Cir. 2014) (same). “In determining
whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the nonmoving party and ... resolve all ambiguities and draw all
reasonable inferences against the movant.” Brod v. Omya,
Inc., 653 F.3d 156, 164 (2d Cir. 2011) (citation omitted);
see also Borough of Upper Saddle River v. Rockland Cnty.
Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014)
(same). “It is the movant's burden to show that no genuine
factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram
Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v.
Marchinkowski, 137 F. Supp. 3d 495, 521 (S.D.N.Y. 2015)
(same).
“However, when the burden of proof at trial would fall on
the nonmoving party, it ordinarily is sufficient for the movant
to point to a lack of evidence to go to the trier of fact on an
essential element of the nonmovant's claim,” in which case
“the nonmoving party must come forward with admissible
evidence sufficient to raise a genuine issue of fact for trial
in order to avoid summary judgment.” CILP Assocs., L.P.
v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d
Cir. 2013) (citation, alteration, and quotation marks omitted).
Further, “[t]o survive a [summary judgment] motion ..., [a
nonmovant] need[s] to create more than a ‘metaphysical’
possibility that his allegations were correct; he need[s] to
‘come forward with specific facts showing that there is a
genuine issue for trial,’ ” Wrobel v. County of Erie, 692
F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586–87 (1986)), “and cannot rely on the mere allegations
or denials contained in the pleadings,” Guardian Life Ins.
Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014)
(citation and quotation marks omitted); see also Wright v.
Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion
for summary judgment is properly supported by documents
or other evidentiary materials, the party opposing summary
judgment may not merely rest on the allegations or denials

of his pleading ....”). And, “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007).
“On a motion for summary judgment, a fact is material if it
might affect the outcome of the suit under the governing law.”
Royal Crown Day Care LLC v. Dep't of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (citation and
quotation marks omitted). At this stage, “[t]he role of the court
is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Brod, 653 F.3d at
164 (citation omitted). Thus, a court's goal should be “to
isolate and dispose of factually unsupported claims.” Geneva
Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d
Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
323–24 (1986)). However, a district court should consider
only evidence that would be admissible at trial. See Nora
Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736,
746 (2d Cir. 1998). “[W]here a party relies on affidavits ...
to establish facts, the statements ‘must be made on personal
knowledge, set out facts that would be admissible in evidence,
and show that the affiant ... is competent to testify on the
matters stated.’ ” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir.
2012) (quoting Fed. R. Civ. P. 56(c)(4)).
*10 As a general rule, “district courts may not weigh
evidence or assess the credibility of witnesses at the summary
judgment stage.” Jeffreys v. City of New York, 426 F.3d 549,
551 (2d Cir. 2005); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986) (noting that at the summary
judgment stage, the court is not to “weigh the evidence and
determine the truth of the matter”); Vital v. Interfaith Med.
Ctr., 168 F.3d 615, 622 (2d Cir. 1999) (“Assessments of
credibility and choices between conflicting versions of the
events are matters for the jury, not for the court on summary
judgment.” (citation omitted)). Where the evidence presents
“a question of ‘he said, she said,’ ” the court “cannot ... take a
side at the summary judgment stage.” Fincher v. Depository
Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010);
see also Kassel v. City of Middletown, 272 F. Supp. 3d 516,
535 (S.D.N.Y. 2017) (noting that “it is not the role of the
[c]ourt at summary judgment to resolve [a] factual clash”);
Bale v. Nastasi, 982 F. Supp. 2d 250, 258–59 (S.D.N.Y. 2013)
(stating that “[w]here each side ... tells a story that is at
least plausible and would allow a jury to find in its favor,
it is for the jury to make the credibility determinations and

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apportion liability, and not for the court”). And, even if the
non-movant's evidence is “thin, [a non-movant's] own sworn
statement is adequate to counter summary judgment.” Scott v.
Coughlin, 344 F.3d 282, 290–91 (2d Cir. 2003) (holding that
“[t]he credibility of [Plaintiff's] statements and the weight of
contradictory evidence may only be evaluated by a finder of
fact”).
Finally, the Second Circuit has instructed that when a
court considers a motion for summary judgment, “special
solicitude” should be afforded a pro se litigant, see Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); accord Mercado
v. Div. of N.Y. State Police, No. 96-CV-235, 2001 WL 563741,
at *7 (S.D.N.Y. May 24, 2001) (same), and a court should
construe “the submissions of a pro se litigant ... liberally”
and interpret them “to raise the strongest arguments that they
suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (italics and citation omitted). Moreover,
“the failure to oppose a motion for summary judgment alone
does not justify the granting of summary judgment.” Vt.
Teddy Bear Co., 373 F.3d at 244; see also Jackson v. Fed.
Exp., 766 F.3d 189, 196 (2d Cir. 2014) (explaining that “an
examination of the legal validity of an entry of summary
judgment should ... be[ ] made in light of the opposing party's
pro se status” (italics omitted)). “Nonetheless, proceeding
pro se does not otherwise relieve a litigant of the usual
requirements of summary judgment, and a pro se party's
bald assertions unsupported by evidence[ ] are insufficient
to overcome a motion for summary judgment.” Houston v.
Teamsters Local 210, Affiliated Health & Ins. Fund-Vacation
Fringe Benefit Fund, 27 F. Supp. 3d 346, 351 (E.D.N.Y. 2014)
(alterations, italics, citation, and quotation marks omitted);
see also Flores v. City of New York, No. 15-CV-2903, 2017
WL 3263147, at *2 (S.D.N.Y. July 31, 2017) (same).
B. Analysis
For reasons discussed in the May 2020 Order, the Court will
not consider Plaintiff's First Amendment retaliation claim
(Count Nine) or his malicious prosecution claim (Count 11).
Of the remaining claims, Police Defendants have moved for
summary judgment on Counts 1–5, 7–8, 10, 12–16, and 20.
(See generally Police Defs.’ Mem. of Law in Supp. of Mot. for
Summ. J. (“Police Defs.’ Mem.”) (Dkt. No. 170).) Medical
Defendants have moved for summary judgment on Counts
12–20. (See generally Med. Defs.’ Mem. of Law in Supp. of
Mot. for Summ. J. (“Med. Defs.’ Mem.”) (Dkt. No. 177).)
Plaintiff has moved for summary judgment on Count Six and
cross-moved for summary judgment on Counts One, Seven,

and 10. (See Pl.’s Mem. of Law in Supp. of Mot. for Partial
Summ. J. (“Pl.’s Mem.”) 8 (Dkt. No. 183).) 16
16

Plaintiff's Memorandum of Law in Support of his
Motion for Partial Summary Judgment is located at
ECF pages 8–17 of Dkt. No. 183. Citations to his
Memorandum of Law refer to the ECF stamp at the
top of the page.

1. False Arrest Claim (Count One)
*11 In Count One, Plaintiff asserts a claim for false arrest
against Police Defendants Canario, Perez, and Mendez based
on the incidents leading to his arrest. (SAC ¶¶ 20–29,
118.) Both Plaintiff and Police Defendants have moved for
summary judgment on this claim. (See Pl.’s Mem. 8, 11–13;
Police Defs.’ Mem. 20–21, 32.)
A Ҥ 1983 claim for false arrest derives from [the] Fourth
Amendment right to remain free from unreasonable seizures,
which includes the right to remain free from arrest absent
probable cause.” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir.
2006); see also Widget v. Town of Poughkeepsie, No. 12CV-3459, 2013 WL 1104273, at *4 (S.D.N.Y. Mar. 18, 2013)
(same). “In analyzing § 1983 claims for unconstitutional
false arrest, [courts] have generally looked to the law of the
state in which the arrest occurred.” Jaegly, 439 F.3d at 151
(citation omitted); see also Ackerson v. City of White Plains,
702 F.3d 15, 19 (2d Cir. 2012) (“A § 1983 claim for false
arrest ... is substantially the same as a claim for false arrest
under New York law.” (ellipsis in original) (citation omitted)).
Under New York law, which is applicable here, “an action
for false arrest requires that the plaintiff show that ‘(1) the
defendant intended to confine him [or her], (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.’ ” Ackerson, 702 F.3d at 19 (quoting
Broughton v. State, 335 N.E.2d 310, 314 (N.Y. 1975)).
“Probable cause ‘is a complete defense to an action for false
arrest’ brought under New York law or § 1983.” Ackerson,
702 F.3d at 19 (quoting Weyant v. Okst, 101 F.3d 845, 852
(2d Cir. 1996)); see also Deanda v. Hicks, 137 F. Supp. 3d
543, 568 (S.D.N.Y. 2015) (same); Conte v. County of Nassau,
No. 06-CV-4746, 2010 WL 3924677, at *12 (E.D.N.Y. Sept.
30, 2010) (same). “Probable cause to arrest exists when
the officers have ... reasonably trustworthy information as
to[ ] facts and circumstances that are sufficient to warrant

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a person of reasonable caution in the belief that an offense
has been ... committed by the person to be arrested.” Zellner
v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007); see also
Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (same).
To determine whether probable cause existed for an arrest,
a court “assess[es] whether the facts known by the arresting
officer at the time of the arrest objectively provided probable
cause to arrest.” Ackerson, 702 F.3d at 19 (citation and
quotation marks omitted). Moreover, “probable cause does
not require an awareness of a particular crime, but only that
some crime may have been committed.” Id. at 20 (citation
and quotation marks omitted). In other words, “[Police]
Defendants prevail if there was probable cause to arrest
Plaintiff for any single offense.” Id. (alteration, citation,
and quotation marks omitted). “Whether probable cause is
established depends on the totality of the circumstances, ...
including the information possessed by the officer prior to
making the arrest and [his or] her experience.” Daniels v.
City of New York, No. 15-CV-2251, 2016 WL 4368378, at
*3 (S.D.N.Y. Aug. 14, 2016) (citation omitted). “The burden
of establishing the absence of probable cause rests on the
plaintiff,” and “[t]he question of whether or not probable
cause 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.” Sethi v. Nassau County, No. 11-CV-6380, 2014 WL
2526620, at *4 (E.D.N.Y. June 3, 2014) (citations omitted);
see also Nickey v. City of New York, No. 11-CV-3207, 2013
WL 5447510, at *5 (E.D.N.Y. Sept. 27, 2013) (“[W]hen
the facts material to a probable cause determination are
undisputed, the matter is a question of law properly decided
by the [c]ourt.”).
*12 “Even if probable cause to arrest is ultimately found
not to have existed, an arresting officer will still be entitled to
qualified immunity from a suit for damages if he can establish
that there was ‘arguable probable cause’ to arrest.” Escalera
v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). “Arguable probable
cause exists if either (a) it was objectively reasonable for the
officer to believe that probable cause existed, or (b) officers
of reasonable competence could disagree on whether the
probable cause test was met.” Walczyk v. Rio, 496 F.3d 139,
163 (2d Cir. 2007) (citation and quotation marks omitted);
see also Amore v. Novarro, 624 F.3d 522, 536 (2d Cir.
2010) (same). Accordingly, “the analytically distinct test for
qualified immunity is more favorable to the officers than
the one for probable cause; arguable probable cause will
suffice to confer qualified immunity for the arrest.” Escalera,
361 F.3d at 742 (quotation marks omitted). “This forgiving
standard protects ‘all but the plainly incompetent or those who

knowingly violate the law.’ ” Provost v. City of Newburgh,
262 F.3d 146, 160 (2d Cir. 2001) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)). To deny a motion for summary
judgment on qualified immunity grounds, a court must find
that the officer's judgment was “so flawed that no reasonable
officer would have made a similar choice.” Provost, 262 F.3d
at 160 (citation omitted).
As relevant here, “[w]hen information is received from a
putative victim or an eyewitness, probable cause exists unless
the circumstances raise doubts as to the person's veracity.”
Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir.
2001) (citations omitted); see also Panetta v. Crowley, 460
F.3d 388, 395 (2d Cir. 2006) (observing that “information
gleaned from informants can be sufficient to justify the
existence of probable cause,” and recognizing the “wellestablished” principle “that a law enforcement official has
probable cause to arrest if he received his information from
some person, normally the putative victim or eyewitness,
unless the circumstances raise doubt as to the person's
veracity” (citations and quotation marks omitted)). Moreover,
the information furnished by “an identified bystander with
no apparent motive to falsify has a peculiar likelihood
of accuracy,” and the Second Circuit has “endorsed the
proposition that an identified citizen informant is presumed to
be reliable.” Panetta, 460 F.3d at 395 (citation and quotation
marks omitted).
Here, it is undisputed that the officers in question were
responding to a 911 call in which the caller “fully describ[ed]
[Plaintiff] as the suspect selling narcotics.” (SAC ¶ 20;
see also Defs.’ 56.1 ¶ 11.) The officers had no reason to
question this informant's credibility; indeed, Plaintiff himself
acknowledges that the information provided to the officers
was accurate. (See SAC ¶ 20.) Officer Canario, who first
approached Plaintiff, recognized him as the individual who
“matched the description given by the caller.” (Canario Aff.
¶ 4.) Joining the pursuit moments later, Officer Mendez
also recognized that Plaintiff's clothing “matched” the
“description [that had] come over the radio.” (Mendez Aff. ¶
4.) 17 All of this occurred in an area where illegal drug activity
was common, (see Anderson Aff. ¶ 3), and in which Plaintiff
admits to having sold drugs shortly before the officers arrived,
(Pl.’s Dep. 23:4–17).
17

By the time Officer Perez arrived on the scene,
Plaintiff was already “in the custody of Officers
Mendez and Canario.” (Perez Aff. ¶ 4.)

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Relying on credible, contemporaneous information from an
eyewitness, the responding officers here undoubtedly had
arguable probable cause to arrest Plaintiff. Courts have
found the existence of probable cause and arguable probable
cause in similar circumstances where police officers make
an arrest based on information from a 911 call. See, e.g.,
Gatling v. West, No. 18-CV-275, 2020 WL 564604, at *8
(N.D.N.Y. Feb. 5, 2020) (finding that a police officer had
probable cause to arrest an erratic driver based in part
on a “near-contemporaneous citizen complaint” that was
“communicated to [the officer] through the 911 operator,”
and therefore dismissing the plaintiff's false arrest claim on
summary judgment), appeal docketed, No. 20-827 (2d Cir.
Mar. 6, 2020); Pagan v. City of New York, No. 15-CV-5825,
2019 WL 8128482, at *6–7 (E.D.N.Y. Mar. 28, 2019)
(granting summary judgment based on conclusion that police
officers had “arguable probable cause” where the officers
were acting in response to a 911 caller who described the
suspect as “disturbed, uncontrollable, and potentially carrying
a weapon”). 18 Likewise, courts have found the existence
of arguable probable cause where, as here, officers make an
arrest based on a contemporaneous, eyewitness description
of the suspect's clothing. In Steinbergin v. City of New York,
No. 19-CV-1314, 2021 WL 396690 (S.D.N.Y. Feb. 4, 2021),
for example, the officer “arrived at the scene” of a reported
drug deal “only a few minutes” after the sale and “saw
[the plaintiff] ... wearing distinctive clothing matching [the
undercover officer's] description of the suspect's clothing.” Id.
at *4. “Given the proximity in time and location to the crime
and the fact that [the plaintiff's] distinctive attire matched
the suspect's,” the court concluded that “a reasonable officer
in [the defendant's] position could have concluded that [the
plaintiff] had sold cocaine to [the undercover officer] as
soon as he saw him.” Id. The court therefore found that
the defendant officer was entitled to qualified immunity and
dismissed the plaintiff's false arrest claim on a motion for
summary judgment. See id. at *4–5. In Falls v. Rude, No.
17-CV-1339, 2019 WL 3715087 (S.D.N.Y. Aug. 7, 2019),
another case involving Plaintiff, the court found that the
defendant officers had arguable probable cause to arrest
Plaintiff based on “a particularly distinctive feature of [his]
clothing[,]” a description of which had been provided to
the officers by a victim who called the police to report
that Plaintiff had threatened her with a gun, see id. at *8.
Accordingly, the court held that defendants were entitled to
qualified immunity with respect to Plaintiff's false arrest claim
on a motion for summary judgment. See id.

18

In Pagan, the parties disputed whether, when
officers arrived on the scene, the suspect “was still
flailing about or was instead lying calmly on the
floor.” 2019 WL 8128482, at *6. As the court
explained, “[t]here [could] be no question that the
information officers received before arriving at the
apartment would have established probable cause
to arrest [the suspect], had he continued acting
as described on the 911 calls.” Id. “[V]iewing
the evidence in the light most favorable to
[the] [p]laintiff,” however, the court found “it
[was] a closer call whether probable cause was
subsequently dissipated upon officers’ arrival on
the scene.” Id.
Ultimately, the Pagan court found it unnecessary
to resolve this question. Because the court found
that the officers had “arguable probable cause”
to effectuate the arrest even under the plaintiff's
version of events, it dismissed the false arrest claim
on grounds of qualified immunity, without deciding
whether there was actual probable cause for the
arrest.
In this respect, Pagan is distinguishable. Here,
there is nothing in the record to suggest that
Plaintiff's behavior minimized probable cause
when the officers arrived on the scene. Quite the
opposite. By deciding to run from police, Plaintiff's
behavior further contributed to the existence of
probable cause—a point discussed briefly infra.

*13 Finally, Plaintiff's decision to run from the responding
officers is another factor that supports the existence of
arguable probable cause. See Greene v. Bryan, No. 15CV-249, 2018 WL 3539811, at *12 (E.D.N.Y. July 23, 2018)
(“Unprovoked flight from the police is certainly suggestive
of wrongdoing and can be treated as suspicious behavior that
factors into the totality of the circumstances.” (citation and
quotation marks omitted)); McClellan v. City of New York,
No. 15-CV-6759, 2017 WL 4217144, at *3 (S.D.N.Y. Sept.
20, 2017) (observing that courts may consider a suspect's
“flight from the police, presence at the scene, and similarity ...
to witness descriptions” when deciding whether there was
probable cause).
Based on the totality of circumstances, the Court concludes
that “it was objectively reasonable for the [responding]
officer[s] to believe that probable cause existed,” or, at
the very least, “officers of reasonable competence could
disagree on whether the probable cause test was met.” See
Walczyk, 496 F.3d at 163. These officers therefore had

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“arguable probable cause” to arrest Plaintiff, and they are
entitled to qualified immunity with respect to Plaintiff's false
arrest claim. For these reasons, Police Defendants’ Motion
is granted, and Plaintiff's Motion is denied, with respect to
Count One. Count One is therefore dismissed.

2. Excessive Force Claims (Counts Two, Five, and Eight)
Plaintiff has brought three excessive force claims, each based
on a different episode on the night of May 8. In Count Two,
Plaintiff brings an excessive force claim against each of the
seven Police Defendants based on their alleged treatment of
Plaintiff in the yard behind 12 Dubois Street shortly after he
was apprehended. (See SAC ¶¶ 31–33, 119.) In Count Five,
Plaintiff brings an excessive force claim against Canario, Pitt,
Saintiche, and Arestin based on their alleged treatment of
Plaintiff during the cavity search at the Newburgh police
station. (See id. ¶¶ 59–63, 122.) In Count Eight, Plaintiff
brings an excessive force claim against these same four Police
Defendants based on their efforts to restrain him after he tried
to swallow the drugs that were recovered during the search.
(See id. ¶¶ 67–73, 125.) Police Defendants have moved for
summary judgment on each count. (See Police Defs.’ Mem.
13–19.)
“Claims that law enforcement officers have used excessive
force in the course of an arrest, investigatory stop, or other
seizure of a free citizen [are] analyzed under the Fourth
Amendment and its reasonableness standard.” Usavage v.
Port Auth. of N.Y. & N.J., 932 F. Supp. 2d 575, 591 (S.D.N.Y.
2013) (citation, alteration, and quotation marks omitted).
Thus, as noted in the Court's May 2020 Order, although
Plaintiff labels his excessive force claims as arising under
the Fourteenth Amendment, (see SAC ¶¶ 119, 122, 125),
the Court will “construe[ ] these claims as arising under
the Fourth Amendment as incorporated by the Fourteenth
Amendment,” (see May 2020 Order 7 n.1). See also Graham
v. Connor, 490 U.S. 386, 394–95 (1989) (“Because the
Fourth Amendment provides an explicit textual source
of constitutional protection against ... physically intrusive
governmental conduct [during an arrest or investigatory stop
of a free citizen], that Amendment, not the more generalized
notion of ‘substantive due process,’ must be the guide for
analyzing these claims.”).
“When determining whether police officers have employed
excessive force in the arrest context, the Supreme Court
has instructed that courts should examine whether the

use of force is objectively unreasonable ‘in light of the
facts and circumstances confronting them, without regard
to [the officers’] underlying intent or motivation.’ ” Jones
v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006) (alteration in
original) (quoting Graham, 490 U.S. at 397). To evaluate
the reasonableness of an officer's conduct, a court should
“consider the facts and circumstances of each particular case,
including the crime committed, its severity, the threat of
danger to the officer and society, and whether the suspect is
resisting or attempting to evade arrest.” Thomas v. Roach, 165
F.3d 137, 143 (2d Cir. 1999). “Additionally, on an excessive
force claim a plaintiff must present sufficient evidence
to establish that the alleged use of force is objectively
sufficiently serious or harmful enough to be actionable.”
Washpon v. Parr, 561 F. Supp. 2d 394, 406 (S.D.N.Y. 2008)
(citation and quotation marks omitted). “Generally, the force
used by the [d]efendant must be more than de minimis in
order for an excessive force claim to be actionable.” Musso
v. City of New York, No. 05-CV-2511, 2008 WL 3200208, at
*4 (E.D.N.Y. July 24, 2008) (citation, alterations, and italics
omitted).

a. Use of Force During Plaintiff's Arrest (Count Two)
*14 Within Count Two itself, Plaintiff alleges three distinct
acts that could arguably constitute excessive force. As
discussed in Section I.A.1 supra, Plaintiff alleges that Police
Defendants (1) overtightened his handcuffs (the “Handcuff
Claim”), (2) repeatedly punched him in the stomach, ribs,
chest, and thighs (the “Assault Claim”), and (3) “reach[ed]
down inside of [his] pants from the front ... all the way from
[his] underwear to [his] socks” (the “Search Claim”). (SAC
¶¶ 31–33.) The Court will address each of these specific
claims in turn. See Dunkelberger v. Dunkelberger, No. 14CV-3877, 2015 WL 5730605, at *14–17 (S.D.N.Y. Sept.
30, 2015) (addressing separately the plaintiff's allegations of
tight handcuffing, threats of arrest and property destruction,
brandishing weapons, and physical force); Keeney v. City of
New London, 196 F. Supp. 2d 190, 198 (D. Conn. 2002)
(addressing separately alleged force used before an individual
was handcuffed and restrained and after an individual was
handcuffed and restrained).

i. Count Two: The Handcuff Claim
“Courts apply a separate standard to claims for excessive
force in the use of handcuffs.” Sachs v. Cantwell, No. 10-

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CV-1663, 2012 WL 3822220, at *14 (S.D.N.Y. Sept. 4, 2012).
“While handcuffs must be reasonably tight to be effective,
handcuffs that are overly tight may constitute an excessive
use of force on the part of the officer using them.” Id. (citing
Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp.
2d 459, 468 (S.D.N.Y. 2008)). When evaluating a claim of
excessive force based on the defendants’ use of handcuffs,
courts are to consider three factors: (1) whether the handcuffs
were “unreasonably tight”; (2) whether the “defendants
ignored the plaintiff's pleas that the handcuffs were too tight”;
and (3) the “degree of injury to the [plaintiff's] wrists.” Id.
(citation, alteration, and emphasis omitted). Of these three
factors, the third is “particularly important,” for a plaintiff
“must suffer some form of injury from the tight handcuffs
in order for such a claim to be actionable.” Id. (quoting
Vogeler v. Colbath, No. 04-CV-6071, 2005 WL 2482549,
at *9 (S.D.N.Y. Oct. 6, 2005)). Indeed, there is agreement
throughout the Second Circuit that “tight handcuffing does
not constitute excessive force unless it causes some injury
beyond temporary discomfort.” Id. (quoting Lynch, 567 F.
Supp. 2d at 468–69) (gathering authorities).
Here, Plaintiff alleges that after Police Defendants handcuffed
him, they “overtightened [his] handcuffs to the point where
the metal was pressed against and squeezing [his] wrist
bones[,] causing substantial pain and bruising.” (SAC ¶ 32.)
Describing this injury in more detail during his deposition,
Plaintiff said his wrists had “dents,” “bruises,” and broken
skin. (Pl.’s Dep. 51:4–21.) Plaintiff has provided a similar
description of his injury in other submissions as well. (See
Pl.’s Decl. in Opp'n to Defs.’ Mot. (“Pl.’s Opp'n Decl.”) ¶ 14
(Dkt. No. 204) (stating that he “sustained intensive bruising
on his wrists caused by the assaults while in overtightened
handcuffs”); Pl.’s Mem. of Law in Opp'n to Defs.’ Mot.
(“Pl.’s Opp'n”) 3 (Dkt. No. 204) (explaining that the “only
injuries he claims to have sustained as a result of the assault
were intensive pain, bruising, scrapes[,] and redness in/on his
wrists”).) 19
19

Plaintiff's Declaration in Support of his Opposition
to Summary Judgment is located at ECF pages
253–66 of Dkt. No. 204. Plaintiff's Memorandum
of Law in Opposition to Summary Judgment is
located at ECF pages 1–46 of Dkt. No. 204.
Citations to the latter document refer to the ECF
stamp at the top of the page.

Even if the Court accepted Plaintiff's allegations and
supporting testimony as true, the alleged injury he has

described—temporary pain, bruising, scrapes, and redness
—“does not rise to the level of injury necessary to sustain
an excessive use of force claim for tight handcuffs.” Sachs,
2012 WL 3822220, at *15 (concluding on summary judgment
that a plaintiff's swelling in her wrists, which lasted 24
hours, did not constitute a sufficient injury to support an
excessive force claim based on tight handcuffs); see also
Selvaggio v. Patterson, 93 F. Supp. 3d 54, 74–75 (E.D.N.Y.
2015) (granting summary judgment for the defendants where
the plaintiff's injuries consisted of scabbing and abrasions);
Richardson v. N.Y.C. Health & Hosps. Corp., No. 05CV-6278, 2009 WL 804096, at *13–14 (S.D.N.Y. Mar. 25,
2009) (granting the defendants’ summary judgment motion
on an excessive force claim where the plaintiff suffered pain,
bruises, swelling, and red marks, and was given an over-thecounter pain reliever at the hospital); Bratton v. N.Y. State
Div. of Parole, No. 05-CV-950, 2008 WL 1766744, at *9–10
(N.D.N.Y. Apr. 14, 2008) (concluding on summary judgment
that the plaintiff did not satisfy the injury requirement despite
medical records showing that his wrists were swollen and
bruised for three weeks as a result of handcuffs); Hamlett v.
Town of Greenburgh, No. 05-CV-3215, 2007 WL 119291,
at *3 (S.D.N.Y. Jan. 17, 2007) (concluding on summary
judgment that the plaintiff's “brief numbness as a result of
the handcuffs being too tight” did not “rise to the level of
force required to sustain an excessive force claim”); Vogeler,
2005 WL 2482549, at *10 (granting the defendant's motion
for summary judgment where the plaintiffs had failed to
show “any measurable harm” from the handcuffing); Wilder
v. Village of Amityville, 288 F. Supp. 2d 341, 344 (E.D.N.Y.
2003) (“Plaintiff's allegation of sore, yet uninjured, wrists
simply does not rise to the level of ... unlawful conduct
in an arrest situation.”), aff'd, 111 F. App'x 635 (2d Cir.
2004). By contrast, “[t]he most common injuries found to
satisfy the injury requirement in handcuff cases are scarring
and nerve damage.” Usavage, 932 F. Supp. 2d at 592, 598
(gathering cases and denying summary judgment where there
was evidence that the plaintiff suffered from nerve damage
after handcuffing); see also Golio v. City of White Plains, 459
F. Supp. 2d 259, 265 (S.D.N.Y. 2006) (denying defendants’
motion for summary judgment where plaintiff had alleged
swelling and lasting nerve damage due to the handcuffing).
No such injuries are present here. (See Pl.’s Dep. 51:9–15 (Q:
“Are there any marks on your wrists now?” A: “No, not right
now.” Q: “How long did those marks on your wrists last?” A:
“Probably a couple of days, like that.”).) Here, “the fact that
the tight handcuffing did not cause [Plaintiff] any continuing
injury is fatal to the excessive force claim[,]” Lynch, 567 F.

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Supp. 2d at 468, and thus, the Court will dismiss the Handcuff
Claim on this basis.

ii. Count Two: The Assault Claim
*15 Insofar as Plaintiff's excessive force claim is predicated
on the alleged assault by Police Defendants, Plaintiff has not
produced evidence “that the alleged use of force was serious
or harmful enough to be actionable.” Ferebee v. City of New
York, No. 15-CV-1868, 2017 WL 2930587, at *8 (S.D.N.Y.
July 6, 2017), reconsideration denied, 2017 WL 3208602
(S.D.N.Y. July 27, 2017). Although the “focus of inquiry in
an excessive-force claim is on the force used rather than the
injuries sustained, ‘[t]he extent of injury may also provide
some indication of the amount of force applied.’ ” Sullivan
v. City of New York, No. 17-CV-3779, 2018 WL 3368706, at
*11 (S.D.N.Y. July 10, 2018) (alteration in original) (quoting
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam)); see
also Marlin v. City of New York, No. 15-CV-2235, 2016 WL
4939371, at *12 (S.D.N.Y. Sept. 7, 2016) (observing that
“[a]lthough the severity of [a] plaintiff's alleged injuries is
not dispositive, it is nonetheless highly relevant to the inquiry
about whether the force applied was reasonable” (citation and
quotation marks omitted)). “A de minimis use of force will
rarely suffice to state a constitutional claim,” and “de minimis
injury can serve as conclusive evidence that de minimis force
was used.” Ferebee, 2017 WL 2930587, at *8 (citations and
italics omitted); see also Cunninham v. New York City, No.
04-CV-10232, 2007 WL 2743580, at *6 (S.D.N.Y. Sept. 18,
2007) (same).
Although Plaintiff's account of his arrest includes a violent
beating in which Police Defendants repeatedly pummeled
his thighs and parts of his torso, (see SAC ¶ 33), his own
subsequent testimony belies this account. At his deposition,
for example, Plaintiff testified that despite being punched
with closed fists “[e]ight to ten times,” (Pl.’s Dep. 47:13–
17), he suffered no injuries, (see id. 47:3–8 (explaining that
the officers kept “hitting [him] in the body area,” but that
he “really didn't get injured off of that” and “didn't pay it
[any] mind”); id. 48:2–9 (Q: “What part of your body did they
punch? ... A: “Ribs, chest, stomach.” Q: “You said you were
not injured?” A: “I was not injured. Yeah, I wasn't injured.”)).
The alleged assault caused neither bleeding nor bruising. (See
id. 48:10–14 (Q: “Were you bleeding from any part of your
body?” A: “No.” Q: “So, did you have any bruising?” A:
“Not that I recall, no.”).) After being taken to the hospital
later in the evening, Plaintiff did not raise this alleged assault

because he “didn't pay [it] [any] mind,” and “[it] didn't [faze]
[him].” (Id. 50:4–5.) Similarly, in his Memorandum of Law in
Opposition to Summary Judgment, Plaintiff describes his pain
from the alleged assault as “minor” and “momentar[y].” (See
Pl.’s Opp'n 3.)
Thus, by Plaintiff's own admission, he suffered minor,
momentary pain and no injuries from the officers’ alleged
beating. Under these circumstances, Plaintiff's “de minimis
injury ... serve[s] as conclusive evidence that de minimis
force was used.” Ferebee, 2017 WL 2930587, at *8 (citation
and italics omitted). Accordingly, “no reasonable trier of fact
could determine that [Police Defendants] used excessive force
when arresting Plaintiff.” Id. (granting summary judgment
and dismissing the plaintiff's excessive force claim where
the “[p]laintiff himself testified that he suffered no physical
injuries as a result of the arrest”); Cunninham, 2007 WL
2743580, at *7 (granting summary judgment for defendants
where the only injuries plaintiffs alleged from being sprayed
with mace were temporary discomfort and disorientation,
which were held to be de minimis). Although this Court
and others have allowed excessive force claims to survive
summary judgment where a plaintiff has suffered only
minor injuries, see, e.g., Ong v. Park Manor (Middletown
Park) Rehab. & Healthcare Ctr., No. 12-CV-974, 2017 WL
4326540, at *13 (S.D.N.Y. Sept. 28, 2017) (gathering cases),
the Court has not located a case in which a court allowed such
a claim to survive in the absence of any injury. And while
the force allegedly used by Police Defendants when arresting
Plaintiff may not have been de minimis, Plaintiff's testimony
renders this particular aspect of his account “so replete
with inconsistencies and improbabilities that no reasonable
juror would undertake the suspension of disbelief necessary
to credit the allegations made in his complaint.” Jeffreys,
426 F.3d at 555 (citation and quotation marks omitted).
Accordingly, the Assault Claim is dismissed.

iii. Count Two: The Search Claim
*16 The third component of Plaintiff's excessive force claim
is based on the allegation that during the arrest, certain Police
Defendants “empt[ied] out [Plaintiff's] pockets, check[ed]
[his] waistline, [and] reach[ed] down inside of [Plaintiff's]
pants from the front side all the way from [his] underwear
to [his] socks.” (SAC ¶ 33.) Accordingly, this component of
Count Two is more properly analyzed as an unreasonable
search claim, rather than as a claim based on alleged excessive

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force. Police Defendants have not addressed this aspect of
Plaintiff's claim. (See generally Police Defs.’ Mem.)
The search of a person incident to an arrest is presumptively
reasonable under the Fourth Amendment. See United States
v. Robinson, 414 U.S. 218, 235 (1973). “Nevertheless,
a search incident to a lawfully executed arrest may still
violate the Fourth Amendment, if conducted in an otherwise
unreasonable manner.” Wang v. Vahldieck, No. 09-CV-3783,
2012 WL 119591, at *10 (E.D.N.Y. Jan. 9, 2012); see
also Bolden v. Village of Monticello, 344 F. Supp. 2d 407,
417 (S.D.N.Y. 2004) (noting “[a] lawful arrest ... creates
a presumption of reasonableness regarding an attendant
search” that “can be rebutted by a showing that the search
was conducted in an otherwise unreasonable manner”).
“[U]nreasonable, non-consensual, inappropriate touching,”
for example, “can constitute unreasonable intrusions into
a plaintiff's bodily integrity in violation of the Fourth
Amendment.” Golden v. County of Westchester, No. 10CV-8933, 2012 WL 4327652, at *5 (S.D.N.Y. Sept. 18, 2012)
(brackets and quotation marks omitted) (quoting Fontana
v. Haskin, 262 F.3d 871, 880–81 (9th Cir. 2001)); see
also Anderson v. Waterbury Police Dep't, No. 14-CV-829,
2017 WL 1157843, at *11 (D. Conn. Mar. 28, 2017)
(“[C]ourts in [the Second] Circuit have found that claims
that a police officer's actions during and following the
arrest of a suspect rise to the level of a sexual assault are
properly analyzed under the Fourth Amendment and could
give rise to at least one genuine issue of material fact that
precludes summary judgment on the Fourth Amendment
claim.” (citation and quotation marks omitted)). However,
“not every truthful allegation of sexual bodily intrusion
during an arrest is actionable as a violation of the Fourth
Amendment.” Fontana, 262 F.3d at 880. “Some bodily
intrusions may be provably accidental or de minimis and
thus constitutionally reasonable.” Id. (italics omitted); see
also Wright v. City of Waterbury, No. 07-CV-306, 2011 WL
1106217, at *6 (D. Conn. Mar. 23, 2011) (same).
Plaintiff has raised a triable issue of fact regarding the
reasonableness of the search incident to his arrest. Although
courts have found that an officer's brief contact with
an arrestee's breasts or genital area, without more, does
not violate the Fourth Amendment, those cases have
involved pat-downs on top of an arrestee's clothing. See
Pascual v. Fernandez, No. 11-CV-7075, 2013 WL 474292,
at *6 (S.D.N.Y. Jan. 29, 2013) (finding that a patdown of a female arrestee's breasts, buttocks, and inner
thigh area over her clothing by a male officer was not

constitutionally unreasonable); Golden, 2012 WL 4327652,
at *6 (granting summary judgment on Fourth Amendment
claim where the officer's search “was a minimally intrusive,
above the clothing-pat down,” even though it “included
incidental contact with [the plaintiff's] breasts and genital
area” (emphasis added)); Wright, 2011 WL 1106217, at *7
(finding that the police officer who “cupped [the plaintiff's]
groin area, while she was frisking him, on two occasions,” did
“not rise to the level of unreasonableness required for a Fourth
Amendment violation” because the officer “did not grab [the
plaintiff's] groin area or touch underneath his clothing, and
the search of [the] groin area was extremely quick” (emphasis
added)); Garcia v. N.Y. State Police Investigator Aguiar,
138 F. Supp. 2d 298, 304 (N.D.N.Y. 2001) (dismissing
Fourth Amendment claim where the plaintiff alleged that the
officer “cupped her crotch or breasts” in part because the
defendant “did not touch underneath her clothing” (emphasis
added)). The search Plaintiff has described—in which the
arresting officer(s) reached “down inside of [his] pants from
the front side all the way from [his] underwear to [his]
socks,” (SAC ¶ 33)—goes beyond an over-the-clothing patdown. This allegation raises a genuine dispute regarding
the reasonableness of Police Defendants’ search incident to
arrest. See Anderson, 2017 WL 1157843, at *11 (denying
defendants summary judgment on unreasonable search claim
where the plaintiff testified that an officer “put one hand into
[the plaintiff's] pants, ... inside [the plaintiff's] underwear[,] ...
[and] moved [his hand] directly between [the plaintiff's] butt
cheeks in a swiping motion from front to back”); Thomas v.
O'Brien, No. 08-CV-318, 2010 WL 3155817, at *9 (N.D.N.Y.
Aug. 9, 2010) (denying summary judgment on unreasonable
search claim where the plaintiff alleged that the defendant
officer “shoved his hand into [his] pants and groped and
painfully squeezed [his] scrotum”); cf. Martinez v. Belcourt,
No. 20-CV-286, 2020 WL 5118016, at *6 (D. Conn. Aug.
31, 2020) (concluding that the plaintiff had adequately stated
an unreasonable search claim where the officer allegedly had
“put his hands down [the plaintiff's] pants and fondled and
squeezed his genitals”).
*17 Accordingly, Police Defendants’ Motion is granted in
part and denied in part with respect to Count Two. The
Handcuff Claim and Assault Claim are dismissed, but the
Search Claim survives.

b. Use of Force During Cavity
Search at Police Station (Count Five)

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The excessive force claim in Count Five is predicated on
Plaintiff's allegation that Canario, Pitt, Saintiche, and Arestin
violently beat him in the strip search room at the Newburgh
police station. (See SAC ¶ 122.) Insofar as Plaintiff's
excessive force claim encompasses the cavity search itself,
(see id. ¶¶ 63, 122), the Court treats that allegation as part of
Plaintiff's unreasonable search claim in Count Six, discussed
in Section II.B.3 infra.
As an initial matter, the Court notes that the Fourth
Amendment's objective reasonableness standard continues to
govern any excessive force claims based on events at the
Newburgh police station. The Second Circuit “decided long
ago that the objective reasonableness standard established in
Graham applies to actions taken with respect to a person who
asserts, as does the plaintiff here, a claim for excessive force
after [he] has been arrested and detained, but ‘prior to the time
when [he] is arraigned or formally charged, and remains in the
custody (sole or joint) of the arresting officer.’ ” Cugini v. City
of New York, 941 F.3d 604, 612 (2d Cir. 2019) (quoting Powell
v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989)); see also
Franks v New Rochelle Police Dep't, No. 13-CV-636, 2015
WL 4922906, at *9 (S.D.N.Y. Aug. 18, 2015) (recognizing
that, under Powell, the Fourth Amendment standard applies
until the person is arraigned or formally charged, and remains
in the custody of the arresting officer). Accordingly, the Court
will analyze the excessive force claim in Count Five—as well
as the excessive force claim in Count Eight—under the Fourth
Amendment standard.
As recounted in Part I.A.2 supra, Plaintiff and Police
Defendants give strikingly divergent accounts of what
occurred in the strip search room. In Plaintiff's version, he
is slammed to the ground, beaten, and digitally penetrated
by one of the officers. (See SAC ¶¶ 59–63.) In the officers’
version, Plaintiff voluntarily squats after having his arms held
against a wall, and the small bag of drugs falls from his body
cavity without any further intervention by the officers. (See,
e.g., Canario Aff. ¶ 15; Defs.’ 56.1 ¶ 47.) In the latter version,
there is no “physical struggle,” (Arestin Aff. ¶ 5), and none of
the officers places his hands on or inside Plaintiff's buttocks,
(see Defs.’ 56.1 ¶ 48).
The Parties therefore present two conflicting versions of the
relevant events. There is no camera in the strip search room,
and thus, no video footage to review. Because the Court “may
not weigh evidence or assess the credibility of witnesses at the
summary judgment stage[,]” Jeffreys, 426 F.3d at 551, it may
not resolve the “he said, she said” factual conflict presented

by Count Five at this point in time, see Fincher, 604 F.3d at
726.
Police Defendants maintain that summary judgment is
warranted in light of two considerations. First, they argue that
Plaintiff gave inconsistent testimony regarding which side of
his face Pitt allegedly punched. (See Police Defs.’ Mem. 6–7,
14–15.) In the Second Amended Complaint, Plaintiff alleges
that Pitt punched him on the right side of his face. (SAC
¶ 60.) But Police Defendants argue that at his deposition,
when Plaintiff “pointed to a picture taken of him at the
hospital and his intake photo at the [Orange County Jail] ... to
identify swelling ... from Pitt's alleged punch[,] ... he pointed
to marks on the left side of his face, not the right [side]
where he says Pitt punched him.” (Police Defs.’ Mem. 6–7;
see also id. at 14–15 (arguing that Plaintiff “pointed to the
left side of his face to identify the area struck and noted a
mark under his left eye and pointed to a photo showing an
unrelated injury”).) Police Defendants cite to three parts of
the deposition transcript—pages 64, 77, and 148—in support
of this claim. (See id. at 6–7) Page 64 contains the following
exchange:
*18 Q: Where did [Pitt] punch you in the face?
A: He punched me on this side of my face.
Q: The right side?
A: Yes.
Q: Between your eye and your ear?
A: Yes, like right here. Like in my head.
(Pl.’s Dep. 64:13–21.) Although the Court has not seen video
footage of the deposition, the only reasonable inference to
be drawn from this excerpt is that Plaintiff pointed to the
right side of his face. After Plaintiff indicates where he
was punched, the examiner's follow-up question—“[t]he right
side?”—indicates that Plaintiff had pointed to the right side
of his face. (See id.) Plaintiff responds in the affirmative,
leaving no doubt as to his testimony. (See id.) On page
77, Plaintiff testifies that in the photo taken of him “when
[he] was first admitted to the hospital[,]” his “whole face
was bruised from that punch where Detective Pitt punched
[him] in the eye.” (Pl.’s Dep. 77:15–20; see also Posner Aff.
Ex. E (“Hospital Photo”) (Dkt. No. 160-4).) This statement
does not conflict with Plaintiff's original allegation or his
testimony from earlier in the deposition that Pitt punched him
on the right side of his face. And without video footage of

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the deposition, the Court has no way of verifying whether
Plaintiff pointed to the left side of his face in the photo, as
Police Defendants claim. Finally, on pages 148 through 149 of
the transcript, the examiner shows Plaintiff the hospital photo,
at which point the following exchange occurs:
Q: I think earlier you pointed to that photograph before we
had marked it when I was examining you initially and
pointed [sic] to underneath your left eye to show what
happened as a result of being punched by Detective Pitt;
is that correct?
A: Yes. Just to note I did have lumps on my forehead, too.
I think you could see that lump, too.
(Pl.’s Dep. 148:25–149:9.) In responding “[y]es” to the
examiner's question, Plaintiff appears to indicate that he
had previously pointed to the left side of his face in the
hospital photo. But even assuming this answer constitutes
an inconsistency in Plaintiff's testimony, the Court cannot
say that his testimony was so “contradictory or rife with
inconsistencies such that it was facially implausible[,]”
Fincher, 604 F.3d at 726, particularly in light of his
earlier testimony—in the same deposition—that did comport
with his initial allegations. The Court therefore declines to
grant summary judgment based on Police Defendants’ first
argument.
Police Defendants also argue summary judgment is warranted
because “there are no hospital records corroborating any
facial injury, which records also reflect he had no complaint
of any.” (See Police Defs.’ Mem. 15; see also ER Records
13 (stating “no gross deformity” to head and face); id.
(stating that Plaintiff “denies any neck pain, back pain[,]
or any other complaints”); Madell Aff'n ¶¶ 16, 24 (stating
that “there was no gross deformity of the head and face,”
that his “objective physical examination of the plaintiff
did not exhibit any evidence of trauma, such as bruising,
contusions[,] or reflexes of pain,” and that, if Plaintiff had
“made any complaints resulting from a physical altercation,
[he] would have documented the same”); Durbin-French
Aff. ¶¶ 15–17 (same)). But although Madell, Durbin-French,
and the St. Luke's medical records suggest Plaintiff did not
complain about any facial injury, Plaintiff maintains that he
did complain to hospital staff about a facial injury resulting
from the alleged assault in the strip search room. (See SAC
¶ 86; Pl.’s Dep. 49:18–21 (explaining that when he arrived at
the hospital, the “injuries [he] was stressing to [hospital staff]
[were] [his] body cavity injuries and the bruise on [his] face
[arising from the officers’ alleged] excessive force on [him]

just before the hospital”); id. 104:15–21 (Q: “Did you make
any complaint about any injury to your face to the hospital?”
A: “I was like, look at my face, look at my face. They beat
me up, all that. That's when I was explaining the body cavity
search.... My neck was strained because I was like – I had
so much tension on me. I told them my neck. I told them
about everything.... But the bruises clearly seen right there in
the face, they didn't treat me for that.”).) Thus, Plaintiff has
provided an account that is flatly at odds with the evidence
and testimony produced by Police Defendants.
*19 In considering these conflicting accounts, the Court is
mindful that “it is undoubtedly the duty of district courts
not to weigh the credibility of the parties at the summary
judgment stage.” Jeffreys, 426 F.3d at 554 (emphasis added).
Even where, as here, a plaintiff has relied exclusively on
his own testimony, courts have denied summary judgment
to defendants, as long as the plaintiff's “testimony was not
contradictory or rife with inconsistencies such that it was
facially implausible.” Fincher, 604 F.3d at 726; see also
Bridgewater v. Taylor, No. 08-CV-3593, 2011 WL 6762931,
at *5 (S.D.N.Y. Dec. 21, 2011) (denying summary judgment
where the plaintiff's evidence consisted “solely of his own
testimony,” but this testimony offered “a plausible alternate
version of events”); Butler v. Gonzalez, No. 09-CV-1916,
2010 WL 3398156, at *8 (S.D.N.Y. May 18, 2010) (denying
summary judgment where, although the plaintiff's evidence
was “minimal,” and his allegations “suffer[ed] from a lack
of corroboration,” there were no “material inconsistencies” in
his account), adopted by 2010 WL 3398150 (S.D.N.Y. Aug.
26, 2010); Sash v. United States, 674 F. Supp. 2d 531, 541–
42 (S.D.N.Y. 2009) (denying summary judgment because the
court did not find the plaintiff's “version of events to be
so incredible, or in such discord with other evidence, as to
find his allegations ‘wholly fanciful,’ ” where the plaintiff's
claim relied “almost entirely” on his own consistent testimony
(citation omitted)).
Indeed, courts have even denied summary judgment to
defendants where, as here, a plaintiff's version of the events is
contradicted by substantial evidence. See, e.g., Scott, 344 F.3d
at 289–91 (holding that “[a]lthough [the plaintiff's] evidence
may be thin, his own sworn statement is adequate to counter
summary judgment,” and that “[b]y finding against [the
plaintiff] on the basis of the disparity between some of [the
plaintiff's] medical records and statements in his affidavit, the
district court made an impermissible credibility determination
and weighed contradictory proof ... [which] may only be
evaluated by a finder of fact”); Vital, 168 F.3d at 622

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(“Assessments of credibility and choices between conflicting
versions of the events are matters for the jury, not for the
court on summary judgment.” (citation omitted)); Archer v.
Dutcher, 733 F.2d 14, 16 (2d Cir. 1984) (reversing grant of
summary judgment and noting that although “[i]t appears
from the affidavits filed by appellees that [the plaintiff's]
case may well be without merit[,]” the plaintiff's “affidavit
in opposition to the motion for summary judgment does
raise material factual disputes, irrespective of their likely
resolution”); cf. DeBlasio v. Rock, No. 09-CV-1077, 2011 WL
4478515, at *13 (N.D.N.Y. Sept. 26, 2011) (partially denying
summary judgment where the plaintiff relied exclusively
on his own testimony, which was contradicted by evidence
produced by the defendants, because the plaintiff's complaint
and deposition testimony were “moderately contradictory,”
but “far less contradictory” than the testimony at issue in
decisions granting summary judgment); Bennett v. Falcone,
No. 05-CV-1358, 2009 WL 816830, at *5 (S.D.N.Y. Mar.
25, 2009) (partially denying summary judgment where
the plaintiff's story was “certainly inconsistent with other
evidence and [was] subject to serious question,” but was
“not so blatantly false that the [c]ourt may simply reject
it as a matter of law” (citation omitted)); Rossi v. Stevens,
No. 04-CV-01836, 2008 WL 4452383, at *5–6 (S.D.N.Y.
Sept. 30, 2008) (partially denying summary judgment where
the defendants’ testimony, third-party eyewitness testimony,
and other evidence contradicted the plaintiff's uncorroborated
version of events, because the plaintiff's story did not have
any “fatal internal inconsistencies”).
Here, although Plaintiff's account of his facial injury relies
exclusively on his own testimony and is contradicted by other
testimony and medical evidence in the record, his account
still provides “a plausible alternate version of events,”
Bridgewater, 2011 WL 6762931, at *5, that is neither “wholly
fanciful,” Sash, 674 F. Supp. 2d at 541 (citation omitted),
nor “rife with inconsistencies,” Fincher, 604 F.3d at 726. It
is true that some district courts in the Second Circuit have
granted summary judgment on the basis of medical records
where there is “direct[ ] and irrefutabl[e] contradict[ion]” of a
plaintiff's descriptions of his injuries, such that “no reasonable
jury could credit [the] plaintiff's account of the happening.”
Henry v. Brown, 406 F. Supp. 3d 211, 214–15 (E.D.N.Y. 2016)
(citation and emphasis omitted) (granting summary judgment
for the defendant where, although the plaintiff alleged that he
nearly lost his left leg and had a head injury so severe that he
was “unconscious [and] lying in a pool of blood” for over an
hour, the medical records reflected only a scab on his leg and
no head injury whatsoever); see also Allah v. Wilson, No. 13-

CV-4269, 2017 WL 4350611, at *4 (S.D.N.Y. July 31, 2017)
(granting summary judgment where the plaintiff's medical
records six days after an alleged beating revealed only a
possible foot fungus); Musaid v. Manka, No. 13-CV-7880,
2016 WL 540806, at *5 (S.D.N.Y. Feb. 9, 2016) (granting
the defendant's summary judgment motion where, although
the plaintiff alleged that he had suffered broken bones, the
x-ray images showed no broken bones at all). But Plaintiff's
excessive force claim in Count Five does not present such
a case. Although his alleged facial injury does not appear
in his medical records, neither is his allegation “directly
and irrefutably contradicted” by these records as was true in
Henry, Allah, or Musaid. Cf. Morehouse v. Vasquez, No. 17CV-4836, 2020 WL 1049943, at *14 (S.D.N.Y. Mar. 4, 2020)
(citation omitted) (denying summary judgment on excessive
force claim where, although “a number of [the] [p]laintiff's
alleged injuries [did] not appear in the medical records, or
[were] seemingly more serious than those that [did], not all of
[the] [p]laintiff's allegations [were] ‘directly and irrefutably
contradicted’ by the record” (citation omitted)). Because
Plaintiff has offered an alternative version of events that is not
“facially implausible,” Fincher, 604 F.3d at 726, it is for the
jury to determine whose account is more credible.
*20 Finally, unlike the Handcuff Claim, which did not “rise
to the level of injury necessary to sustain an excessive force
claim for tight handcuffs,” see Sachs, 2012 WL 3822220,
at *15, Plaintiff's alleged facial injury does constitute a
cognizable injury in the excessive force context, see Maxwell
v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004)
(“[W]e have permitted a plaintiff's claim to survive summary
judgment on allegations that, during the course of an arrest,
a police officer twisted her arm, ‘yanked’ her, and threw
her up against a car, causing only bruising.”); Ong, 2017
WL 4326540, at *13 (concluding that defendant was not
entitled to summary judgment on excessive force claim where
the plaintiff's only injuries were a “very small” bruise on
his abdomen and a second bruise on his chest); Hamilton
v. City of New York, Nos. 07-CV-3633, 07-CV-3825, 2009
WL 2226105, at *3, *11 (E.D.N.Y. July 23, 2009) (holding
that defendants were not entitled to summary judgment on
plaintiff's excessive force claim where the alleged injury was
a one-centimeter cut to plaintiff's right temple); Sforza v. City
of New York, No. 07-CV-6122, 2009 WL 857496, at *15
(S.D.N.Y. Mar. 31, 2009) (denying summary judgment where
the plaintiff had suffered bruises to her head, because “[a]
plaintiff need not demonstrate serious injury to prevail in
an excessive force claim; bruising and other nonpermanent
injuries are sufficient”).

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For these reasons, Police Defendants’ Motion is denied with
respect to Count Five.

c. Use of Force During Plaintiff's
Attempt to Swallow Drugs (Count Eight)
Police Defendants argue that the Booking Room Video
demonstrates beyond dispute that excessive force was not
used by Canario, Pitt, Saintiche, and Arestin when they
tried to prevent Plaintiff from swallowing the recovered
contraband. (See Police Defs.’ Mem. 13, 15.) The Court
agrees.
The Court has reviewed the relevant video footage in detail.
At 6:17:35 P.M., Plaintiff—whose ankle was shackled to a
bench—leaps to his left and swipes the recovered contraband
from the hands of Officer Canario. As Plaintiff quickly
spins 180 degrees to his right, he can be seen drawing
his hands toward his mouth. (See Booking 1 Video at
6:17.37.163–.390.) Canario immediately pivots to his right,
grabs the right side of Plaintiff's upper body with his right
arm, pulls his left arm over the left side of Plaintiff's upper
body, and drags Plaintiff to the ground. Although this initial
sequence unfolds in a flash, Plaintiff can be seen drawing his
left arm toward his mouth as Canario pins him to the ground.
(See id. at 6:17:37.924; see also Pl.’s Dep. 71:14–16 (Q: “So,
you stuffed it in your mouth, correct?” A: “Yes.”).) Canario
wraps his right arm around Plaintiff's head, and the two begin
to tussle on the ground as Officers Saintiche, Arestin, Pitt,
and a fourth police official swarm the scene. (See Booking 1
Video at 6:17:38.179–.711.) A fifth, unidentified officer runs
toward the scene from the left side of the frame and stands
near the edge of the commotion. (See id. at 6:17:41.147.)
Canario, Saintiche, Arestin, and Pitt can be seen kneeling
around Plaintiff and struggling to subdue him as several
seconds pass. (See id. at 6:17:45–49.) Canario suddenly pulls
his head from the scuffle, wincing and wiping his eyes, and
begins to walk away, apparently having just deployed pepper
spray. (See id. at 6:17:49.920.) Plaintiff was not in handcuffs
and still had the drugs in his mouth when Canario used pepper
spray. (See Canario Aff. ¶ 23; Saintiche Aff. ¶ 13; Arestin Aff.
¶ 7.) Pitt, Saintiche, and Arestin continue trying to subdue
Plaintiff and remove the drugs from his mouth. (See Pl.’s Dep.
72:2–4 (stating that Pitt was “all in [his] mouth” attempting
to “get the drugs out of [his] mouth”); id. 72:24–25 (officers
were yelling, “he's trying to swallow it; he's trying to swallow
it”); id. 74:2–3 (officers were yelling “he's resisting, he's

resisting”).) Saintiche can be seen kneeling over Plaintiff's
left side, Arestin is crouched near Plaintiff's head, and Pitt
straddles Plaintiff's lower body. A female officer, identified
as Myra Rude (“Officer Rude”), (see Arestin Aff. ¶ 7), runs
toward the fray, (see Booking 1 Video at 6:17:55), and another
unidentified officer approaches several seconds later, (see
id. at 6:18:03). At 6:18:06, Pitt, Saintiche, Arestin, and the
female officer are kneeling and crouching around Plaintiff,
continuing to try to subdue him and remove the drugs from
his mouth. Five seconds later, with the drugs still in Plaintiff's
mouth, Arestin deploys his taser on Plaintiff. (See id. at
6:18:11; see also Arestin Aff. ¶ 7; Saintiche Aff. ¶ 13.) As
he does this, Pitt holds Plaintiff's legs while Saintiche backs
away. After Arestin uses the taser, Plaintiff rolls over onto his
left side several seconds later. (See id. at 6:18:16.) The officers
lean back in and begin to restrain Plaintiff, with Officer Rude
helping to secure his hands in handcuffs. As Plaintiff's hands
are being secured, an unidentified officer appears to remain
crouched over Plaintiff, with his right knee securing Plaintiff's
upper legs. Meanwhile, Pitt restrains Plaintiff's lower legs
with his left knee and left hand. By 6:19:09, there is only one
officer leaning over Plaintiff, with his left hand near Plaintiff's
right shoulder. Plaintiff is lying on his left side. Plaintiff rolls
over onto his stomach at 6:19:17, and from roughly 6:19:32
until 6:21:01, Plaintiff is only restrained by a single officer,
who has his right hand near Plaintiff's right shoulder blade.
From then until 6:21:58, Plaintiff remains handcuffed on the
floor, with no officer restraining him. At that point, one of the
officers secures his legs using a pair of leg restraints. Plaintiff
is lifted to his feet at 6:23:52.
*21 When courts are confronted with an excessive force
claim, “[t]he calculus of reasonableness must embody
allowance for the fact that police officers are often forced
to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a particular situation.” Estate
of Jaquez v. City of New York, 104 F. Supp. 3d 414, 433
(S.D.N.Y. 2015) (quoting Graham, 490 U.S. at 396–97). Such
was the case here. By attempting to swallow the contraband
that had been recovered moments earlier, Plaintiff not only
threatened to destroy evidence, but also placed his own safety
in peril. Plaintiff easily could have choked on the drugs, or,
if he had managed to swallow them, there was a risk that
the small bag holding the drugs could break inside Plaintiff's
system, particularly given that it had been chewed moments
earlier. (See, e.g., Canario Aff. ¶ 22; Durbin-French Aff. ¶
24.) Confronted with these threats, the officers responded
swiftly and professionally. There were no kicks, punches, or

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other signs of gratuitous force. Moreover, it is clear that until
Arestin deployed his taser, Plaintiff continued to resist the
officers’ attempts to subdue him and remove the contraband
from his mouth. Under these circumstances, it was reasonable
for the officers to respond with some amount of force. See
Graham, 490 U.S. at 396 (noting that two factors courts may
consider in evaluating the reasonableness of force are (1)
“whether the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting
arrest” (emphasis added)); Mobley v. Matayeva, No. 15CV-3418, 2020 WL 5577711, at *4 (E.D.N.Y. Sept. 17, 2020)
(recognizing that force may be used to prevent “an immediate
threat to [the] [p]laintiff's health and safety,” particularly
where, “[h]ad the bag [of drugs inserted in plaintiff's rectum]
perforated, the drugs contained therein would have made
their way into [p]laintiff's system, putting his health at grave
risk”). Moreover, the nature of the force used—holding
Plaintiff against the ground, securing his arms and legs,
and attempting to pry the contraband from his mouth—was
entirely reasonable under the circumstances. See Casiano v.
Ashley, — F. Supp. 3d —, 2021 WL 281460, at *4 (W.D.N.Y.
Jan. 28, 2021) (dismissing excessive force claim on summary
judgment where video evidence showed that the defendants
“did not strike [the pretrial detainee],” but “grappled with
her and wrestled her to the ground”); Frost v. City of
New York, No. 15-CV-4843, 2019 WL 1382323, at *5, *11
(S.D.N.Y. Mar. 27, 2019) (dismissing excessive force claim
on summary judgment where video evidence “establishe[d]
that defendants used only force [against a pretrial detainee]
that was objectively reasonable”), aff'd in relevant part, rev'd
and vacated in part on other grounds, 980 F.3d 231, 256
(2d Cir. 2020) (observing that “although perhaps the struggle
between [plaintiff] and the [defendants] could have been
gentler,” the defendants “were justified in using nontrivial
amounts of force” in light of the “security problem at issue;
the threat reasonably perceived by the [defendants]; and
the fact that [plaintiff] was actively resisting” (brackets and
citation omitted)); Boomer v. Lanigan, No. 00-CV-5540, 2002
WL 31413804, at *2, *6 (S.D.N.Y. Oct. 25, 2002) (granting
summary judgment where video evidence showed a “scuffle”
in which the defendants pushed the plaintiff into a cell and
held him in place for several minutes, none of which showed
“wantonness” on the part of defendants).
Canario's use of pepper spray was also reasonable under the
circumstances. “The use of pepper spray is not an actionable
constitutional violation where there is no lasting injury, and
where the subject was not cooperating with law enforcement.”
Walton v. Lee, No. 15-CV-3080, 2019 WL 1437912, at *6

(S.D.N.Y. Mar. 29, 2019); see also Williams v. City of New
York, No. 05-CV-10230, 2007 WL 2214390, at *12 (S.D.N.Y.
July 26, 2007) (holding that an excessive force claim based
on an officer's use of mace was “not actionable” where the
plaintiff had not alleged any injuries apart from “the expected
side-effects: temporary discomfort and disorientation”). As
was true of another Newburgh police officer in Singleton v.
City of Newburgh, 1 F. Supp. 2d 306 (S.D.N.Y. 1998), “it was
not unreasonable for [Canario] to direct a stream of pepper
spray at [Plaintiff],” particularly “[g]iven the undisputed
evidence that he believed [Plaintiff] was about to swallow
contraband,” id. at 315; see also Casiano, 2021 WL 281460,
at *4 (granting summary judgment where video evidence
showed that the pretrial detainee “received one burst of pepper
spray,” without “any lasting or serious effects,” and “was
subdued relatively quickly and without resort to punches,
kicks, or other forceful blows that might have inflicted greater
injury”).
Arestin's use of the taser was likewise reasonable. The
Court is mindful that use of a taser constitutes a “serious
intrusion.” Read v. Town of Suffern Police Dep't, No. 10CV-9042, 2013 WL 3193413, at *8 (S.D.N.Y. June 25,
2013) (citation omitted) (finding that issues of fact precluded
summary judgment where the defendant had allegedly tased
the plaintiff a second time after he was already immobilized).
Here, however, the circumstances justified this technique. The
video shows that even after Canario deployed the pepper
spray, (see Booking 1 Video at 6:17:49.920), the officers
continued struggling to subdue Plaintiff and remove the
contraband for approximately 22 additional seconds until
Arestin used the taser, (see id. at 6:18:11). Where, as
here, an arrestee is unrestrained and actively non-compliant
with officers’ directives, it is reasonable for officers to
use a taser. See Scoma v. City of New York, No. 16CV-6693, 2021 WL 230295, at *9 (E.D.N.Y. Jan. 22, 2021)
(granting summary judgment because defendant's first taser
deployment was reasonable to subdue an “unrestrained,
uncooperative” arrestee who had engaged in a serious
offense); Gomez v. Village of Sleepy Hollow, No. 07CV-9310, 2011 WL 2652450, at *11 (S.D.N.Y. July 6, 2011)
(holding that an officer's use of a taser was reasonable in
light of an “uncertain[ ] and volatil[e]” situation in which
the plaintiff resisted arrest and refused to comply with the
officer's orders not to move); Towsley v. Frank, No. 09CV-23, 2010 WL 5394837, at *7–8 (D. Vt. Dec. 28, 2010)
(concluding on summary judgment that a defendant's first
taser deployment was reasonable in an “increasingly tense
and uncertain” situation where the officers used the taser to

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subdue an arrestee “who was under the influence of drugs,”
was “verbally combative” with officers, and was threatening
to jump out of a window). 20 For the reasons above, Police
Defendants’ Motion is granted with respect to Count Eight.
20

Although the Court need not reach the qualified
immunity analysis in light of its finding that the
use of force itself was objectively reasonable, the
Court has little doubt that Arestin would be entitled
to qualified immunity under these circumstances.
See, e.g., Sanders v. City of Dothan, 409 F. App'x
285, 287 (11th Cir. 2011) (concluding that an
officer was entitled to qualified immunity where
he had “tasered [the plaintiff] in furtherance of the
legitimate law-enforcement activity of searching
for contraband in [the plaintiff's] mouth to prevent
him from possibly destroying it by swallowing the
contraband”).

3. Unreasonable Search Claim (Count Six)
*22 In Count Six, Plaintiff asserts that Police Defendants
Canario, Pitt, Saintiche, and Arestin conducted an
unreasonable search in violation of his Fourth Amendment
rights. (SAC ¶ 123.) As opposed to the unreasonable search
claims in Counts 15 and 16, which are based on events that
unfolded later in the evening at St. Luke's, (see id. ¶¶ 92–
98, 132–33), Count Six is based on the search that took
place in the strip search room at the Newburgh police station,
(see id. ¶¶ 46–65, 123). 21 Although Police Defendants have
not moved for summary judgment on Count Six, (see Police
Defs.’ Mem. 35), Plaintiff has, (see Pl.’s Mem. 8).
21

In the Second Amended Complaint, Plaintiff
indicates that Count Six is based on Police
Defendants’ (1) “repeated orders to strip search”;
(2) “using physical force to secure [Plaintiff's] arms
and legs against wall”; (3) “touching and grabbing
[Plaintiff's] buttocks”; (4) “punch[ing] [Plaintiff]
in the face”; (5) “punching and kneeing [Plaintiff]
in the ribs[,] causing noticeable injuries”; and
(6) “penetrating [Plaintiff's] body cavity[,] causing
physical and emotional injuries.” (SAC ¶ 123.)
The second, fourth, and fifth actions described by
Plaintiff go toward his excessive force claim in
Count Five, and the Court has therefore addressed
these actions in a separate context supra. For

purposes of analyzing Count Six, the Court will
consider only the remaining actions described by
Plaintiff, which are appropriately construed as
supporting an unreasonable search claim.
In evaluating Plaintiff's claim, the Court will adopt the
same terminology some courts in the Second Circuit have
used when evaluating similar actions in the law-enforcement
context. Thus,

(1) a “strip search” occurs when a
suspect is required to remove his
clothes; (2) a “visual body cavity
search” is one in which the police
observe the suspect's body cavities
without touching them (as by having
the suspect to bend over, or squat and
cough, while naked); (3) a “manual
body cavity search” occurs when the
police put anything into a suspect's
body cavity, or take anything out.

Gonzalez v. City of Schenectady, 728 F.3d 149, 158 (2d Cir.
2013) (citing People v. Hall, 886 N.E.2d 162, 165 (N.Y.
2008)); see also Sloley v. VanBramer, 945 F.3d 30, 36–37
(2d Cir. 2019) (relying on the categorical definitions adopted
in Gonzalez); Bobbit v. Marzan, Nos. 18-CV-2465, 16CV-2042, 2020 WL 5633000, at *9 (S.D.N.Y. Sept. 21, 2020)
(same). Thus, a “strip search” enables officers to examine a
subject when “he stands naked in their presence.” Monroe v.
Gould, 372 F. Supp. 3d 197, 204 (S.D.N.Y. 2019) (quoting
United States v. Gonzalez, 111 F. Supp. 3d 416, 431 (S.D.N.Y.
2015)). A “visual body cavity search” is more invasive, and
may require, for example, that the subject squat, bend over,
or even “hold his buttocks open to allow officers to visually
inspect his anus.” Monroe, 372 F. Supp 3d at 204 (citation
omitted). However, this type of search involves no touching
by the officers. Id. The “most invasive type of search” is the
“manual body cavity search,” which “crosses from a visual to
a manual inspection of the subject's body cavity,” id. (citation
omitted), and includes “some degree of touching or probing
of body cavities,” id. (quoting Harris v. Miller, 818 F.3d
49, 58 (2d Cir. 2016)). Framing the relevant events within
this terminology, all Parties agree that a “strip search” and
“visual body cavity search” occurred at the Newburgh police
station. (See SAC ¶¶ 48–50; Saintiche Aff. ¶¶ 6–7; Anderson
Aff. ¶ 7.) But while Police Defendants maintain that their
search of Plaintiff ended there, (see Defs.’ 56.1 ¶ 48), Plaintiff

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alleges that Canario, Pitt, Saintiche, and Arestin took it one
step further, performing a “manual body cavity search” by
“forcefully penetrat[ing] [his] anal cavity and snatch[ing]” the
small bag of drugs hidden within, (SAC ¶ 63).
*23 As an initial matter, Police Defendants make a
procedural objection based on Plaintiff's main argument in
support of his Motion. In the Second Amended Complaint,
Plaintiff's unreasonable search claim appears to be predicated
on his allegation that Police Defendants unlawfully conducted
a manual body cavity search. (See id. ¶¶ 46–65, 123.) But in
the Memorandum of Law Plaintiff has submitted in support
of his Motion, he argues that the visual body cavity search
itself constituted an unreasonable search. (See Pl.’s Mem. 13–
15.) Police Defendants argue that “no such claim is raised
in the Second Amended Complaint[,]” which “only asserts
[that] the manual spreading of his buttocks and [the] digital
exam were unlawful.” (Police Defs.’ Mem. of Law in Opp'n to
Pl.’s Mot. for Summ. J. (“Police Defs.’ Opp'n”) 1, 2 (Dkt. No.
193).) They contend that Plaintiff should not be permitted to
“amend his [Second Amended] [C]omplaint via a motion for
summary judgment[,]” and that “[i]t is equally inappropriate
to affirmatively seek summary judgment on a claim that is not
pled in [this document].” (Id. at 2.)
Although there is some merit to Police Defendants’ complaint
of whipsawing, the Court will nevertheless consider Plaintiff's
argument regarding the visual body cavity search, for two
reasons. First, the factual allegations underpinning this
argument were all pled in detail in the Second Amended
Complaint, a critical feature that distinguishes this case from
each of those relied upon by Police Defendants. Cf. Wilson
v. City of New York, 480 F. App'x 592, 594 (2d Cir. 2012)
(summary order) (concluding that a plaintiff had waived any
argument based on his excessive pre-arraignment detention
where his complaint “contain[ed] no factual allegation
regarding the length of his detention before being arraigned,
or the times at which he was arrested or presented in court[,]”
but had instead “focuse[d] on [his] ... prolonged pre-trial
detention, [without] ma[king] [any] reference to an excessive
delay in arraignment” (emphasis added)); Greenidge v.
Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006) (concluding
that the plaintiffs could not raise an argument based on
the defendant's alleged failure to issue a timely disclaimer
where the complaint “[did] not make any reference to [the
defendant's] alleged failure to disclaim coverage”); Froio v.
Monroe-Woodbury Cent. Sch. Dist., No. 17-CV-604, 2020
WL 2731970, at *7 n.6 (S.D.N.Y. May 26, 2020) (declining to
consider a failure-to-accommodate claim where the plaintiff

had entirely failed to allege such a claim in her second
amended complaint, and had “not describe[d] a reasonable
accommodation to which she was entitled but ... [had]
not receive[d]”). Second, because Plaintiff is proceeding
pro se—another feature that distinguishes this case from
each of those cited by Police Defendants—the Court has
an obligation to construe his submissions “liberally” and
interpret them “to raise the strongest arguments that they
suggest,” Triestman, 470 F.3d at 474. Accordingly, the Court
will consider Plaintiff's argument that the visual body cavity
search itself was unreasonable.

a. Whether Visual Body Cavity
Search Violated Fourth Amendment
In Sloley v. VanBramer, the Second Circuit held that law
enforcement must have “reasonable suspicion” to conduct a
lawful visual body cavity search. See 945 F.3d at 38. Although
the Second Circuit had previously applied the “reasonable
suspicion” standard to strip searches, Sloley recognized that
“visual body cavity searches are even more intrusive[,]”
requiring a person not only to “strip naked in front of a
stranger, but also to expose the most private areas of [his]
body to others[,]” often while “assum[ing] degrading and
humiliating positions.” Id. (citation omitted). Accordingly,
Sloley formally extended the “reasonable suspicion” standard
to visual body cavity searches, see id. at 38, notwithstanding
the fact that some district courts in the Second Circuit had
been applying this standard to such searches already, see id.
at 40–41 (gathering cases and observing that, “[a]s numerous
district courts in this Circuit have recognized, Supreme Court
and Second Circuit precedent clearly foreshadowed the rule
we clarify today”); see also, e.g., Sims v. Farrelly, No. 10CV-4765, 2013 WL 3972460, at *8 (S.D.N.Y. Aug. 2, 2013);
Sarnicola v. County of Westchester, 229 F. Supp. 2d 259, 274
(S.D.N.Y. 2002). After Sloley, there is no doubt that “a visual
body cavity search conducted as an incident to a lawful arrest
for any offense must be supported by a specific, articulable
factual basis supporting a reasonable suspicion to believe the
arrestee secreted evidence inside a body cavity.” Sloley, 945
F.3d at 38 (citation and quotation marks omitted).

i. Whether Police Defendants Had Reasonable Suspicion
*24 Reasonable suspicion requires more than a “mere
hunch,” but “the level of suspicion the standard requires
is considerably less than proof of wrongdoing by a

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preponderance of the evidence, and obviously less than is
necessary for probable cause.” Sloley, 945 F.3d at 43 (quoting
Navarette v. California, 572 U.S. 393, 397 (2014)). To
decide whether an officer had reasonable suspicion that would
warrant a visual body cavity search, courts “must look at
the totality of the circumstances.” Id. at 43 (quoting United
States v. Arvizu, 534 U.S. 266, 273 (2002)); see also Bobbit,
2020 WL 5633000, at *11 (“Reasonable suspicion must be
assessed ‘in light of the totality of the circumstances known
to the officers at the time the search was begun.” (quoting
United States v. Chirino, 483 F.3d 141, 148 (2d Cir. 2007))).
An officer must be able to “point to specific objective facts
and rational inferences that [he] [is] entitled to draw from
those facts in light of [his] experience.” Bobbit, 2020 WL
5633000, at *9 (quoting Hartline v. Gallo, 546 F.3d 95, 100
(2d Cir. 2008)). Finally, courts in the Second Circuit have
repeatedly emphasized that the reasonable suspicion standard
requires an individualized inquiry. That is, “[t]he standard
requires individualized suspicion, specifically directed to the
person who is targeted for the strip [or visual body cavity]
search.” Hartline, 546 F.3d at 100; see also Sloley, 945 F.3d
at 46 (concluding that, “in the absence of indicia” which the
Second Circuit and New York State courts have “found to
support individualized reasonable suspicion” that an arrestee
is “secreting drugs inside his anal cavity,” the defendant
officer was not entitled to qualified immunity in connection
with his visual body cavity search of the plaintiff (emphasis
added) (citation omitted)); Cannon v. Port Auth. of N.Y. &
N.J., No. 15-CV-4579, 2020 WL 6290665, at *4 (S.DN.Y.
Oct. 27, 2020) (recognizing that “visual body cavity searches
at a police station ‘are still subject to the Hartline standard
requiring individualized reasonable suspicion’ ” (quoting
Blue v. City of New York, No. 14-CV-7836, 2018 WL
1136613, at *15 (S.D.N.Y. Mar. 1, 2018))); Bobbit, 2020 WL
5633000, at *9 (recognizing the “individualized suspicion”
requirement in considering whether officers had reasonable
suspicion to perform visual body cavity search).
Gathering relevant authority from New York State courts,
Sloley identified various factors that can support a reasonable
suspicion that an arrestee is secreting narcotics inside his
person. See 945 F.3d at 46. 22 For example, officers may
have reasonable suspicion where the arrestee is seen placing
his hands down his pants or making similarly suspicious
movements. People v. Hunter, 902 N.Y.S.2d 678, 679–80
(App. Div. 2010) (finding reasonable suspicion based in part
on the officers’ observation of the arrestee “fidgeting with
his hands down the back of his pants”); People v. Harry, 884
N.Y.S.2d 712, 712–13 (App. Div. 2009) (finding reasonable

suspicion where an arrestee was placed in a patrol car and
observed “moving around a lot, like sliding up and down in
his seat and making movements with his hands” as though
he were attempting to place or remove something from
his pants); People v. Clayton, 868 N.Y.S.2d 303, 305–06
(App. Div. 2008) (finding reasonable suspicion where the
arrestee was observed “wiggling around” in the patrol car
and placing his hands in an area where the officer had felt a
hard object during a pat-and-frisk). An officer may also have
reasonable suspicion based on information that a particular
arrestee is secreting objects in his person, or that he has a
custom of doing so. See Hunter, 902 N.Y.S.2d at 680 (finding
reasonable suspicion based in part on information the officers
had received from a confidential informant that the arrestee
“had a habit of carrying narcotics in his rectum”); Clayton,
868 N.Y.S.2d at 306 (finding reasonable suspicion based
in part on the defendant's “history of secreting contraband
in his rectum”). Finally, an officer clearly has reasonable
suspicion where he has watched a suspect “retriev[e] an item
from his buttocks area and exchang[e] it for money from a
person found in possession of drugs minutes later.” People v.
Barnville, 819 N.Y.S.2d 234, 236 (App. Div. 2006).
22

New York courts and the Second Circuit share
the same reasonable suspicion standard with
respect to visual body cavity searches. Indeed, the
rule adopted in Sloley—that officers must have
“a specific, articulable factual basis supporting
a reasonable suspicion to believe the arrestee
secreted evidence inside a body cavity”—was
borrowed from a 2008 decision by New York's
highest court. See Sloley, 945 F.3d at 41 &
n.8 (discussing the New York Court of Appeals’
decision in Hall, 886 N.E.2d 162, which interpreted
the Fourth Amendment, rather than the New York
state constitution).

*25 None of these factors is present in this case. Instead,
Police Defendants have invoked two separate considerations
which they maintain give rise to reasonable suspicion. First,
they argue that “Plaintiff was observed selling drugs in an area
of Newburgh known for a great deal of drug activity.” (Police
Defs.’ Opp'n 5.) And second, they argue that “it was well
known to police, prescient in this case, that drug dealers
‘cheek’ their drugs to conceal them from police.” (Id.) The
Court will address each in order.
That Plaintiff was observed selling drugs shortly before his
arrest must of course bear some weight in the Court's analysis.
See Sloley, 945 F.3d at 39 (“To be sure, the type of crime

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for which someone is arrested may play some role in the
analysis of whether a visual body cavity search incident to
that arrest is supported by reasonable suspicion.”). As the
court observed in Sloley, “one may well more reasonably
expect someone arrested for a misdemeanor drug offense to
be secreting contraband than someone arrested for felony tax
fraud.” Id.
But although the “crime of arrest” is “one [factor] officers
may take into account in their consideration of the totality
of the circumstances surrounding [a] search[,]” it “is not
a determinative factor[.]” Id. Indeed, courts in the Second
Circuit have repeatedly recognized the rule that “being
arrested for a narcotics offense does not automatically give
rise to a reasonable suspicion to justify a strip search and
visual cavity inspection.” Quiles v. City of New York, No.
15-CV-1055, 2016 WL 6084078, at *11 (S.D.N.Y. Oct. 12,
2016) (emphasis in original); see also Nelson v. City of New
York, No. 18-CV-4636, 2019 WL 3779420, at *8 (S.D.N.Y.
Aug. 9, 2019) (stating same rule); Monroe, 372 F. Supp.
3d at 204 (same); Cordero v. City of New York, 282 F.
Supp. 3d 549, 562 (E.D.N.Y. 2017) (same); Green v. City
of Mount Vernon, 96 F. Supp. 3d 263, 292 (S.D.N.Y. 2015)
(same); Sims, 2013 WL 3972460, at *8 (same); Sarnicola,
229 F. Supp. 2d at 273–74 (same, and noting that “[a]n
automatic justification for strip searches based on an arrest
for a drug-related crime would be inconsistent with the legal
concept of reasonable suspicion based on the totality of
the circumstances”). In Sims v. Farrelly, for example, the
plaintiff was arrested at the scene of a drug bust, taken to the
police station, and subjected to a visual body cavity search.
See 2013 WL 3972460, at *2–3. The stated basis for this
search was “the narcotics nature of the incident, the easy
concealability ... of crack cocaine, and the criminal history
of many of the subjects.” Id. at *8 (record citation omitted).
Denying the defendant's motion for summary judgment on the
plaintiff's unreasonable search claim, Judge Ramos concluded
that this “general[ ]” rationale was insufficient to sustain an
“individualized reasonable suspicion ... that [the] [p]laintiff
was secreting narcotics on his person.” Id. Similarly, in
Sarnicola v. County of Westchester, the defendant officer had
“ordered a strip search [of the plaintiff] simply and solely
because [the plaintiff] was arrested for suspected involvement
in a drug-related felony.” 229 F. Supp. 2d at 274. Granting the
plaintiff's motion for summary judgment on her unreasonable
search claim, then- (now Chief) Judge McMahon concluded
that because the defendant “had no particularized reason
to suspect that [the plaintiff] was secreting drugs on her
person[,]” his search failed to “pass constitutional muster.”

Id. Thus, Plaintiff's arrest for a narcotics offense does not,
without more, establish reasonable suspicion for the visual
body cavity search that was performed.
*26 Here, of course, Police Defendants argue they had
reasonable suspicion for the search not merely because
Plaintiff was arrested for a narcotics offense, but because
he was actually observed dealing drugs. (See Police
Defs.’ Opp'n 5 (noting that “Plaintiff was observed selling
drugs” (emphasis added)).) But in the absence of specific
signs that Plaintiff was actually secreting drugs inside a body
cavity, there is still no individualized reasonable suspicion to
justify the search. The Second Circuit applied this principle in
Hartline v. Gallo. There, the plaintiff was arrested following
a traffic stop in which the officer observed the stem of a
marijuana plant on the floor of her car and subsequently found
the butt of a marijuana cigarette, a pipe, and a container with
a few seeds. 546 F.3d at 97–98. The plaintiff was subjected
to a visual body cavity search when she arrived at the police
station. See id. at 98. Reversing the district court's decision
granting summary judgment for the defendants, the Second
Circuit held that the officer's search had violated the Fourth
Amendment. See id. at 101. In the court's analysis, the absence
of any indication that the plaintiff was concealing drugs in
her body proved decisive. The officer, for example, “had no
reason to believe that [the plaintiff] was under the influence
of narcotics at the time of her arrest.” Id. He “found no
useable narcotics in [her] vehicle, nor did he see [her] take
any suspicious actions which might have suggested she was
hiding something as he approached her vehicle.” Id. He
noticed nothing in her “physical appearance that suggested
she was secreting drugs on her person, nor did he engage in a
less invasive pat down search that suggested the presence of
contraband.” Id. 23 Under these facts, the officer's visual body
cavity search was not supported by individualized reasonable
suspicion, and the plaintiff's “Fourth Amendment rights were
violated,” id. at 102.
23

Though the Second Circuit also observed that
the plaintiff “had been arrested for nothing more
serious than a B-misdemeanor[,]” Hartline, 546
F.3d at 101, the Second Circuit held in Sloley that
whether an offense is a misdemeanor or felony
makes no difference in the Fourth Amendment
reasonable-suspicion analysis, see Sloley, 945 F.3d
at 38–39 (noting that “it makes little sense in
this context to draw Fourth Amendment lines that
rest on the felony-misdemeanor distinction[,]” and
“clarify[ing] ... that th[e] rule [that strip searches

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conducted incident to a misdemeanor arrest be
supported by reasonable suspicion] applies equally
to visual body cavity searches incident to all
arrests”).
Similarly, in Sloley, an officer had performed a visual body
cavity search on an arrestee whom the officer suspected
was involved in illegal drug activity. See 945 F.3d at 35
(“According to [the officer], he recognized [the plaintiff's]
name ‘as referring to an individual who was well known in
the area for being wrapped up in illegal drugs.’ ” (record
citation omitted)). Although there was a factual dispute over
whether the officer had recovered crack cocaine from the
plaintiff's vehicle prior to the visual body cavity search, the
Second Circuit concluded that “once th[at] disputed fact ...
[was] disregarded, the evidence available to [the officer]
support[ed] no more than a mere hunch that [the plaintiff] was
secreting drugs inside his anal cavity.” Id. at 46. There was
“no evidence,” for example,

that [the plaintiff] was fidgeting or
moved about suspiciously, that he
reached or attempted to reach his
hands down his pants, that anyone
observed [him] putting drugs down his
pants or retrieving drugs (or anything
else) from inside his pants, or that
[he] himself was previously known to
secrete drugs inside his anal cavity.

Id. (citations omitted). Reversing the district court's grant
of summary judgment for the defense, the Second Circuit
concluded that the officer's “ ‘hunch of criminal activity [was]
insufficient’ to establish reasonable suspicion.” Id. (citation
omitted).
Lower courts in the Second Circuit have reached the same
conclusion under similar facts. In Bobbit v. Marzan, for
example, the police performed a visual body cavity search
after the plaintiff tried to enter Green Haven Correctional
Facility “with pills, vials of an unknown liquid substance,
and bread, together in plastic wrap,” that were discovered
in her sock during a security scan. 2020 WL 5633000, at
*11. The court concluded that these facts did not “give
rise to reasonable suspicion that would justify the intrusive
search performed on [the] [p]laintiff,” id. The court observed
that “[i]t [was] not reasonable to infer from the discovery
of contraband in [the] [p]laintiff's sock that she was also

concealing contraband on her body in locations where it could
only be accessed by requiring her to fully disrobe, squat to
expose her private parts, and use the bathroom, all in view
of an officer.” Id. “If anything,” the court explained, “the
natural inference is the reverse: a smuggler would not risk
concealing a bulky package in her sock if she also was willing
to secrete contraband in more sensitive parts of her body.” Id.
Moreover, there was “no evidence” the plaintiff had shown
any signs of concealing contraband in a body cavity, such
as fidgeting suspiciously or reaching down her pants, nor
was there evidence to suggest she had a reputation for such
concealment. Id. Accordingly, the court granted the plaintiff's
motion for summary judgment on her Fourth Amendment
claim. See id. at *12.
*27 In Monroe v. Gould, an officer had performed a manual
body cavity search on the plaintiff after the latter was arrested
for possessing marijuana and a gravity knife. See 372 F.
Supp. 3d at 204. But although the police had “found [the]
plaintiff walking away from a vehicle containing cocaine, and
a subsequent search of [the] plaintiff [had] revealed marijuana
and a gravity knife on his person,” the police could “not point
to [the] plaintiff's physical appearance, apparent discomfort,
or any suspicious actions or other articulable facts which
might have suggested he was hiding something inside his
body.” Id. at 204–05 (emphasis omitted). Having found that
the officer lacked reasonable suspicion for the search, the
court denied the defendants’ motion for summary judgment
based on this search. See id. at 205.
As the foregoing cases suggest, without some particular
indicator that Plaintiff was secreting drugs inside his body,
the fact that he was arrested for reportedly dealing drugs
is insufficient to establish reasonable suspicion. Although
Police Defendants muddy the waters by invoking Plaintiff's
subsequent testimony that it was his practice to conceal drugs
in his anal cavity, (see Police Defs.’ Opp'n 5; Pl.’s Dep.
25:19–26:7), there is no evidence the officers knew this fact
at the time of the search, and thus, it is irrelevant, see Bobbit,
2020 WL 5633000, at *11 (“Reasonable suspicion must be
assessed ‘in light of the totality of the circumstances known
to the officers at the time the search was begun.’ ” (citation
omitted)). In sum, Police Defendants’ first asserted basis for
reasonable suspicion—the fact that Plaintiff was observed
dealing drugs, (see Police Defs.’ Opp'n 5)—does not, without
more, support such a suspicion. Insofar as Police Defendants
also rely on the fact that Plaintiff was observed dealing drugs
“in an area of Newburgh known for a great deal of drug
activity,” (id.), this argument fails for the obvious reason that

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it does not describe an “individualized suspicion, specifically
directed to the person who is targeted for the [visual body
cavity] search.” Bobbit, 2020 WL 5633000, at *9 (quoting
Hartline, 546 F.3d at 100). Unsurprisingly, Police Defendants
provide no authority for the proposition that police have
reasonable suspicion to invade a suspect's privacy when they
arrest him in a neighborhood afflicted by crime. Such a
notion runs contrary to well-established law and offends the
protections enshrined in the Fourth Amendment.
Police Defendants’ second asserted basis for reasonable
suspicion—that “it was well known to police ... that
drug dealers ‘cheek’ their drugs to conceal them from
police,” (Police Defs.’ Opp'n 5)—fails for the same reason.
This statement describes a generalized suspicion, rather
than one individualized to Plaintiff specifically. Without
a particular reason to believe that Plaintiff himself had
a custom of secreting drugs inside his body cavity, the
officers’ knowledge regarding drug dealers generally does
not establish reasonable suspicion. See Sloley, 945 F.3d
at 46 (finding no reasonable suspicion where the plaintiff
“himself was [not] previously known to secrete drugs inside
his anal cavity”). Indeed, another court in this District
has rejected an argument similar to the one advanced by
Police Defendants. See Bobbit, 2020 WL 5633000, at *11–12
(finding no reasonable suspicion for visual body cavity search
notwithstanding the assertion, proffered by the officer who
ordered the search, “that in his experience, behavior like [the]
[p]laintiff's [was] consistent with an effort to hide drugs”).
In view of the basic principle that reasonable suspicion must
be “specifically directed to the person who is targeted” for
a visual body cavity search, id. at *9, Police Defendants did
not have such suspicion based on the alleged custom of other
drug dealers. For this and the reasons stated above, Police
Defendants Canario, Pitt, Saintiche, and Arestin did not have
reasonable suspicion to perform a visual body cavity search
on Plaintiff.

in the light most favorable to the plaintiff, the defendant's
actions did not violate clearly established law.” Bobbit, 2020
WL 5633000, at *4 (quoting Husain v. Springer, 494 F.3d
108, 131 (2d Cir. 2007)). Where, as here, an officer must
“have reasonable suspicion before undertaking a search,
[he] is entitled to qualified immunity unless [a court] can
say on the somewhat unique facts before [it] that it is
clearly established that no reasonable suspicion justified a
visual body cavity search.” Sloley, 945 F.3d at 43 (citation
and quotation marks omitted). “Stated differently, qualified
immunity is unavailable if ‘no reasonable officer could have
believed that there was reasonable suspicion.’ ” Id. (quoting
Dancy v. McGinley, 843 F.3d 93, 108 (2d Cir. 2016)).
Sloley precludes qualified immunity in this case. Sloley held
that as of 2013,

every reasonable officer in the
[defendants’] position as New York
State Troopers would have known [the
rule] that visual body cavity searches
conducted incident to any arrest must
additionally be supported by a specific,
articulable factual basis supporting a
reasonable suspicion to believe the
arrestee secreted evidence inside a
body cavity.

Sloley, 945 F.3d at 40 (citation and quotation marks omitted);
Sanchez v. Bonacchi, 799 F. App'x 60, 62 (2d Cir. 2020)
(summary order) (recognizing that “[u]nder Sloley, as of
2013, ... [this rule] was clearly established”); Bobbit, 2020
WL 5633000, at *12 (recognizing same). Thus, after finding
that the defendant lacked reasonable suspicion to perform a
visual body cavity search, the Second Circuit concluded as
follows:

ii. Whether Police Defendants Are Qualifiedly Immune
*28 Of course, “[c]oncluding that a constitutional violation
has been established is only the first step in a two-step
inquiry.” Murcia v. County of Orange, 226 F. Supp. 2d
489, 496 (S.D.N.Y. 2002). The Court must also consider
the possibility that Canario, Pitt, Saintiche, and Arestin are
entitled to qualified immunity. See id. “To be entitled to
qualified immunity at the summary judgment stage of a
case, a defendant must show that, even viewing the evidence

[I]n the absence of indicia that this
[c]ourt or New York State courts
have found to support individualized
reasonable suspicion that [a suspect]
was secreting drugs inside his anal
cavity, ... no reasonable officer
could have believed that there was

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2021 WL 1164185

reasonable suspicion to conduct a
visual body cavity search.

Sloley, 945 F.3d at 46 (citations, brackets, and quotation
marks omitted). Because the events in this case occurred
on May 8, 2015, well after the reasonable-suspicion rule
with respect to visual body cavity searches was “clearly
established,” the Police Defendants who performed such a
search on Plaintiff are not entitled to qualified immunity. In
the absence of any evidence that has been held to support
reasonable suspicion in this context—such as fidgeting or
moving suspiciously, reaching into one's pants, or having an
individual reputation for concealing drugs inside one's body
cavity—this Court must conclude, as did the Second Circuit in
Sloley, that “no reasonable officer could have believed ... there
was reasonable suspicion to conduct a visual body cavity
search.” Id. (quotation marks omitted).
Accordingly, Plaintiff's Motion for Summary Judgment with
respect to the visual body cavity search alleged in Count Six
is granted.

b. Alleged Manual Body Cavity Search
Insofar as Plaintiff moves for summary judgment with respect
to the alleged manual body cavity search, the Motion is
denied. Whereas Plaintiff maintains that “one of the[ ] officers
“forcefully penetrate[d] [his] anal cavity and snatch[ed]” the
bag of drugs secreted there, (SAC ¶ 63), the officers deny
that any such manual inspection occurred, (see Canario Aff.
¶ 16; Arestin Aff. ¶ 5). The Court is therefore presented with
a “factual clash” it may not resolve on summary judgment.
See Kassel, 272 F. Supp. 3d at 535. Accordingly, Plaintiff's
Motion is denied with respect to that portion of Count Six that
involves the alleged manual body cavity search.

4. Sexual Harassment and Sexual Abuse Claims Based
on Events at Police Station (Counts Three and Four)
*29 Plaintiff styles Count Three as a claim for “sexual
harassment” against Canario, Pitt, Saintiche, and Arestin
based on “repeated orders to strip search a second time, using
physical force, touching and grabbing [his] buttocks[,] and
penetrating [his] body cavity.” (SAC ¶ 120.) This claim is
based on the allegations in paragraphs 48–57 of the Second
Amended Complaint, which recount Plaintiff's version of

what occurred in the strip search room at the Newburgh
police station. (See id. ¶¶ 48–57, 120.) Similarly, Plaintiff
styles Count Four as a claim for “sexual abuse” against
Canario, Pitt, Saintiche, and Arestin for “using physical force,
touching and grabbing [his] buttocks[,] and penetrating [his]
body cavity.” (Id. ¶ 121.) This claim is based on paragraphs
63–64 of the Second Amended Complaint, which describe
the specific moment at which Plaintiff allegedly felt an
unidentified officer “forcefully penetrate [his] anal cavity and
snatch the plastic sandwich baggie containing the white-rock
like substance [Plaintiff] had hidden there.” (Id. ¶ 63.) The
crux of Plaintiff's theory is that “the officers[’] actions in
conducting the strip search rise to the level of sexual assault,”
and thus, he argues, “there is a genuine issue of material fact
regarding whether their actions were unreasonable under the
Fourth Amendment.” (Pl.’s Opp'n 9.)
Police Defendants have moved for summary judgment on
both claims, arguing that, “[w]ithout some evidence the
officers did the exam with a sexualized motive such as
their own gratification or [Plaintiff's] sexual humiliation[,]
there is nothing to support a claim of sexual harassment
or abuse.” (Police Defs.’ Mem. 28.) They also note that
“[d]ismissal of these [two] causes of action will not prevent
[Plaintiff] from offering evidence in support of his [s]ixth
[c]ause of [a]ction” alleging an unreasonable search in
violation of the Fourth Amendment, (id. at 29), which the
Court has already discussed supra. But “[t]he record,” Police
Defendants argue, “does not support separate claims of sexual
abuse and harassment.” (Id.)
In opposition to Police Defendants’ Motion, Plaintiff invokes
Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997). (See
Pl.’s Opp'n 10.) In Boddie, the Second Circuit considered
whether “the sexual abuse of an inmate by a corrections
officer may reach constitutional dimensions and give rise
to an Eighth Amendment claim under [§] 1983.” See
105 F.3d at 859. As the Court explained, the Eighth
Amendment “sets constitutional boundaries on the conditions
of imprisonment[,]” proscribing the “unnecessary and wanton
infliction of pain” that constitutes “cruel and unusual
punishment.” Id. at 861. An Eighth Amendment violation
has two components: “First, the alleged ‘punishment’ must
be, ‘objectively, sufficiently serious[ ]’ ”; and second, “the
prison official involved must have a ‘sufficiently culpable
state of mind.’ ” Id. (citations omitted). In Boddie, the court
concluded that allegations of sexual abuse may satisfy both
elements of the constitutional test, “thereby stating an Eighth
Amendment claim under [§] 1983.” Id.

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Boddie, however, does not govern this case. Plaintiff was not
incarcerated when the alleged violations occurred, and thus,
his claims do not arise under the Eighth Amendment. As
discussed in Section II.B.2.b supra, because Plaintiff was still
in the custody of the police and had not yet been formally
arraigned when the alleged abuses occurred, his claims are
properly examined under the Fourth Amendment.
It is well-established, moreover, that “sexual misconduct by a
police officer during a ‘seizure’ is analyzed under the Fourth
Amendment.” Spencer v. Sullivan County, No. 18-CV-365,
2019 WL 4514011, at *6 (S.D.N.Y. Sept. 19, 2019) (citation
and alteration omitted); see also Jackson v. Mastrangelo, 405
F. Supp. 3d 488, 491 (W.D.N.Y. 2019) (same); Santiago v.
City of Yonkers, No. 13-CV-1077, 2015 WL 6914799, at *6
(S.D.N.Y. Oct. 30, 2015) (same); Wright, 2011 WL 1106217,
at *6 (same). As a number of cases illustrate, however,
claims for “sexual harassment” and “sexual abuse” are not
independently cognizable causes of action under the Fourth
Amendment. Instead, courts evaluate an officer's alleged
sexual conduct as part of the inquiry into whether a search
was unreasonable and invasive. For example, in Wright,
the plaintiff alleged that two police officers had “sexually
assaulted him” when they searched the plaintiff in connection
with his arrest. See 2011 WL 1106217, at *6. The sexual
assault claim was based on the fact that one of the two officers
had allegedly “cupped [the plaintiff's] groin area, while
she was frisking him, on two occasions[,]” while the other
officer “failed to intervene.” Id. at *7. The court's analysis
focused on whether the officers’ conduct constituted an
unreasonable search under the Fourth Amendment. See id. at
*6–7. Similarly, in Love v. Town of Granby, No. 03-CV-1960,
2004 WL 1683159 (D. Conn. July 12, 2004) (recommended
ruling), the plaintiff alleged that two police officers had
committed sexual assault and battery in connection with
his arrest and confinement, id. at *4. According to the
plaintiff, one of the officers grabbed [the plaintiff's] scrotum,
used profanity, and referred to him using a homophobic
slur. Id. at *5. Although the defendants argued that sexual
assault and battery were state law claims over which
the court should decline to exercise pendent jurisdiction,
the court concluded that the plaintiff's “claims [were]
properly analyzed under the Fourth Amendment.” Id. at *4–
5. “Beyond the specific proscription of excessive force,”
explained the court, “the Fourth Amendment generally
proscribes unreasonable intrusions on one's bodily integrity,
and other harassing and abusive behavior that rises to the
level of unreasonable seizure.” Id. at *5 (quoting Fontana,

262 F.3d at 878–79 (evaluating a plaintiff's allegations of
sexually harassing behavior by a police officer following an
arrest under the Fourth Amendment's “unreasonable seizure”
standard)).
*30 Plaintiff's constitutional claims for “sexual harassment”
and “sexual abuse” are therefore duplicative of his
unreasonable search claim in Count Six. Indeed, Count Six
is based on the same allegations underpinning Counts Three
and Four. (See SAC ¶ 123.) Because the alleged sexually
harassing behavior is properly analyzed with respect to the
unreasonable search alleged in Count Six, Counts Three and
Four do not give rise to separately cognizable constitutional
claims, and should therefore be dismissed. Cf., e.g., Lopes
v. Westchester County, No. 18-CV-8205, 2020 WL 7029002,
at *10 (S.D.N.Y. Nov. 30, 2020) (dismissing substantive
due process claim as duplicative of equal protection claim);
Matthews v. City of New York, No. 15-CV-2311, 2016 WL
5793414, at *5–6 (S.D.N.Y. Sept. 30, 2016) (dismissing
substantive due process claims that were duplicative of Fourth
Amendment claims). Police Defendants’ Motion is therefore
granted with respect to Counts Three and Four.

5. Deliberate Indifference Based on
Failure to Supervise (Count Seven)
In Count Seven, Plaintiff asserts a deliberate indifference
claim against Sergeant Anderson based on his “failure to
supervise Canario, Pitt, Saintiche[,] and Arestin in conducting
[the] strip search which resulted in injuries that [were] serious
and [which constituted a] deprivation of the Fourteenth
Amendment.” (SAC ¶ 124.) This claim is predicated on
paragraph 45 of the Second Amended Complaint, in which
Plaintiff explains that “[t]here [were] no cameras in th[e]
strip searching room[,] nor was there anyone ... to supervise/
monitor the search.” (Id. ¶ 45; see also id. ¶ 124 (incorporating
¶ 45).) Plaintiff alleges that “Sergeant Anderson held the
responsibility to supervise his subor[d]inates during this
search but failed to do so, and as a result [Plaintiff] was
seriously injured and deprived of [his] Fourth and Fourteenth
Amendment[ ] [rights].” (Id. ¶ 45.)
In his Memorandum of Law, Plaintiff elaborates on
this failure-to-supervise allegation. (See Pl.’s Mem. 15.)
Anderson, he argues, “had a direct responsibility in
monitoring the strip search in order to [e]nsure that the
strip search was conducted in a manner that best [preserved]
the Plaintiff's dignity and minimize[d] the potential abuse

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and humiliation[.]” (Id.) He argues that Anderson's “gross
negligence in failing to supervise his subordinates in
conducting the strip search, thus[ ] giving them the right
to conduct the search in any manner they pleased[,] was
the proximate cause of the constitutional violations that ...
occurred during the strip/visual body cavity search.” (Id.)
Plaintiff also argues that Anderson “had constructive notice of
such unconstitutional practices ... through prior disciplinary
violations of his subordinates [such] that[,] as a supervisory
official, he had a direct responsibility [to] monitor[ ] the
strip search ... to [e]nsure that [no constitutional violations
occurred].” (Id. at 16.) In view of these arguments and
the allegations in the Second Amended Complaint, the
Court understands Plaintiff to raise a deliberate indifference
claim based on Anderson's alleged failure to supervise his
subordinates.

a. Plaintiff's Newly Added Unreasonable
Search Claim Against Anderson
In addition to this deliberate indifference claim, Plaintiff's
Memorandum of Law suggests a separate theory of liability
based on Anderson's order to have the search performed.
(See id. at 15 (“Sgt. Anderson ... had ordered Pitt, Canario,
Arestin[,] and Saintiche to conduct a strip search on the
Plaintiff ....”); id. at 16 (arguing that Anderson “directly
participated in the[ ] [unconstitutional search] by ordering
Pitt, Canario, Arestin, and Saintiche to conduct a ‘strip search’
and [then] failing to supervise [them]”).) Indeed, Plaintiff
explicitly raises this theory of liability in a single sentence,
arguing that “Anderson should also be held liable for the
unreasonable search claim [in Count Six].” (Id. at 15.)
*31 As noted, this Court is obligated to construe liberally
the pleadings of pro se litigants and interpret them to raise
the strongest arguments they suggest. See Triestman, 470
F.3d at 474. Indeed, that is why the Court has considered
Plaintiff's new legal theory under Count Six over Police
Defendants’ procedural objection, see supra Section II.B.3,
and has liberally construed Plaintiff's malicious abuse of
process claim in Count 10 as a claim for denial of the right to
a fair trial, see infra Section II.B.6.
Here, however, the Court would be overextending its
discretion by allowing Plaintiff to pursue his second theory
of liability with respect to Anderson. Whereas Plaintiff's legal
theory in Count Six and the fair trial claim in Count 10
are both grounded in facts alleged in the Second Amended

Complaint, that submission contained no allegations—and
asserted no claims—with respect to Anderson's role in
ordering the search. (See generally SAC.) The Second
Amended Complaint—filed after the close of discovery—
is quite clear in specifying the relevant facts and legal
theory Plaintiff would use to establish Anderson's liability.
Anderson, Plaintiff alleged, was “deliberate[ly] indifferen[t]”
in “fail[ing] to supervise” his subordinates while they
“conduct[ed] [the] strip search.” (Id. ¶ 124.) Plaintiff may
not now, on a motion for summary judgment, constructively
amend his pleadings to incorporate a new claim against
Anderson (unreasonable search) based on facts (Anderson's
ordering of the search) that were never alleged in the Second
Amended Complaint. See Richardson v. City of New York, No.
17-CV-8622, 2020 WL 5801476, at *7 (S.D.N.Y. Sept. 29,
2020) (concluding that a pro se plaintiff “may not belatedly
assert [new] claims at the summary judgment stage”), appeal
docketed, No. 20-3560 (2d Cir. Oct. 16, 2020); Mediavilla v.
City of New York, 259 F. Supp. 3d 82, 106 (S.D.N.Y. 2016)
(“It is well settled that a litigant may not raise new claims
not contained in the complaint in opposition to a motion
for summary judgment.”); Enzo Biochem, Inc. v. Amersham
PLC, 981 F. Supp. 2d 217, 223 (S.D.N.Y. 2013) (“It is well
settled that a party may not amend its pleadings in its briefing
papers.”); Cross v. State Farm Ins. Co., 926 F. Supp. 2d
436, 450 (N.D.N.Y. 2013) (“It is well settled that papers on
a motion for summary judgment is not the proper vehicle
to add a new claim.”); cf. AEP Energy Servs. Gas Holding
Co. v. Bank of Am., N.A., 626 F.3d 699, 726–27 (2d Cir.
2010) (affirming district court's denial of plaintiffs’ attempt
to amend complaint “several months after cross-summary
judgment motions had been filed”). Thus, the Court need not
consider Plaintiff's putative unreasonable search claim against
Anderson.

b. Deliberate Indifference Based on Failure to Supervise
As noted, Plaintiff seeks to hold Anderson liable for the
alleged unconstitutional acts of his subordinates. (See SAC ¶¶
45, 124.) The gravamen of Plaintiff's claim seems to be that
Anderson was not present in the strip search room to supervise
the visual body cavity search, thereby giving Pitt, Canario,
Saintiche, and Arestin “the right to conduct the search in any
manner they pleased.” (Pl.’s Mem. 15.) Although Plaintiff
does not specify which particular acts occurred as a result of
Anderson's absence, the Court understands Plaintiff to refer
to (1) the alleged excessive force and (2) the alleged digital
penetration. (See SAC ¶¶ 53–63, 122–23.)

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“It is well settled that, in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff
must show ... the defendant's personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013); see also Davila
v. Johnson, No. 15-CV-2665, 2015 WL 8968357, at *4
(S.D.N.Y. Dec. 15, 2015) (“It 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.” (citation and quotation marks omitted)). Until recently,
plaintiffs could establish the liability of a supervisory official
for a subordinate's conduct under § 1983 by showing that:

*32 (1) the defendant participated
directly in the alleged constitutional
violation, (2) the defendant, after being
informed of the violation through a
report or appeal, failed to remedy
the wrong, (3) the defendant created
a policy or custom under which
unconstitutional practices occurred, or
allowed the continuance of such a
policy or custom, (4) the defendant
was grossly negligent in supervising
subordinates who committed the
wrongful acts, or (5) the defendant
exhibited deliberate indifference to
the rights of the plaintiffs by failing
to act on information indicating that
unconstitutional acts were occurring.

Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020)
(brackets omitted) (quoting Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995)). But in Tangreti, the Second
Circuit held that “there is no special rule for supervisory
liability[,]” thereby doing away with “the special standards
for supervisory liability set forth in Colon.” Tangreti, 983
F.3d at 617–18. As the court explained, the Supreme Court's
2009 decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009),
had “cast doubt on the continued viability” of these special
standards. Tangreti, 983 F.3d at 617. In Iqbal, the Supreme
Court stated that in § 1983 suits against state officials, such
officials “may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat
superior.” Id. at 616 (italics omitted) (quoting Iqbal, 556 U.S.
at 676). In the years since Iqbal was decided, district courts

in this Circuit tried, “with inconsistent results, to determine
[its effect] on supervisory liability.” Id. at 617 & n.3. Tangreti
put the matter to rest by rejecting a special standard for
supervisory liability and clarifying that “a plaintiff must
plead and prove ‘that each Government-official defendant,
through the official's own individual actions, has violated
the Constitution.’ ” Id. at 618 (quoting Iqbal, 556 U.S. at
676). Accordingly, when a plaintiff brings a § 1983 suit
against a supervisory official, “ ‘[t]he factors necessary
to establish a [constitutional] violation will vary with the
constitutional provision at issue[,]’ because the elements of
different constitutional violations vary.” Id. at 618 (quoting
Iqbal, 556 U.S. at 676). Whatever the alleged constitutional
violation, after Tangreti, “[t]he violation must be established
against the supervisory official directly.” Id. at 618.
The Second Circuit's analysis in Tangreti illustrates how the
Court may resolve the instant claim without reference to the
supervisory liability factors in Colon. In Tangreti, an inmate at
York Correctional Institute had been sexually abused by three
correctional officers “on numerous occasions” over a span of
more than a year from 2013 to 2014. See id. at 612. The inmate
brought a § 1983 suit against eight prison supervisors alleging
that they had shown deliberate indifference to the substantial
risk of sexual abuse in violation of the Eighth Amendment.
Id. The district court granted summary judgment to all
but one of these defendants. Id. With respect to this last
defendant, the district court found that she “was conceivably
personally involved” in the alleged constitutional violations
based on Colon factors four (gross negligence in supervising
the subordinates who committed the violations) and five
(deliberate indifference based on failure to act on information
that unconstitutional acts were occurring). See Tangreti v.
Semple, No. 17-CV-1420, 2019 WL 4958053, at *19–21 (Oct.
8, 2019), reversed and remanded, 983 F.3d 609 (2d Cir. 2020).
Reversing the district court, the Second Circuit explained that
the plaintiff “must ... establish that [the defendant] violated
the Eighth Amendment by [the defendant's] own conduct,
not by reason of [the defendant's] supervision of others
who committed the violation.” Tangreti, 983 F.3d at 619. In
other words, “[s]he must show that [the defendant] herself
acted with ‘deliberate indifference,’ ” which in the Eighth
Amendment context means “that [the defendant] personally
knew of and disregarded an excessive risk to [the plaintiff's]
health or safety.” Id. (citation and some quotation marks
omitted). The plaintiff could not, however, “rely on a separate
test of liability specific to supervisors.” Id.

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*33 Here, in light of Tangreti, Plaintiff must establish
that Anderson committed a constitutional violation through
his own conduct, rather than through his supervision of
Pitt, Canario, Saintiche, and Arestin. That is, Plaintiff
must establish that Anderson himself showed deliberate
indifference. Because Plaintiff was a pretrial detainee at the
time of the alleged violations, his deliberate indifference
claim is analyzed under the Due Process Clause of the
Fourteenth Amendment. See Cuoco v. Moritsugu, 222 F.3d
99, 106 (2d Cir. 2000) (“[Because Plaintiff] was in pretrial detention at the time of the alleged incidents ...
[t]he district court correctly concluded that [his] claims
ar[o]se under the Due Process Clause ....”). 24 Deliberate
indifference claims under the Fourteenth Amendment are
analyzed somewhat differently than the same claims under
the Eighth Amendment, which applies to inmates who have
been convicted and sentenced. See Darnell v. Pineiro, 849
F.3d 17, 35 (2d Cir. 2017) (explaining the different mens
rea requirements for Eighth Amendment and Fourteenth
Amendment deliberate indifference claims). To be sure, the
overarching framework remains the same. Under both the
Eighth and Fourteenth Amendments, to prevail on a deliberate
indifference claim a plaintiff must establish (1) “that he
suffered a sufficiently serious constitutional deprivation,” and
(2) that the defendant “acted with deliberate indifference.”
Feliciano v. Anderson, No. 15-CV-4106, 2017 WL 1189747,
at *8 (S.D.N.Y. Mar. 30, 2017).
24

Because Plaintiff was in police custody at the
time of the alleged constitutional violation, he is
treated as a pre-trial detainee for purposes of the
deliberate-indifference analysis. See Fredericks v.
Doe, No. 20-CV-11043, 2021 WL 308808, at *2,
*4 (S.D.N.Y. Jan. 29, 2021) (treating a plaintiff
who was allegedly assaulted by three detectives at
a police precinct as a pretrial detainee for purposes
of the deliberate-indifference analysis).

The first element “is evaluated the same way under both the
Eighth Amendment and Fourteenth Amendment.” Ackridge
v. Aramark Corr. Food Servs., No. 16-CV-6301, 2018 WL
1626175, at *19 n.19 (S.D.N.Y. Mar. 30, 2018) (citing
Darnell, 849 F.3d at 30). This requirement is “objective”;
the detainee must show that “the alleged deprivation” is
“sufficiently serious.” Spavone v. N.Y. State Dep't of Corr.
Servs., 719 F.3d 127, 138 (2d Cir. 2013) (citation and
quotation marks omitted). In other words, the plaintiff must
show that he was “[detained] under conditions posing a
substantial risk of serious harm.” Blandon v. Capra, No. 17-

CV-65, 2017 WL 5624276, at *7 (S.D.N.Y. Nov. 20, 2017)
(quoting Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d
Cir. 1996)).
The second element “applies differently to claims under
the Eighth Amendment and the Fourteenth Amendment.”
Howard v. Brown, No. 15-CV-9930, 2018 WL 3611986, at *4
(S.D.N.Y. July 26, 2018) (citing Darnell, 849 F.3d at 34–35).
While the Eighth Amendment imposes a subjective standard
—that the defendant-official “knows of and disregards an
excessive risk to inmate health or safety,” Darnell, 849
F.3d at 32 (citation omitted)—the Fourteenth Amendment,
applicable here, imposes an objective standard. That is, the
defendant-official need only “recklessly fail[ ] to act with
reasonable care to mitigate the risk that the condition posed to
the pretrial detainee even though the defendant-official knew,
or should have known, that the condition posed an excessive
risk to health or safety.” Id. at 35. However, “[d]espite
the slightly lower standard” applicable to pretrial detainees,
“which is akin to objective recklessness, any § 1983 claim
or a violation of due process requires proof of a mens rea
greater than mere negligence.” Miller v. County of Nassau,
No. 16-CV-5843, 2018 WL 1597401, at *3 (E.D.N.Y. Mar.
31, 2018) (quotation marks and italics omitted) (ultimately
quoting Darnell, 849 F.3d at 36).
Assuming Plaintiff satisfies the first element of his deliberateindifference claim, he still has produced no evidence that
Anderson recklessly failed to mitigate a risk that he either
knew or should have known about. See Darnell, 849 F.3d at
35. Although Plaintiff asserts that Anderson “had constructive
notice of ... unconstitutional practices ... through prior
disciplinary violations of his subordinates,” (Pl.’s Mem. 16),
he has not pointed the Court to a single such violation. There
is no evidence in the record, for example, regarding prior
complaints or legal actions against Pitt, Canario, Saintiche, or
Arestin. Nor is there evidence in the record regarding prior
unreasonable search or excessive force claims against other
members of the Newburgh Police Department more generally.
*34 Though it preceded Tangreti and involved a motion to
dismiss, this Court's decision in Gantt v. Ferrara, No. 15CV-7661, 2018 WL 4636991 (S.D.N.Y. Sept. 27, 2018), is
nevertheless instructive here. In Gantt, the plaintiff alleged
that Newburgh's police chief had failed to properly train
and supervise one of his subordinate officers who allegedly
had used excessive force against the plaintiff. See id. at
*6, *8. To determine whether the plaintiff had adequately
alleged the police chief's personal involvement in the putative

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violation, this Court looked to the fourth Colon factor—
whether “the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts.” Id. at *6
(quoting Grullon, 720 F.3d at 139). Although after Tangreti
courts must now resolve claims against supervisor-defendants
without reference to Colon’s special standards for supervisory
liability, the legal standard under the fourth Colon factor is
virtually identical to the Fourteenth Amendment deliberateindifference standard applicable here. To establish personal
involvement based on this factor, a plaintiff formerly had to
show that a defendant:

knew or should have known that
there was a high degree of risk
that his subordinates would behave
inappropriately, but either deliberately
or recklessly disregarded that risk by
failing to take action that a reasonable
supervisor would find necessary to
prevent such a risk, and that failure
caused a constitutional injury to [the]
[p]laintiff.

Id. (quoting Frederick v. Sheahan, No. 10-CV-6527, 2014
WL 3748587, at *8 (W.D.N.Y. July 29, 2014)); see also
Kucera v. Tkac, No. 12-CV-264, 2013 WL 1414441, at *6 (D.
Vt. Apr. 8, 2013) (noting that an “alleged failure [to supervise
or train] [would] satisfy the fourth Colon factor if [the
officers] ‘knew or should have known that there was a high
degree of risk that subordinates would behave inappropriately
but either deliberately or recklessly disregarded that risk
by failing to take action that a reasonable officer would
find necessary to prevent such a risk’ ” (alterations and
citation omitted)). Much like Plaintiff has done here, the
plaintiff in Gantt alleged that the defendant “had knowledge
of [his subordinate's] prior use of excessive force” by virtue
of numerous prior “civil complaints and lawsuits alleging
excessive force and police misconduct.” Gantt, 2018 WL
4636991, at *7 (record citation omitted). But because the
plaintiff had “provide[d] no detail of these other complaints,
such as when they were filed and whether the alleged
misconduct was similar,” this Court concluded that his
allegations were “insufficient to make out a claim” that the
defendant had been deliberately indifferent. See id. (citing
Guillory v. Cuomo, No. 14-CV-971, 2014 WL 11173632, at
*4 (N.D.N.Y. Dec. 2, 2014) (dismissing claim for lack of
personal involvement where “[the] [p]laintiff cite[d] to his

four prior lawsuits but d[id] not allege how any defendant
[named] ... had any involvement or any knowledge of any of
the incidents described in any of those lawsuits”)).
Here too, Plaintiff has alleged in conclusory fashion
that Anderson “was aware of ... [his subordinates’] prior
disciplinary violations,” (Pl.’s Mem. 16), but has offered no
evidence in support of that claim. Without record evidence
that Anderson knew about or should have known about an
excessive risk to Plaintiff's safety, see Darnell, 849 F.3d at
35, the Court must deny Plaintiff's Motion in this respect and
grant summary judgment in favor of Police Defendants, see
Rodriguez v. Goins, No. 18-CV-1380, 2020 WL 6150984, at
*4 (N.D.N.Y. Aug. 17, 2020) (granting summary judgment
where there was no evidence that the defendant knew or
should have known about the threat allegedly posed by
the pretrial detainee's fellow inmate), adopted by 2020 WL
6146597 (N.D.N.Y. Oct. 20, 2020); Charles v. Rockland Cnty.
Off. of Sheriff, No. 16-CV-166, 2019 WL 1299804, at *4
(S.D.N.Y. Mar. 21, 2019) (same).
Accordingly, Police Defendants’ Motion is granted with
respect to Count Seven.

6. Abuse of Process and Denial of
Right to Fair Trial Claims (Count 10)
*35 In Count 10, Plaintiff asserts what is styled as a claim
for malicious abuse of process against Police Defendants
Canario and Pitt. (SAC ¶ 127.) In the Second Amended
Complaint, this claim is predicated on the allegations that
Canario and Pitt “falsified incriminating statements to obtain,
secure[,] and execute [a] search warrant [in order] to carry out
body cavity / x-ray examinations,” and that they “provided
statements to [the] prosecution and falsely charg[ed] / fil[ed]
[a] felony and misdemeanor complaint.” (Id.) Plaintiff and
Police Defendants have both moved for summary judgment
on this claim. (See Police Defs.’ Mem. 23–25; Pl.’s Mem. 16–
17.)
As his Memorandum of Law makes clear, however, Plaintiff
is actually asserting a cause of action for denial of the right to a
fair trial. (See Pl.’s Mem. 16–17.) Such a claim is distinct from
a claim for malicious abuse of process. See Frost v. N.Y.C.
Police Dep't, 980 F.3d 231, 244–51 (2d Cir. 2020) (discussing
the cause of action for denial of one's right to a fair trial);
Thagard v. Lauber, 317 F. Supp. 3d 669, 684 (W.D.N.Y. 2018)
(explaining that a claim for the denial of the right to a fair trial

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“is a separate legal theory from a claim for abuse of process
under § 1983”); Hoyos v. City of New York, 999 F. Supp. 2d
375, 391–95 (E.D.N.Y. 2013) (analyzing malicious abuse of
process claim and fair trial claim as distinct causes of action);
Douglas v. City of New York, 595 F. Supp. 2d 333, 343–44,
346–47 (S.D.N.Y. 2009) (same).
Although ordinarily the Court would decline to consider a
claim that was not explicitly pled in the Second Amended
Complaint, the Court is ever mindful of its obligation to
construe “the submissions of a pro se litigant ... liberally”
and interpret them “to raise the strongest arguments that they
suggest,” Triestman, 470 F.3d at 474 (italics omitted). Count
10 is predicated in part on the allegation that Pitt “provided
false statements to the ... D[istrict] A[ttorney],” that “[t]he
substance of these false statements violated [Plaintiff's] rights
to a fair trial,” and that “Pitt was maliciously building a
stronger case for the prosecution when providing such false
statements to the prosecution.” (SAC ¶¶ 108–09; id. ¶ 127
(incorporating these allegations).) As discussed infra, these
allegations clearly sound in a Fourteenth Amendment fair
trial claim, rather than a Fourth Amendment abuse of process
claim. Moreover, while Police Defendants have objected to
what they characterize as Plaintiff's constructive amendment
with respect to Count Six, see discussion supra, they raise
no such objection with respect to Count 10. Indeed, they
have responded to Plaintiff's arguments regarding his fair trial
claim. (See Police Defs.’ Opp'n 8–9.) Accordingly, the Court
will consider this claim on its merits.

a. Plaintiff's Fair Trial Claim
A criminal defendant's “right to a fair trial” is enshrined
in the Due Process Clause of the Fourteenth Amendment.
Frost, 980 F.3d at 244 (quoting Ramchair v. Conway, 601
F.3d 66, 73 (2d Cir. 2010)). “This right is violated ‘when a
police officer creates false information likely to influence a
jury's decision and forwards that information to prosecutors.’
” Frost, 980 F.3d at 244 (brackets omitted) (quoting Ricciuti
v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)).
“[T]he harm occasioned by such an unconscionable action
is redressable in an action for damages under 42 U.S.C. §
1983.” Ricciuti, 124 F.3d at 130. Despite the “nomenclature, a
criminal defendant's right to a fair trial protects more than the
fairness of the trial itself,” and, as relevant here, “a criminal
defendant can bring a fair trial claim even when no trial occurs
at all.” Frost, 980 F.3d at 249; see also Ricciuti, 124 F.3d at
130 (reversing dismissal of fair trial claim despite the fact that

all criminal charges were dismissed before trial); Polanco v.
City of New York, No. 14-CV-7986, 2018 WL 1804702, at
*11 (S.D.N.Y. Mar. 28, 2018) (“Somewhat counterintuitively,
a claim for denial of the right to a fair trial does not require
that the underlying action actually proceeded to a trial on the
merits.”); Soomro v. City of New York, 174 F. Supp. 3d 806,
815 (S.D.N.Y. 2016) (fair trial claim does not require “an
actual trial”).
*36 To prevail on his fair trial claim, Plaintiff “must show
that ‘an (1) investigating official (2) fabricate[d] evidence (3)
that [was] likely to influence a jury's decision, (4) forward[ed]
that information to prosecutors, and (5) [Plaintiff] suffer[ed]
a deprivation of liberty as a result.” Soomro, 174 F. Supp.
3d at 815 (quoting Jovanovic v. City of New York, 486 F.
App'x 149, 152 (2d Cir. 2012) (summary order); Ricciuti,
124 F.3d at 130). Thus, Plaintiff is required to establish not
only that the police fabricated evidence, but also that this
evidence caused his deprivation of liberty. See Moroughan
v. County of Suffolk, — F. Supp. 3d —, 2021 WL 298714,
at *34 (E.D.N.Y. Jan. 20, 2021) (“The Second Circuit has
held that the fabricated evidence must cause the deprivation
of liberty.” (citing Zahrey v. Coffey, 221 F.3d 342, 350–
51 (2d Cir. 2000))). In this respect, the relevant inquiry is
“whether the liberty deprivations that occurred are legally
traceable back even further to the earlier investigatory act of
fabrication ....” Zahrey, 221 F.3d at 352.
As a threshold matter, the Parties dispute whether
the information allegedly forwarded to prosecutors—i.e.,
Plaintiff's putative statement that he was secreting more drugs
inside his body—was fabricated to begin with. 25 If this
were the only factual dispute with respect to Plaintiff's fair
trial claim, the Court could still grant summary judgment for
Police Defendants based on the lack of causal connection
between the alleged fabrication and Plaintiff's deprivation of
liberty. See Zahrey, 221 F.3d at 348 (“[I]f [the plaintiff] had
claimed only that [the defendant] fabricated evidence and did
nothing to precipitate the sequence of events that resulted
in a deprivation of [the plaintiff's] liberty, no constitutional
violation would have been alleged.”). Here, however, there
is also a genuine dispute as to whether Police Defendants’
alleged fabrication could have caused Plaintiff's deprivation.
25

Plaintiff maintains he never made such a statement.
(See SAC ¶ 108; Pl.’s Mem. 16–17.) But as noted in
Section I.A.3 supra, Canario avers that “[a]t some
point prior to [when Canario] [took] [Plaintiff]
to the hospital at approximately 6:40 p.m.[,]

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[Plaintiff] told [Canario] he had more drugs inside
his rectum but they were too far in and [the police]
would not be able to get them.” (Canario Aff.
¶ 25.) Canario “advised both Sergeant Anderson
and Detective Pitt about these comments,” which
became part of the basis for the acquisition of
the search warrant. (See id.) Pitt echoes Canario's
account, explaining that at some point after he had
helped remove the drugs from Plaintiff's mouth, he
“learned that Officer Canario had reported [that]
[Plaintiff] had told him he had additional drugs
secreted in his body that had not been located[,]
and [he] was directed to prepare an application for
a search warrant based upon this information so
that a digital rectal search could be performed at
a local hospital.” (Pitt. Aff. ¶ 14.) Thus, there is a
factual dispute as to whether Plaintiff ever said he
was concealing more drugs.
Police Defendants appear to argue there was no causation
in part because “no false information was turned over
to the prosecutor.” (Police Defs.’ Mem. 24.) But Plaintiff
has provided two documents, evidently filed in connection
with his prosecution, that complicate that assessment. (See
Pl.’s Mem. Ex. J (Dkt. No. 183).) 26 Dated October 13,
2015 and submitted by Orange County District Attorney
David M. Hoovler (“Hoovler”), both documents are labeled
“Notice to Defendant of Intention to Offer Confessions or
Admissions.” (See id.) In the first document, Hoovler informs
Plaintiff that he “intend[ed] to offer into evidence certain
voluntary statements made by [Plaintiff] to Detective Michael
Pitt of the City of Newburgh Police Department on May
8, 2015 at the City of Newburgh Police Department[,]” the
substance of which was “that the police did not get it all and
he has more up his buttocks.” (Id.) In the second document,
Hoovler informs Plaintiff of an additional statement he
intended to offer into evidence. (Id.) In that statement,
Plaintiff purportedly told Canario, Arestin, Saintiche, and/or
Pitt: “[Y]ou guys are gay; you just want to see my ass; is this
what you want[?]; that's not mine; you won't find the rest; it's
either up too far or I ate it[.]” (Id.) Plaintiff also purportedly
suggested “that it was his knife from the ground; [and] that the
object that was recovered was just a lighter.” (Id.) 27 Without
question, these documents at least raise the possibility
that the investigating officers “forward[ed] th[e] [allegedly
fabricated] information to prosecutors.” Soomro, 174 F. Supp.
3d at 815. Thus, Police Defendants’ argument that “no
false information was turned over to the prosecutor,” (Police

Defs.’ Mem. 24), simply ignores the genuine dispute of fact
regarding the alleged fabrication. 28
26

Plaintiff's Exhibit J is located at ECF pages 30–31
of Dkt. No. 183.

27

The second document also contains a disclaimer
which states that “[a]lthough notice pursuant to
[Criminal Procedure Law] § 710.30 has been
gratuitously given, the People reserve their right to
not introduce such statements in their case-in-chief
against [Plaintiff] as not relevant to the charged
criminal transaction.” (Pl.’s Mem. Ex. J.)

28

Although Police Defendants dismiss the
significance of the documents submitted by
Plaintiff, the Court finds their arguments
unpersuasive. Police Defendants note, for example,
that the forms on which the District Attorney
provided notice to Plaintiff “are those of the District
Attorney, not the [Police] [D]efendants.” (Police
Defs.’ Opp'n 9.) The relevance of this fact
eludes the Court, for part of the inquiry is
whether police forwarded fabricated evidence to
the prosecution. See, e.g., Moroughan, 2021 WL
298714, at *34; Soomro, 174 F. Supp. 3d at 815.
That Plaintiff's alleged statements to the police
subsequently showed up on the District Attorney's
“forms” suggests that the police provided these
statements to the prosecution. Police Defendants
also point to various discrepancies between the
two documents filed by the District Attorney and
the evidence in the record, noting, for example,
that while the District Attorney's first document
indicates that Plaintiff made the relevant statement
to Pitt, (see Pl.’s Mem. Ex. J), Pitt indicates
that he heard the statement from someone else,
(see Pitt. Aff. ¶ 14). (See Police Defs.’ Opp'n
9.) But such discrepancies do not alter the
Court's analysis: Whether the District Attorney
accurately characterized the circumstantial details
surrounding Plaintiff's alleged statements is not
particularly relevant; what matters is that he had
learned of these statements in the first place.

*37 Police Defendants also appear to argue there was
no causation because “no charges alleging [Plaintiff] had
additional drugs were [ever] filed,” and Plaintiff “was solely
prosecuted on the evidence tampering charge to which he pled
guilty[,] and does not even know the disposition of the sole

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drug possession charge which only related to what was found
at the police station.” (Police Defs.’ Mem. 24 (record citations
omitted).) The problem with this argument is that it frames
the potential harm from the allegedly fabricated evidence
too narrowly. In other words, Plaintiff may still establish the
causation element of his fair trial claim even if the prosecutor
did not use the fabricated evidence. The recent decisions in
Frost and Moroughan are instructive on this point.
In Frost, the plaintiff alleged that detectives had coerced a
witness into identifying him as the shooter in connection
with a murder investigation, and then provided that evidence
to prosecutors, who used it to seek the plaintiff's detention
and prosecution. 980 F.3d at 244–45. Although the allegedly
coerced identification was never used at trial, see id. at 249,
the court held that the plaintiff's fair trial claim survived
summary judgment because there were triable questions as
to whether (1) the witness's identification was coerced in
the first instance, and (2) whether such evidence “would
likely have influenced the jury” had such evidence been
presented at trial, see id. at 250. As the court observed,
a “prosecutor's decision to pursue charges rather than to
dismiss a complaint without further action may depend on
the prosecutor's assessment of the strength of the case, which
in turn may be critically influenced by fabricated evidence.”
Id. at 248 (brackets and ellipsis omitted) (quoting Garnett v.
Undercover Officer C0039, 838 F.3d 265, 277–78 (2d Cir.
2016)). Taken together, the two triable questions identified
by the court “create[d] a genuine dispute as to whether [the
witness's] identification “critically influenced” the decision to
prosecute [the plaintiff], thereby resulting in a deprivation of
his liberty.” Id. at 250.
In Moroughan, the plaintiff alleged that police officers
fabricated his confession and provided this fabricated
evidence to the prosecution. See 2021 WL 298714, at *3,
*34. Ultimately, however, the charges against the plaintiff
were dismissed before trial. See id. at *13. The defendants
argued—much as Police Defendants have argued here—that
because “the plaintiff's statement was never used, or even
considered during his brief pending criminal prosecution,”
his fair trial claim had to be dismissed, id. at *36 (record
citation omitted). The court disagreed, observing that “the
Second Circuit recently rejected [that] precise argument [in
Frost].” Id. (noting that “the fair trial claim survived summary
judgment in Frost even though the allegedly fabricated
evidence was presented to the prosecutor, but never used at
any trial”). In Moroughan, moreover, there was evidence in
the record that the district attorney, while investigating the

charges, had considered the allegedly fabricated confession,
which he found “corroborated [the defendants’] accounts as
evidence against [the] plaintiff.” Id. In light of this evidence,
as well as the Second Circuit's holding in Frost, the court
concluded there were genuinely disputed issues of material
fact precluding summary judgment. Id. at *37. Here, as
in Frost and Moroughan, disputed issues of material fact
preclude summary judgment on Plaintiff's fair trial claim.
The documents filed by District Attorney Hoovler raise
the distinct possibility that Plaintiff's allegedly fabricated
statements “critically influenced” Hoovler's “assessment of
the strength of the case.” See Frost, 980 F.3d at 248. Although
Police Defendants rely on the fact that Plaintiff “was solely
prosecuted on the evidence tampering charge to which he
pled guilty,” (Police Defs.’ Mem. 24), they cannot get around
the fact that Hoovler evidently thought Plaintiff's alleged
statements had some potential relevance to his prosecution.
Indeed, even if the disclaimer on Hoovler's second document
were interpreted to suggest that he had no intention of
introducing Plaintiff's alleged statement at trial, (see Police
Defs.’ Opp'n 9), that is not the relevant inquiry, as the
discussion above illustrates. The Court's concern is whether
the statement “would be likely to influence a jury's decision,
were that evidence presented to the jury.” Frost, 980 F.3d
at 250. Because there is a genuine dispute of material fact
regarding the causation element of Plaintiff's fair trial claim,
the Court may not grant summary judgment. Thus, Plaintiff's
Motion and Police Defendants’ Motion are both denied with
respect to this claim.
*38 Finally, the Court notes that to the extent Plaintiff
has framed his fair trial claim around Police Defendants’
acquisition of a search warrant, (see Pl.’s Mem. 16–17), he
seems to misconceive the nature of his own claim. In a fair
trial claim such as the one he has raised, the relevant injury
is a plaintiff's deprivation of liberty. See, e.g., Frost, 980 F.3d
at 250 (explaining that the fair trial right “protects against
deprivation of liberty”); Zahrey, 221 F.3d at 349 (explaining
that “the right at issue” in a fair trial claim “is appropriately
identified as the right not to be deprived of liberty as a result
of the fabrication of evidence by a government officer acting
in an investigating capacity”); Soomro, 174 F. Supp. 3d at 815
(stating that the plaintiff must suffer a deprivation of liberty to
prevail on a fair trial claim); Moroughan, 2021 WL 298714,
at *34 (noting that “the fabricated evidence must cause the
deprivation of liberty”). Whereas “the claim of denial of the
right to a fair trial finds its roots in the Sixth Amendment, as
well as the due process clauses of the Fifth and the Fourteenth
Amendments,” Aguirre v. City of New York, No. 15-CV-6043,

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2017 WL 4236552, at *10 n.13 (E.D.N.Y. Sept. 22, 2017);
see also Gogol v. City of New York, No. 15-CV-5703, 2017
WL 3449352, at *11 (S.D.N.Y. Aug. 10, 2017) (same); but
cf. Garnett, 838 F.3d at 276 n.6 (stating that “[w]hether
this right is rooted in the Sixth Amendment or Fifth and
Fourteenth Amendments, or both, is an issue we need not
decide”), the right to be free from an unreasonable search
by law enforcement arises under the Fourth Amendment, see
Maldonado v. Town of Greenburgh, 460 F. Supp. 3d 382, 392
(S.D.N.Y. 2020). Although a deprivation of liberty may arise
“from an allegedly fabricated statement in a search warrant,”
see Polanco, 2018 WL 1804702, at *12 & n.13, the relevant
injury in such a scenario would still be the deprivation of
liberty, rather than the resultant search itself. Thus, insofar as
Plaintiff alleges that the search warrant was procured through
fabricated evidence, (see Pl.’s Mem. 16–17), he appears to be
challenging the legality of the search that was subsequently
undertaken pursuant to that warrant. Such a challenge is
appropriately framed as an unreasonable search claim, rather
than a fair trial claim.

b. Malicious Abuse of Process Claim
Although Count 10, as discussed, is appropriately treated as
a fair trial claim, the Court will briefly address Plaintiff's
putative abuse of process claim to avoid any doubt.
“The elements of a § 1983 cause of action for malicious abuse
of process are provided by state law.” Sorrell v. County of
Nassau, 162 F. Supp. 3d 156, 171 (E.D.N.Y. 2016) (citing
Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994)). 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.

Deanda, 137 F. Supp. 3d at 576 (quoting Savino v. City of
New York, 331 F.3d 63, 72 (2d Cir. 2003)). The third element
—a collateral objective—is “[t]he crux of a malicious abuse
of process claim.” Marshall v. Port Auth. of N.Y. & N.J., No.

19-CV-2168, 2020 WL 5633155, at *8 (S.D.N.Y. Sept. 21,
2020) (quoting Douglas v. City of New York, 595 F. Supp. 2d
333, 344 (S.D.N.Y. 2009)). Thus, to prevail on such a claim,
“a plaintiff must establish that the defendants had an improper
purpose in instigating the action,” and must establish that
the defendants “aimed to achieve a collateral purpose beyond
or in addition to his criminal prosecution.” Marshall, 2020
WL 5633155, at *8 (brackets omitted) (quoting Savino, 331
F.3d at 77). “A collateral objective is usually characterized
by personal animus, and may include infliction of economic
harm, extortion, blackmail[,] or retribution.” Dash v. Montas,
—F. Supp. 3d—, 2020 WL 1550708, at *10 (E.D.N.Y. Mar.
31, 2020) (citations, brackets, and quotation marks omitted).
Here, Plaintiff has not come forward with any evidence to
suggest that Pitt or Canario sought to investigate or facilitate
the prosecution of Plaintiff with any collateral objective.
Without evidence that these Defendants maintained some
personal animus toward Plaintiff, or “aimed to achieve a
collateral purpose beyond or in addition to his prosecution,”
Marshall, 2020 WL 5633155, at *8, his claim for malicious
abuse of process fails. Thus, insofar as Count 10 purports
to raise a malicious abuse of process claim, that claim
is denied. See id. at *9 (granting summary judgment for
defendants where the plaintiff “ha[d] not offered any evidence
that the officers had an ‘improper motive or pursued a
collateral purpose outside the legitimate ends of process’
” (citation omitted)); Dash, 2020 WL 1550708, at *11
(granting summary judgment for defendants where plaintiff
provided no evidence that the defendant “harbored any
personal animus toward [him] or acted with some other
collateral objective ... not related to law enforcement”).
*39 For the reason above, Police Defendants’ Motion and
Plaintiff's Motion are both denied with respect to Count 10.

7. Unreasonable Search and Right to Privacy Claims
Based on Events at St. Luke's (Counts 15, 16, and 17)
To resolve Defendants’ Motions with respect to the claims
arising from the events at St. Luke's, the Court must address
two threshold issues. First, the Court must address Plaintiff's
contention that the manual body cavity search and x-ray
examination at St. Luke's occurred during the first—and,
according to Plaintiff, the only—visit to the hospital, before
the police had secured a search warrant. (See SAC ¶¶ 75–
102; Pl.’s Opp'n 18–20; Pl.’s Dep. 102:8–13.) Second, the
Court must consider the validity of the warrant itself, and

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whether Police Defendants had a good-faith basis to rely on
the warrant.

a. Timing and Sequence of the Manual Body
Cavity Search and X-Ray Examination at St. Luke's
As noted in Section I.A.4.b supra, Plaintiff maintains that
a manual body cavity search and x-ray examination were
performed during his first visit to St. Luke's, and that, contrary
to Defendants’ version of events, there was no second visit
to the hospital later in the evening. According to Plaintiff's
account, therefore, the manual body cavity search and x-ray
were performed without a search warrant, (see Pl.’s Opp'n 19;
Pl.’s Dep. 103:10–104:8), which the police did not obtain until
later in the evening, (see Defs.’ 56.1 ¶¶ 81–83).
Plaintiff's medical records from St. Luke's, however,
corroborate Defendants’ version of events. According to the
digital timestamps from these records, Plaintiff was first
admitted to St. Luke's at “1847” (6:47 P.M.) on May 8, 2015.
(See ER Records 4; Posner Aff. Ex. O (“Berberich Aff.”)
¶ 10 (Dkt. No. 160-14).) These records indicate that he left
the hospital “in police custody” either at “1939” (7:39 P.M.),
(see ER Records 4), or at “1927” (7:27 P.M.), (see id. at
16). 29 The Court has thoroughly reviewed the first 20 pages
of Police Defendants’ Exhibit D, which contains the medical
records pertaining to Plaintiff's initial visit to St. Luke's.
(See ER Records 2–21.) These records indicate that between
“1905” (7:05 P.M.) and “1935” (7:35 P.M.), medical staff
flushed Plaintiff's eyes (to remove residual pepper spray),
performed an “EKG” (an electrocardiogram), and performed
“wound care [on] [a] small abrasion to [the] patient[’]s back,”
which included “cleans[ing] [the abrasion] with [a] normal
saline antibiotic” and covering the wound with a bandage,
after which Plaintiff was “discharged back into [the] custody
of [the] police department.” (See id. at 8.) But although these
records contain information regarding Plaintiff's vital signs,
(see id. at 5, 10, 13–14), medical history, (see id. at 12),
and discharge instructions, (see id. at 14, 16–19), there is
no mention of either a manual body cavity search or x-ray
examination having been performed.
29

Although there is a 12-minute difference between
the digital timestamps on page four and page 16
of these records, the Court finds this difference
immaterial. The Court also notes that the time
stamp on page 16—“1927”—appears on a sheet of

paper that was printed and then signed by Plaintiff
and the caregiver. (See ER Records 16.) It makes
intuitive sense that there is a short gap of time
between when the sheet was printed (7:27 P.M.)
and when, according to the hospital's time-keeping
system, Plaintiff was formally discharged (7:39
P.M.). (See ER Records 4). Moreover, although
Laura Berberich, St. Luke's Director of Health
Information Management, states that Plaintiff was
discharged at “1938” (7:38 P.M.), (see Berberich
Aff. ¶ 10), this disparity is also immaterial.
*40 Exhibit D also contains a second set of records
pertaining to a subsequent emergency room visit later in the
evening. According to the digital timestamps in these records,
Plaintiff was admitted a second time at “2300” (11:00 P.M.)
on May 8, 2015, and discharged at “0137” (1:37 A.M.) on
May 9, 2015. (See id. at 23; see also id. at 36–37 (indicating
discharge time of “0135”); Berberich Aff. ¶ 10 (stating that
discharge time was “01:39”).) The “Emergency Room Note”
for this second visit indicates that Plaintiff was “seen earlier
today” at the hospital and was now there “for [a] search
warrant rectal exam.” (Id. at 29; see also id. at 24 (stating
that “police [were] present ... with search warrant to search
the rectal area”); id. at 31 (listing “secondary impression” as
“search warrant rectal exam”).) The same note states: “Per
Sergeant, [x-ray] if needed may be completed as well.” (Id.
at 29.) According to the records, Plaintiff was “seen” and an
“eval[uation]” was performed by Nurse Practitioner DurbinFrench at “00:30” (12:30 A.M.). (See id. at 25; cf. DurbinFrench Aff. ¶¶ 13, 21 (indicating that she saw Plaintiff at
12:25 A.M. and performed a rectal examination).) An x-ray
examination was performed at approximately “00:37” (12:37
A.M.). (See ER Records 25; Durbin-French Aff. ¶¶ 24–27
(discussing the x-ray examination performed on Plaintiff).)
And at “01:30” (1:30 A.M.), the x-rays were “reviewed by
[Durbin-French],” Plaintiff was “cleared for [discharge],”
and discharge instructions were provided to Plaintiff and the
police. (See ER Records 25–26; Durbin-French Aff. ¶¶ 28–
31.) The records reflect that no “foreign body” was found
in Plaintiff's rectum. (ER Records 28, 31, 34, 37; see also
Durbin-French Aff. ¶ 28.)
Further undermining Plaintiff's version of events is the
testimony and timesheet of Nurse Lemos. As discussed in Part
I.A.4.b supra, Plaintiff maintains that the manual body cavity
search and x-ray were performed by Nurse Lemos during his
first and only visit to St. Luke's between approximately 6:50
P.M. and 7:40 P.M. But Nurse Lemos's time records for that
evening show that she did not clock in until 10:45 P.M., a fact

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to which she has testified. (See Lemos Aff. ¶ 5 & attached
timesheet.) Thus, there is no way she could have examined
Plaintiff as he claims.
In the Court's view, these records “directly and irrefutably
contradict” Plaintiff's version of events. See Henry, 406 F.
Supp. 3d at 214 (citation and italics omitted). As discussed
in Section II.B.2.b supra, the Court may not grant summary
judgment merely because a Plaintiff's alleged injuries do
“not appear in the medical records,” provided his allegations
are not “directly and irrefutably contradicted” by those
records. See Morehouse, 2020 WL 1049943, at *14 (quoting
Henry, 406 F. Supp. 3d at 214). But although the Court
declined to dismiss Count Five notwithstanding the tension
between Plaintiff's allegations and the evidence in his medical
records, the conflict here is of a different character and
magnitude. For example, with respect to Count Five, the
Court relied on Plaintiff's allegations that he complained to
hospital staff about his supposed injuries. In that context,
the Court observed that although Plaintiff's account relies
exclusively on his own testimony and is contradicted by
his medical records, his account still provides a “plausible
alternative version of events” that could preclude summary
judgment. See Bridgewater, 2011 WL 6762931, at *5. That
is not the case here. The digital timestamps in the medical
records conclusively establish that there were two visits—one
between approximately 6:45 P.M. and 7:40 P.M., and another
between approximately 11:00 P.M. and 1:40 P.M. Likewise,
the Director of Health Information Management at St. Luke's,
Laura Berberich, has reviewed the “audit trail” of Plaintiff's
electronic medical records and affirmed that “there were two
visits to St. Luke's Emergency Department on 5/8/2015”—
the first of which lasted from “18:47” to “19[:]38,” and the
second of which lasted from “23:00” to “01:39.” (Berberich
Aff. ¶¶ 9–10.) 30 As noted, the records for the first hospital
visit contain no mention of a manual body cavity search
or an x-ray. Given the other detail in these records, it is
implausible that hospital staff would perform these two
procedures without including them in the records. Although
Plaintiff may create a triable issue of fact by alleging that
he complained about a bruise or contusion which do not
appear in his records, he may not do the same by alleging in
conclusory fashion—without a shred of supporting evidence
—that hospital staff performed two significant procedures
and then simply omitted them from the records. Nor has he
plausibly challenged the timesheet produced by Nurse Lemos.
30

Plaintiff's argument that Ms. Berberich is an expert
witness, (see Pl.’s Opp'n 15), is misguided. “To

testify as an expert witness, an individual must
be ‘qualified as an expert by knowledge, skill,
experience, training, or education.’ ” SEC v. Lek
Sec. Corp., No. 17-CV-1789, 2019 WL 1512713, at
*3 (S.D.N.Y. Apr. 8, 2019) (quoting Fed. R. Evid.
702). An expert witness is one who “assists the
jury in comprehending and deciding issues beyond
the understanding of a layperson.” Lek, 2019 WL
1512713, at *3 (citation and quotation marks
omitted). That does not describe Ms. Berberich,
who is serving as an ordinary fact witness.
*41 Plaintiff's response is to argue that the police and
medical staff must have conspired to falsify the medical
records, fabricating evidence of a second hospital visit that
took place after police had obtained a search warrant. (See,
e.g., Pl.’s Opp'n 17 (referring to the “falsified hospital
medical records”); id. at 20 (stating that evidence of a second
hospitalization was “forged and falsified”); SAC ¶¶ 102,
112, 137.) But as courts have routinely held, a plaintiff
may not survive summary judgment through a conclusory
assertion that relevant records were forged or falsified.
See, e.g., Goonewardena v. Spinelli, No. 15-CV-5239, 2020
WL 1557745, at *11 (E.D.N.Y. Mar. 5, 2020) (granting
summary judgment for the defendants where the plaintiff
“ha[d] not adduced any evidence [to support his theory] that
the certified court documents and transcripts [relied upon by
the defendants] may have been fabricated, [and] ha[d] [not] ...
uncovered any reason to believe that the documents [were]
inaccurate”), report and recommendation adopted in relevant
part, 2020 WL 1550724 (E.D.N.Y. Mar. 31, 2020); Engles
v. Dougherty, No. 14-CV-1185, 2017 WL 6466309, at *11
(N.D.N.Y. Aug. 22, 2017) (holding, for purposes of summary
judgment, that the “[p]laintiff's conclusory allegation that the
medical professionals and other officers ‘covered up,’ and
fabricated [the] plaintiff's medical records and logbooks to
suppress evidence of his alleged injuries is highly suspect
and would, in this court's view, ... be insufficient to sway
any rational fact finder” (record citation omitted)), report and
recommendation adopted sub nom. Engles v. Souza, 2017 WL
6463074 (N.D.N.Y. Dec. 18, 2017); Hilton v. Maltese, No.
09-CV-1373, 2012 WL 6965105, at *6 & n.10 (N.D.N.Y.
Dec. 14, 2012) (“Plaintiff's conclusory assertion that the
transcript and other records of his disciplinary hearing were
completely fabricated is not sufficient to establish a material
issue of fact ....”), report and recommendation adopted, 2013
WL 375489 (N.D.N.Y. Jan. 30, 2013); Lewis v. Johnson,
No. 08-CV-482, 2010 WL 3785771, at *20 (N.D.N.Y.
Aug. 5, 2010) (concluding that the “[p]laintiff's conclusory
allegation that multiple medical professionals in two different

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prisons fabricated [the] plaintiff's medical records to suppress
evidence of his alleged injuries ... would ... be insufficient to
sway any rational fact finder”), report and recommendation
adopted, 2010 WL 3762016 (N.D.N.Y. Sept. 20, 2010); Farid
v. Ellen, No. 01-CV-8292, 2006 WL 59517, at *11 (S.D.N.Y.
Jan. 11, 2006) (dismissing the plaintiff's Eighth Amendment
deliberate-indifference claim on summary judgment in part
because “[t]he most that plaintiff ha[d] provided [to establish
the defendant's conscious disregard] [was] his speculation
that [the] defendant ... had somehow doctored plaintiff's
medical records to fabricate details of his medical history”),
aff'd, 593 F.3d 233 (2d Cir. 2010). Accordingly, there are no
genuine disputes of material fact regarding the basic timing
and sequence of the manual body cavity search and x-ray
examination at St. Luke's. The evidence establishes that both
procedures took place during Plaintiff's second visit to the
hospital, after the police had obtained a search warrant.

b. Whether Police Defendants Are Entitled
to Qualified Immunity Based On GoodFaith Reliance On Search Warrant
Because the manual body cavity search and x-ray
examination at St. Luke's were conducted pursuant to a search
warrant, they are presumed reasonable. See Fabrikant v.
French, 691 F.3d 193, 214 (2d Cir. 2012) (“Ordinarily, an
arrest or search pursuant to a warrant issued by a neutral
magistrate is presumed reasonable because such warrants
may issue only upon a showing of probable cause.”); see
also Golino v. City of New Haven, 950 F.2d 864, 870 (2d
Cir. 1991) (“Normally, the issuance of a warrant by a neutral
magistrate, which depends on a finding of probable cause,
creates a presumption that it was objectively reasonable for
the officers to believe that there was probable cause ....”);
Vaher v. Town of Orangetown, 916 F. Supp. 2d 404, 426
(S.D.N.Y. 2013) (“A search is presumptively reasonable
when executed pursuant to a warrant.”). Although Plaintiff's
theory is that the manual body cavity search and x-ray
examination were performed without a search warrant, he has
also challenged the validity of the warrant itself, arguing that
Police Defendants “wrongfully procur[ed]” the warrant by
relying on the fruits of a “prior illegal search” and fabricating
Plaintiff's statement that he had more drugs inside of him.
(Pl.’s Mem. 16–17; see also SAC ¶ 108.) Because the Court
has concluded that Defendants did rely on the search warrant
during the second visit to St. Luke's, Plaintiff's challenge to
the warrant merits consideration.

“To be valid under the Fourth Amendment, a search warrant
must (1) be based on probable cause, (2) be supported
by oath or affirmation, (3) describe with particularity the
place to be searched, and (4) describe with particularity the
things to be seized.” Green, 96 F. Supp. 3d at 286 (citing
Groh v. Ramirez, 540 U.S. 551, 557 (2004)). It is wellestablished, however, that a “police officer who relies in
good faith on a warrant issued by a neutral and detached
magistrate upon a finding of probable cause is presumptively
shielded by qualified immunity.” Id. at 286 (quoting Simms
v. Village of Albion, 115 F.3d 1098, 1106 (2d Cir. 1997)).
Thus, courts confronted with a suppression motion “have
recognized that evidence obtained by government agents ‘in
objectively reasonable reliance’ on a warrant subsequently
invalidated by a reviewing court is not generally subject
to exclusion.” United States v. Scully, 108 F. Supp. 3d 59,
103 (E.D.N.Y. 2015) (quoting United States v. Falso, 544
F.3d 110, 125 (2d Cir. 2008)). “When a government agent
genuinely believes that he has obtained a valid warrant from
a magistrate and executes that warrant in good faith, there is
no conscious violation of the Fourth Amendment, ‘and thus
nothing to deter.’ ” Scully, 108 F. Supp. 3d at 103 (quoting
United States v. Leon, 468 U.S. 897, 920–21 (1984)); see also
United States v. Raymonda, 780 F.3d 105, 118 (2d Cir. 2015)
(same). These same principles “appl[y] in civil cases, like this
one, brought pursuant to § 1983, in which a plaintiff seeks
to challenge a warranted search as unlawful.” Calderon v.
City of New York, No. 14-CV-1082, 2015 WL 2079405, at *5
(S.D.N.Y. May 4, 2015) (gathering cases); see also Conroy v.
Caron, 275 F. Supp. 3d 328, 346–47 (D. Conn. 2017) (stating
same principle). Accordingly, if the Court finds that Police
Defendants reasonably relied on the search warrant in good
faith, it need not determine whether the search was, in fact,
supported by probable cause. See Scully, 108 F. Supp. 3d at
103 (gathering cases and observing that “the Second Circuit
and district courts in this Circuit have, at times, declined
to evaluate a probable cause showing altogether and instead
decided Fourth Amendment claims based on the good faith
exception”).
*42 To invoke the good faith exception, however, an
officer's reliance on a duly issued warrant “must be
objectively reasonable.” Id. at 103 (quoting Leon, 468 U.S.
at 922); see also Raymonda, 780 F.3d at 118 (same). Courts
have recognized four circumstances in which the good faith
exception “cannot shield even an officer who relie[d] on a
duly issued warrant”:

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(1) where the issuing magistrate has
been knowingly misled; (2) where the
issuing magistrate wholly abandoned
his or her judicial role; (3) where the
application is so lacking in indicia of
probable cause as to render reliance
upon it unreasonable; and (4) where
the warrant is so facially deficient that
reliance upon it is unreasonable.

Raymonda, 780 F.3d at 118 (quoting United States v. Clark,
638 F.3d 89, 100 (2d Cir. 2011)).
The second and fourth factors do not apply here. With respect
to the second factor, although the judge issuing a search
warrant “must ‘perform his neutral and detached function’
as a judicial officer ‘and not serve merely as a rubber
stamp for the police,” courts will not “hastily assume a
magistrate's surrender of his judicial independence to the
police or prosecution.” Clark, 638 F.3d at 100, 101 (quoting
Leon, 468 U.S. at 914). Here, there is no evidence that Judge
Williams “allowed himself to become a member, if not the
leader, of the search party,” as was the case, for example, in
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979). There,
the Supreme Court invalidated a warrant where the issuing
judge had accompanied police and prosecutors to an adult
bookstore and, over the course of six hours, determined for
himself which obscene materials could be seized. See id. at
322. Moreover, even if the reviewing court determines that
the issuing judge “committed legal error in his assessment of
probable cause,” it may not infer “abandonment of judicial
neutrality and detachment” on that basis alone. Clark, 638
F.3d at 101. Here, there is no evidence to suggest that Judge
Williams abandoned his judicial role, and thus, “this factor
did not preclude the officers’ good faith reliance on the
challenged warrant.” Id.
With respect to the fourth factor, “a warrant is facially
defective when it omits or misstates information specifically
required to be contained therein,” such as “the place to be
searched, and the persons or things to be seized.” Id. at 102
(quoting U.S. Const. amend. IV). This factor is also inapposite
here. The search warrant issued by Judge Williams authorized
law enforcement personnel and medical staff to search for and
seize “cocaine[,] marihuana[,] or other controlled substances
and/or packaging material consistent with the sale of such

items.” (Search Warrant & Supporting Aff. 2.) The warrant
authorized them “to search and inspect, and photograph and/
or record in any way the person of [Plaintiff,] including
an inspection of the rectal area[,]” for these products. (Id.)
Because the warrant identified with particularity both the
items to be seized and the place to be searched, it was not
facially defective so as to preclude good faith reliance. Cf.
Groh, 540 U.S. at 564 (concluding that a search warrant's
failure to identify the items to be seized prevented reasonable
reliance); Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5
(1984) (upholding a lower court's conclusion that a “warrant
was constitutionally defective [where] the description [of
items to be seized] in the warrant was completely inaccurate
and the warrant did not incorporate the description contained
in the affidavit”).
*43 Here, rather, Plaintiff's challenge to the warrant
implicates the first and third factors that may vitiate good
faith reliance. He argues that Pitt “provided false statements to
[Judge Williams] ... in order to secure a search warrant,” (SAC
¶ 108), thereby suggesting that “the issuing magistrate [was]
knowingly misled[,]” Raymonda, 780 F.3d at 118. He also
argues that the search warrant was obtained by using the
fruits of a prior unconstitutional search, (see Pl.’s Mem. 16),
thereby suggesting that the warrant “application [was] so
lacking in indicia of probable cause as to render reliance upon
it unreasonable[,]” Raymonda, 780 F.3d at 118. The Court will
consider each challenge in turn.

i. Whether Judge Williams Was Misled
“Where an officer knows, or has reason to know, that he
has materially misled a magistrate on the basis for a finding
of probable cause, ... the shield of qualified immunity is
lost.” Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994)
(ellipsis in original) (quoting Golino, 950 F.2d at 871)). “A [§]
1983 plaintiff challenging a warrant on this basis must make
the same showing that is required at a suppression hearing
under Franks v. Delaware, 438 U.S. 154, 155–56 [(1978).]”
Id. In such cases, “the plaintiff must show that the affiant
knowingly and deliberately, or with a reckless disregard of
the truth, made false statements or material omissions in
his application for a warrant, and that such statements or
omissions were necessary to the finding of probable cause.”
Id.; see also United States v. Lahey, 967 F. Supp. 2d 698,
709 (S.D.N.Y. 2013) (“To require suppression, a movant must
demonstrate, by a preponderance of the evidence, both the
affiant's intent to mislead the issuing judge and the materiality

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of the affiant's falsehoods or omissions.” (citing United States
v. Rajaratnam, 719 F.3d 139, 145–46 (2d Cir. 2013))). It
is not enough for a plaintiff to set forth “[u]nsupported
conclusory allegations of falsehood or material omission”;
rather, he “must make specific allegations accompanied
by an offer of proof.” Velardi, 40 F.3d at 573; see also
Calderon, 2015 WL 2079405, at *5 (same). With respect
to the materiality requirement, “a false statement is material
when ‘the alleged falsehoods or omissions were necessary
to the [issuing] judge's probable cause finding.’ ” Calderon,
2015 WL 2079405, at *6 (quoting United States v. Martin,
426 F.3d 68, 73 (2d Cir. 2005)); see also Lahey, 967 F. Supp.
2d at 711. “To determine if misrepresentations or omissions
are material, a court corrects the errors and then resolves
de novo whether the hypothetical corrected affidavit still
establishes probable cause.” Lahey, 967 F. Supp. 2d at 711;
Conroy, 275 F. Supp. 3d at 347 (same); see also Calderon,
2015 WL 2079405 (same). Thus, “to survive the defendants’
motion for summary judgment on this issue,” plaintiffs must
meet three criteria:

[T]hey must have made an
offer of proof supporting specific
allegations of deliberate or reckless
misrepresentation, as required by
Franks; the alleged misrepresentations
must be legally relevant to the
probable cause determination; and
there must be a genuine issue of fact
about whether the magistrate would
have issued the warrant on the basis of
‘corrected affidavits.’

Velardi, 40 F.3d at 574. The Franks standard is therefore
considered “a high one.” Rivera v. United States, 928 F.2d
592, 604 (2d Cir. 1991); Calderon, 2015 WL 2079405, at *5
(same).
Here, Plaintiff alleges that Pitt “intentionally, knowingly[,]
and with reckless disregard for the truth” fabricated Plaintiff's
statement that he had more drugs inside his anal cavity, and
that he did so to support the application for a search warrant.
(Pl.’s Mem. 16; see also SAC ¶ 108; Search Warrant &
Supporting Aff. 4 (“[Plaintiff] then made a statement that
he does have more narcotics in his rectum.”).) The Court
assumes there is a genuine issue of fact about whether Judge
Williams would have issued the warrant on the basis of an

affidavit omitting this statement, just as it assumes that Pitt's
alleged fabrication is legally relevant to the probable cause
determination. 31 But even with these assumptions in place,
Plaintiff has not provided a sufficient “offer of proof” in
support of his allegations as required by Franks. Velardi and
its progeny have made clear that even in a § 1983 action,
and even in the context of a summary judgment motion,
a plaintiff challenging the validity of a warrant must still
satisfy the rigorous standards in Franks. See Velardi, 40 F.3d
at 573; Calderon, 2015 WL 2079405, at *5; Conroy, 275
F. Supp. 3d at 347; Spafford v. Romanowsky, 348 F. Supp.
2d 40, 46 (S.D.N.Y. 2004). Under Franks, “a challenge to
the veracity of the affidavit [on which a warrant was based]
merits a [suppression] hearing only if the challenger makes a
‘substantial preliminary showing’ that the affiant knowingly
and intentionally made a false statement that was ‘necessary
to the finding of probable cause.’ ” Simms, 115 F.3d at 1107
(brackets and ellipsis omitted) (quoting Rivera, 928 F.2d
at 604). As noted, this “substantial preliminary showing”
requires that the plaintiff's allegations be “supported by an
offer of proof.” Calderon, 2015 WL 2079405, at *5 (citing
Velardi, 40 F.3d at 573). Courts have made clear that a
plaintiff's own, uncorroborated statements do not constitute
a sufficient offer of proof under Franks. See United States v.
Nix, No. 15-CR-6126, 2016 WL 11268960, at *5 (W.D.N.Y.
Apr. 25, 2016) (challenge to search warrants did not warrant a
Franks hearing where the defendant “provide[d] no basis for
his claim and no sworn, corroborating statements other than
his own”); Bourguignon v. Guinta, 247 F. Supp. 2d 189, 194
(D. Conn. 2003) (granting summary judgment for defendants
on a pro se plaintiff's § 1983 false arrest claim where the
plaintiff “presented no evidence to support his claims” that the
arrest warrant affidavit contained material misrepresentations
and omissions); United States v. Rollack, 90 F. Supp. 2d
263, 270 (S.D.N.Y. 1999) (concluding that a defendant's own
affidavit submitted in support of his challenge to the veracity
of a search warrant affidavit “[was] insufficient to establish
the substantial preliminary showing required to warrant a
Franks hearing”).
31

Both assumptions are almost certainly true.
Contrary to Police Defendants’ argument, (see
Police Defs.’ Mem. 26), the case for probable
cause would likely sustain a fatal blow if Plaintiff's
alleged statement were omitted from the warrant
application. Stated differently, Plaintiff's putative
statement that he had more drugs in his anal
cavity was almost certainly a material factor in
Judge Williams’ decision to issue the warrant.

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Indeed, without this statement, it is not clear what
the basis for probable cause would be. Without
evidence that drug dealers routinely store multiple
bags of narcotics in their anal cavity, the fact
that the officers had already discovered Plaintiff's
contraband would arguably suggest there was
no need for an additional search. Though the
Court need not pursue this discussion in light of
its finding that Plaintiff has failed to provide a
sufficient offer of proof, it is safe to say that if
Plaintiff had come forward with such proof, Police
Defendants would not be entitled to qualified
immunity based on the good faith exception.
*44 Although Plaintiff denies having said there were more
drugs in his anal cavity, he has provided no “offer of proof”
besides his own conclusory allegation that this statement was
fabricated. (See Pl.’s Mem. 16–17.) Under the “stringent”
standard in Franks, such “unadorned conclusory charges” do
not make out a “substantial preliminary showing,” Nix, 2016
WL 11268960, at *5, and are therefore insufficient to defeat
a summary judgment motion, see Velardi, 40 F.3d at 574.
Plaintiff's only other challenge to the search warrant affidavit
is based on perceived inconsistencies between Pitt's testimony
and other statements by the officers. (See Pl.’s Mem. 17.)
Although Plaintiff's argument is a confusing swirl of theories
and allegations, his principle contention seems to be that
one of Pitt's statements in an incident report is inconsistent
with an account offered by Arestin. (See id.) In an incident
report summarizing his involvement in the events of May
8, Pitt stated that after he and the other officers retrieved
the drugs Plaintiff had tried to swallow, and after Plaintiff
had been transported to the hospital, Pitt was “advised by
[Sergeant] Weaver and [Officer] Canario that [Plaintiff] had
stated to officers that he had more ‘drugs’ up his ass that [they]
didn't find.” (See Pl.’s Opp'n Ex. K (Dkt. No. 204).) 32 In a
separate incident report, Arestin states that Plaintiff made this
alleged statement after he had tried to swallow the recovered
contraband. (Id. Ex. J.) 33 Plaintiff appears to argue that
Arestin's account is inconsistent with Pitt's account, because
“Pitt's police report indicates that [he] was advised by Canario
and Sgt. Weaver that the Plaintiff had made such admissions
during the strip search.” (Pl.’s Mem. 17.) In fact, that is not
what Pitt's incident report says. His report does not specify
when Plaintiff had reportedly made the remark about having
additional drugs. (See Pl.’s Opp'n Ex. K.) Thus, Plaintiff
has attacked an inconsistency that does not exist. Although
Plaintiff complains of other perceived inconsistencies among
the officers’ incident reports, they are not significant. (See

Pl.’s Mem. 17.) At most, these perceived inconsistencies
might be read to suggest some ambiguity as to when Plaintiff
made the alleged remark, but not whether he made the remark
in the first place.
32

Exhibit K to Plaintiff's Opposition submission is
located at ECF page 295 of Dkt. No. 204.

33

Exhibit J to Plaintiff's Opposition submission is
located at ECF page 294 of Dkt. No. 204.

Because Plaintiff has offered no more than “[u]nsupported
conclusory allegations of falsehood or material omission,”
which are insufficient to “support a Franks challenge,”
Velardi, 40 F.3d at 573, he has failed to establish that
Judge Williams “was knowingly or recklessly misled by any
statements or omissions in [Pitt's] affidavit,” Falso, 544 F.3d
at 128. Thus, on this basis at least, Plaintiff has failed to
establish that Defendants’ good faith reliance on the warrant
was not objectively reasonable.

ii. Whether Warrant Application Was So
Lacking in Indicia of Probable Cause As
To Render Reliance Upon it Unreasonable
Plaintiff also argues that Pitt used the fruits of a prior
unconstitutional search to obtain the search warrant. (See Pl.’s
Mem. 16.) In paragraph 8 of the affidavit submitted in support
of the search warrant, Pitt wrote the following:

[Plaintiff] was transported to the
City of Newburgh Police Department.
While at the station he [sic] was
advised by his supervisor Sgt.
Anderson that he wanted Strip Search
conducted. While conducting a strip
search for any possible narcotics,
officers located a small clear plastic
bag containing an off white rock like
substance, which later field tested
possible for the presence of cocaine, in
the rectum area of [Plaintiff].

(Search Warrant & Supporting Aff. 4.) Relying on a 1975
case from Maryland's Court of Appeals, Plaintiff argues that
“[e]vidence derived as a result of a prior illegal search or

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seizure[ ] cannot be used as a valid basis to justify the
existence of probable cause in a subsequent application for
a search warrant.” (Pl.’s Mem. 16 (citing Everhart v. State,
274 Md. 459, 481 (1975).) The Court interprets Plaintiff's
argument to implicate the third circumstance in which officers
may not claim the good faith exception—that is, “where the
application is so lacking in indicia of probable cause as to
render reliance upon it unreasonable ....” Raymonda, 780 F.3d
at 118.
Liberally construed to raise the strongest possible argument
in the context of the instant analysis regarding qualified
immunity and the good faith exception, Plaintiff's position
is “that agents who have engaged in a predicate Fourth
Amendment violation may not rely on a subsequently issued
warrant to establish good faith.” United States v. Ganias, 824
F.3d 199, 222 (2d Cir. 2016). The Second Circuit, though,
has declined to adopt such a rule on at least three occasions,
beginning with United States v. Thomas, 757 F.2d 1359 (2d
Cir. 1985), and continuing with United States v. Reilly, 76
F.3d 1271 (2d Cir. 1996), and United States v. Ganias, 824
F.3d 199 (2d Cir. 2016). See also United States v. Calhoun,
No. 16-CR-92, 2017 WL 1078634, at *14 (D. Conn. Mar.
21, 2017) (observing that the Second Circuit has applied the
“good faith exception to circumstances where the warrant
affidavit included information arguably tainted by a Fourth
Amendment violation, if it would nevertheless be objectively
reasonable for the officers to believe that the resulting warrant
had validly issued”).
*45 In Thomas, an agent for the Drug Enforcement Agency
(“DEA”), acting without a search warrant, used a drugsniffing dog to perform a “canine sniff” at an apartment. 757
F.2d at 1366. The canine sniff indicated there were narcotics
inside the apartment, and the agent submitted this evidence
to a magistrate in support of a search warrant application.
Id. Relying on this and other evidence, the judge determined
there was probable cause and issued a warrant. Id. The
defendant moved to suppress the evidence uncovered during
execution of the search warrant, arguing that the canine sniff
was a predicate constitutional violation, and that the fruits of
this unlawful search were material to the judge's finding of
probable cause. Id. at 1366. The Second Circuit decided as
a matter of first impression that the canine sniff constituted
a search, id. at 1367, and further concluded that without
the evidence obtained from that search, there would have
been no probable cause, id. at 1368. The court nevertheless
concluded that suppression was not warranted because the

agent's reliance on the warrant was objectively reasonable.
See id. As the court explained:

The DEA agent brought his evidence,
including the positive “alert” from
the canine, to a neutral and
detached magistrate. That magistrate
determined that probable cause to
search existed, and issued a search
warrant. There is nothing more the
officer could have or should have
done under these circumstances to be
sure his search would be legal. The
magistrate, whose duty it is to interpret
the law, determined that the canine
sniff could form the basis for probable
cause; it was reasonable for the officer
to rely on this determination.

Id. Accordingly, the court found that the agent was entitled to
the good faith exception. Id.
The Second Circuit distinguished Thomas when deciding
Reilly. In Reilly, two police officers unlawfully went onto the
defendant's curtilage and observed “a clearing with about 20
marijuana plants.” 76 F.3d at 1274. To obtain a search warrant,
the officers submitted to the county court judge a “barebones” description of the defendant's land,” and “failed to
give [the judge] information as to their behavior.” Id. at 1280.
The omitted information “was crucial,” the court explained,
and “[w]ithout it, the issuing judge could not possibly make
a valid assessment of the legality of the warrant that he was
asked to issue.” Id. In short, the affidavit submitted to the
judge “was almost calculated to mislead.” Id. The court held
that in such a situation, “[t]he good faith exception ... does not
protect searches by officers who fail to provide all potentially
adverse information to the issuing judge.” Id. In dicta, the
Reilly court suggested that the good faith exception also did
not apply for a second reason: “The issuance of the warrant
was itself premised on material obtained in a prior [illegal]
search.” Id. The court was quick to clarify, however, that

[i]n deciding that the good faith
exception does not apply when officers
do not provide an issuing judge with
details about their conduct during a

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pre-warrant search, we do not hold
that the fruit of illegal searches can
never be the basis for a search warrant
that the police can subsequently use in
good faith.

Id. at 1280–81 (emphasis added). There is a clear tension
between the court's first and second statements that was never
fully resolved in Reilly. But despite this ambiguity, the court
still clarified that the good faith inquiry is focused not on
whether there was a predicate unconstitutional search, but on
whether the officers fully disclosed their actions to the issuing
magistrate in good faith. As it observed:

The facts surrounding th[e] prior
search ... raise[d] serious doubts about
the officers’ good faith at that earlier
time. The officers went to [the judge]
with the fruits of this prior search
in hand, and it was on the basis of
that evidence that they asked him
to issue a warrant. Yet the officers
never gave [the judge] a full account
of what they did. And without such
an account, [the judge] could not
possibly decide whether their conduct
was sufficiently illegal and in bad faith
as to preclude a valid warrant. This
fact, by itself, makes [the good faith
exception] inapplicable.

*46 Id. at 1280 (emphasis added). Thus, the court made clear
that its holding was based solely on the officers’ bad faith
when failing to describe their actions to the issuing magistrate.
Whatever ambiguity lingered after Reilly was laid to rest
in Ganias. There, agents for the U.S. Army's Criminal
Investigation Division executed a search warrant and
obtained several mirrored hard drives belonging to an
accountant as part of an investigation into two of the
accountant's clients (but not the accountant himself). 824
F.3d at 202–03. But even after the government had finished
“identifying and segregating” the files that fell within the
scope of the warrant, it continued to retain all the data that
had been seized in the raid. Id. at 205–06. Roughly three
years after the raid, government investigators began to suspect

that the accountant himself may have been involved in taxrelated crimes. Id. at 206. Accordingly, the investigating agent
sought a search warrant to search files which she knew to
be on the mirrored hard drives, but which had not previously
been accessed. Id. at 207. The magistrate issued the warrant,
and the government ultimately indicted the accountant for
tax evasion. Id. On appeal, the defendant argued that the
government could not rely in good faith on the search warrant
because the issuance of the warrant was based on an alleged
constitutional violation—unlawful retention of the mirrored
hard drives. Id. at 222. 34 Invoking Reilly, he made the same
argument Plaintiff essentially raises here: “that agents who
have engaged in a predicate Fourth Amendment violation
may not rely on a subsequently issued warrant to establish
good faith.” Id. But Reilly, the Second Circuit said, “stands
for no such thing.” Id. The basis of the holding in Reilly,
the court explained, was the officers’ failure to provide the
magistrate “with an account of what they did,” such that the
magistrate “was unable to ascertain whether the evidence on
which the officers relied in seeking the warrant was ‘itself
obtained illegally and in bad faith.’ ” Id. (quoting Reilly,
76 F.3d at 1281). Contrasting the facts in Reilly to those in
Thomas, the Ganias court said that the distinction between
those cases “did not turn on whether the violation found
was predicate, or prior to, the subsequent search warrant
on which the officers eventually relied, but on whether the
officers’ reliance on the warrant was reasonable.” Ganias,
824 F.3d at 223. Thus, “it is not the case that good faith
reliance on a warrant is never possible in circumstances in
which a predicate constitutional violation has occurred.” Id.
In Ganias, the court found that the agent had “provided
sufficient information in her affidavit to apprise the magistrate
judge of the pertinent facts regarding the retention of the
mirrored copies of [the defendant's] hard drives—the alleged
constitutional violation on which [the defendant] relie[d].”
Id. at 224. As in Thomas, then, the magistrate had enough
information to determine whether the alleged unconstitutional
act precluded issuance of the warrant, and the government
agents were entitled to rely in good faith on the warrant that
followed. See id. at 224–25.
34

The Second Circuit declined to decide whether
the government's retention of the hard drives
constituted a Fourth Amendment violation. See
Ganias, 824 F.3d at 209.

*47 The Court concludes that here, as in Thomas and
Ganias, the search warrant affidavit contained sufficient
information to apprise the issuing judge of the officers’

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prior conduct. Although the Court has found that Police
Defendants’ visual body cavity search violated the Fourth
Amendment, see supra Section II.B.3.a, the search warrant
affidavit submitted to Judge Williams clearly states that the
officers had performed a “strip search” of Plaintiff and had
uncovered a small bag of drugs inside Plaintiff's “rectum
area,” (see Search Warrant & Supporting Aff. 4). Even
if Judge Williams, applying strict definitional categories,
interpreted “strip search” to connote something less invasive
than what took place, Pitt's statement that drugs were found
in Plaintiff's “rectum area” likely would have disabused him
of that notion. Thus, in contrast to the affidavit in Reilly, the
affidavit submitted to Judge Williams was not a “bare-bones”
document “calculated to mislead.” 76 F.3d at 1280. Like the
agents in Thomas and Ganias, Pitt apprised Judge Williams
“of the relevant conduct, so that [Judge Williams] was able to
determine whether any predicate illegality precluded issuance
of the warrant.” Ganias, 824 F.3d at 223. Whether this Court
would have reached the same probable cause determination
as Judge Williams is not the relevant inquiry, for “a court
reviewing a challenged warrant—whether at the district or
appellate level—‘must accord considerable deference to the
probable cause determination of the issuing magistrate.’ ”
Clark, 638 F.3d at 93 (quoting Walczyk, 496 F.3d at 157).
What matters is whether Pitt “disclosed all crucial facts for
the legal determination in question to the [issuing] judge.”
Ganias, 824 F.3d at 223. The Court concludes that he did.
There is one final point that merits comment. In Reilly, the
Second Circuit distinguished Thomas not only based on the
agent's full disclosure to the issuing magistrate, but also based
on the novelty of the predicate constitutional violation in
question: Whereas no court in the Second Circuit had held
a canine sniff unconstitutional before Thomas was decided,
it was well-established before Reilly that an invasion of
curtilage was unconstitutional. See Reilly, 76 F.3d at 1281.
Thus, in contrast to the officers in Reilly, the DEA agent
in Thomas “did not have any significant reason to believe
that what he had done was unconstitutional.” Id. The Second
Circuit invoked this distinction once again in Ganias, where
it observed that, at the time of the alleged constitutional
violation there—retention of mirrored hard drives—“no court
in this Circuit had held that [such] retention ... could violate
the Fourth Amendment,” and thus, the government agent
had no particular reason to suspect that her conduct was
unconstitutional. 824 F.3d at 225; see also Calhoun, 2017 WL
1078634, at *16 (observing that “[i]n Thomas and Ganias, the
Second Circuit was deciding novel questions at the very edge
of Fourth Amendment law”). In this sense, the instant case

falls more in line with Reilly than with Thomas or Ganias.
As noted supra Section II.B.3.a.ii, reasonable police officers
in New York state would have known as of 2013 that visual
body cavity searches require reasonable suspicion. See Sloley,
945 F.3d at 40. Thus, in contrast to the canine sniff in Thomas
or the retention of mirrored hard drives in Ganias, the visual
body cavity search here does not sit at the vanguard of Fourth
Amendment violations. But while the novelty of the predicate
conduct may provide an additional basis for distinguishing
the facts in Thomas and Ganias from those in Reilly, that
was not the primary distinction on which the Second Circuit
relied in either Reilly or Ganias. In both cases, the court
focused mainly on whether the law enforcement officers had
sufficiently disclosed their underlying conduct to the issuing
magistrate. See Ganias, 824 F.3d at 222–24; Reilly, 76 F.3d
at 1280–81. Nothing in either opinion suggests that where,
as here, a predicate constitutional violation has occurred, the
novelty of that violation is a sine qua non for an officer's
subsequent good faith reliance on a warrant, particularly when
the officer has sufficiently disclosed the circumstances of
that violation to the issuing magistrate. Thus, although the
visual body cavity search at the police station was not a novel
constitutional violation, this fact does not foreclose Police
Defendants’ good faith reliance on the subsequently issued
warrant.
If Pitt and his fellow officers believed they had committed
a constitutional offense, Pitt might well have omitted
certain details from his affidavit to Judge Williams. But
instead, his affidavit acknowledged the “strip search,” as
well as the fact that drugs had been located in Plaintiff's
“rectum area.” (Search Warrant & Supporting Aff. 4.) 35 His
transparency in the matter suggests his good faith in seeking
the warrant. Most important, Judge Williams was sufficiently
apprised of the underlying facts to reach a determination not
only whether there was probable cause, but also “whether
any predicate illegality precluded issuance of the warrant.”
Ganias, 824 F.3d at 223. Having “disclose[d] all potentially
adverse information to the issuing judge,” Police Defendants
were entitled to rely on the subsequently issued warrant. Id.
at 221.
35

Indeed, the description Pitt provided in the search
warrant affidavit is arguably more incriminating
to the officers than the account they have given
elsewhere. As discussed in Section I.A.2 supra,
the officers in the strip search room have affirmed
that the bag of drugs fell out of Plaintiff's
buttocks. But Judge Williams might easily have

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read the language in Pitt's affidavit to suggest
that the officers had manually retrieved the drugs
from Plaintiff's “rectum area.” (Search Warrant
& Supporting Aff. 4.) Thus, Pitt's imprecise use
of language actually may have suggested that a
more serious constitutional infraction took place
—namely, a manual body cavity search. Pitt's
description further suggests he was not trying to
conceal the officers’ underlying conduct.
*48 Based on the foregoing analysis, the Court cannot say
that Pitt's application was “so lacking in indicia of probable
cause as to render reliance upon it unreasonable.” Raymonda,
780 F.3d at 118. Because none of the four circumstances
that might preclude good faith reliance apply to the facts of
this case, the Court finds that Police Defendants’ good faith
reliance on the warrant was “objectively reasonable,” see id.,
and they are therefore shielded by qualified immunity with
respect to the searches that occurred pursuant to the search
warrant, see Simms, 115 F.3d at 1106; Green, 96 F. Supp. 3d
at 286.
Having determined that the Police Defendants who
reasonably relied on the search warrant in good faith are
entitled to qualified immunity, the Court turns to consider the
relevant claims themselves.

c. Manual Body Cavity Search at St. Luke's (Count 15)
In Count 15, Plaintiff brings an unreasonable search claim
against Police Defendants Canario and Saintiche and Medical
Defendant Lemos. (SAC ¶ 132.) The gravamen of the claim
is that these Defendants performed a manual body cavity
search “without [a] warrant, consent[,] or trained medical
doctors.” (Id.) Plaintiff alleges in relevant part that Canario
and Saintiche “forcefully turned [him] over onto [his] side and
pinned [him] down on the hospital bed.” (Id. ¶ 92; see also
Pl.’s Opp'n 29 (arguing that Canario and Saintiche “physically
assisted Lemos in performing the digital rectal examination
by forcefully pinning the Plaintiff to the hospital bed while
he was handcuffed to it”).) According to his account, Lemos
then “came over, pulled [his] pants down and penetrated [his]
rectum without any lubrication for about [five] seconds,”
which “consist[ed] of her twirling [two] fingers around in
a circular motion as far up as she could go.” (SAC ¶¶ 93–
94.) The Court will consider the claim against Canario and
Saintiche separately from the claim against Lemos.

i. Unreasonable Search Claim
Against Canario and Saintiche
Officers Canario and Saintiche have both affirmed that they
took Plaintiff to St. Luke's for his second visit after learning
that a judge had issued a search warrant to inspect Plaintiff's
anal cavity for additional narcotics. (See Canario Aff. ¶ 26;
Saintiche Aff. ¶ 19.) Apart from his meritless claim that the
manual body cavity search actually took place during the
first and only visit to St. Luke's, which the Court has already
rejected, see supra Section II.B.7.a, Plaintiff has offered no
credible basis to question Canario and Saintiche's good faith
reliance on the search warrant. Accordingly, for the reasons
just discussed, Canario and Saintiche are entitled to qualified
immunity with respect to Plaintiff's unreasonable search claim
in Count 15.
Having concluded that Canario and Saintiche are shielded
by qualified immunity, the Court need only consider whether
they exceeded the scope of the authorized search or carried
out the search in an unreasonable manner. See Walter v.
United States, 447 U.S. 649, 656 (1980) (plurality opinion)
(“When an official search is properly authorized—whether by
consent or by the issuance of a valid warrant—the scope of the
search is limited by the terms of its authorization.”); United
States v. Shi Yan Liu, 239 F.3d 138, 141 (2d Cir. 2000) (“[A]
search that greatly exceeds the bounds of a warrant and is not
conducted in good faith is essentially indistinguishable from
a general search.”); Vaher, 916 F. Supp. 2d at 426 (“[E]ven
when a search is conducted pursuant to a valid search warrant,
police officers must still execute the warrant in good faith
and within the confines of the limitations contained in the
search warrant.”); Bolden, 344 F. Supp. 2d at 416 (“No search
warrant shields a police officer from carrying out a search in
an unreasonable manner or from employing excessive force
during a search.”).
*49 Insofar as Count 15 is predicated on the manual body
cavity search, Canario and Saintiche neither exceeded the
scope of the authorized search nor conducted the search in an
unreasonable manner. The only allegation that could remotely
suggest improper behavior is Plaintiff's contention that
Canario and Saintiche forcefully pinned him to the hospital
bed. (See SAC ¶ 92.) But even if the Court accepts Plaintiff's
allegations as true, Canario and Saintiche's actions do not
constitute an unreasonable or excessive use of force under
the circumstances. “Physical force is often necessary when
effectuating arrests or executing search warrants and, thus,

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‘not every push or shove’ is unconstitutionally excessive,
‘even if it may later seem unnecessary in the peace of a judge's
chambers.’ ” Genovese v. Town of Southampton, 921 F. Supp.
2d 8, 20–21 (E.D.N.Y. 2013) (quoting Maxwell, 380 F.3d
at 108). Here, quite apart from the valid law enforcement
interest in locating and seizing the supposed narcotics, (see
generally Search Warrant & Supporting Aff.), the evidence
shows there was also an urgent medical interest in performing
the search, (see Durbin-French Aff. ¶ 24 (explaining that
a “foreign object, whether swallowed or inserted into the
rectum[,] could cause an obstruction which could be a surgical
emergency”)). Under these circumstances, it would have been
reasonable for Canario and Saintiche to restrain Plaintiff in
order to allow medical staff to perform the search. Cf. J.L.
v. E. Suffolk Boces, No. 14-CV-4565, 2018 WL 1882847, at
*10–11 (E.D.N.Y. Apr. 19, 2018) (concluding on summary
judgment that, in the context of a Fourth Amendment
seizure, the defendant's use of force—tackling the plaintiff
and holding his arms—was objectively reasonable in light
of a “fast-moving and potentially dangerous situation”); see
also Spencer v. Roche, 755 F. Supp. 2d 250, 257, 260–
61, 268 (D. Mass. 2010) (concluding on summary judgment
that a manual body cavity search had been performed in a
reasonable manner where the arrestee—who was handcuffed
to the gurney—had his arms and legs held down by police
during the search), aff'd, 659 F.3d 142 (1st Cir. 2011).
Accordingly, Police Defendants’ Motion is granted with
respect to Count 15.

ii. Unreasonable Search Claim Against Medical Defendant
Although Plaintiff brings his unreasonable search claim
against Nurse Lemos based on his discredited theory that
there was only one trip to St. Luke's, (see SAC ¶ 132; Pl.’s
Opp'n 21–22), his medical records establish that it was Nurse
Practitioner Durbin-French who performed the manual body
cavity search during the second visit to the hospital, (see
ER Records 25; see also Durbin-French Aff. ¶¶ 6, 11–23).
Accordingly, Medical Defendants argue that the Court should
dismiss Counts 12 through 18 because Plaintiff has named the
wrong Defendant. (See Med. Defs.’ Mem. 17.) Although here
it is questionable whether Plaintiff's mistake in naming the
wrong party was the result of mistake rather than bad faith,
cf. Park B. Smith, Inc. v. CHF Indus. Inc., 811 F. Supp. 2d
766, 772 (S.D.N.Y. 2011), in light of the latitude afforded
to pro se litigants, as well as federal courts’ preference “to
resolve disputes on their merits rather than based on technical

deficiencies in the pleadings or motion papers,” Simon v.
City of New York, No. 09-CV-1302, 2011 WL 317975, at *3
(E.D.N.Y. Jan. 3, 2011), report and recommendation adopted,
2011 WL 344757 (E.D.N.Y. Feb. 1, 2011), the Court will
exercise its discretion and allow a substitution of Defendant
Durbin-French for Nurse Lemos in Counts 12 through 18.
To determine whether Plaintiff's claim survives summary
judgment, the Court must first decide whether Durbin-French
was functioning as a state actor. “Section 1983 provides a
cause of action against any person who deprives an individual
of federally guaranteed rights ‘under color’ of state law.”
Filarsky v. Delia, 566 U.S. 377, 383 (2012) (citation omitted).
Thus, to prevail on a § 1983 claim, a plaintiff must establish
(1) that the challenged conduct was “committed by a person
acting under color of state law,” and (2) that such conduct
“deprived [the plaintiff] of rights, privileges, or immunities
secured by the Constitution or laws of the United States.”
Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (citation and
quotation marks omitted). Although the first (i.e., “color-ofstate-law”) requirement is often fulfilled by defendants who
are government officials acting with state power, a plaintiff
may also establish a § 1983 claim against a “private individual
defendant” where that individual and a “state official were
acting in concert.” Porter-McWilliams v. Anderson, No. 07CV-407, 2007 WL 4276801, at *2 (S.D.N.Y. Dec. 3, 2007);
see also Ciambriello v. County of Nassau, 292 F.3d 307,
324 (2d Cir. 2002) (“A private actor acts under the color of
state law when the private actor is a willful participant in
joint activity with the State or its agents.” (quotation marks
omitted) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144,
152 (1970))). Three main tests have emerged to determine
when a private entity functions as a state actor:

*50 For the purposes of [§] 1983,
the actions of a nominally private
entity are attributable to the state ...
(1) [when] the entity acts pursuant
to the coercive power of the state
or is controlled by the state (“the
compulsion test”); (2) when the state
provides significant encouragement to
the entity, the entity is a willful
participant in joint activity with the
state, or the entity's functions are
entwined with state policies (“the joint
action test” or “close nexus test”); or
(3) when the entity has been delegated

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a public function by the state, (“the
public function test”).

Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d
255, 257 (2d Cir. 2008) (alterations and some quotation marks
omitted).
As a general matter, “private hospitals do not act under the
color of law for § 1983 purposes.” Sykes v. McPhillips, 412
F. Supp. 2d 197, 200 (N.D.N.Y. 2006) (quotation marks
omitted); see also Kia P. v. McIntyre, 235 F.3d 749, 755–57
(2d Cir. 2000) (holding that a private hospital was not a state
or municipal facility and thus was not liable pursuant to §
1983, insofar as it was acting “as a private actor providing
medical care”); Goonewardena v. N. Shore Long Island
Jewish Health Sys., No. 11-CV-2456, 2014 WL 1271197, at
*11 n.14 (E.D.N.Y. Mar. 26, 2014) (finding that, because the
defendant was a private hospital and the plaintiff failed to
plead any facts suggesting that the hospital acted in concert
with state actors, the hospital could not be a state actor
under § 1983). However, private medical providers may be
held liable as state actors under certain circumstances; thus,
when a private company provides medical care in prisons, it
“performs a role traditionally within the exclusive prerogative
of the state and therefore ... is the functional equivalent of
the municipality.” Bess v. City of New York, No. 11-CV-6704,
2013 WL 1164919, at *2 (S.D.N.Y. Mar. 19, 2013). But
“courts have held that the provision of medical care by a
private hospital to an individual in police custody on the same
terms as the hospital would provide to the public at large does
not satisfy the state action test.” Hollman v. County of Suffolk,
No. 06-CV-3589, 2011 WL 280927, at *5 (E.D.N.Y. Jan. 27,
2011); see also Kavazanjian v. Rice, No. 03-CV-1923, 2008
WL 5340988, at *12 (E.D.N.Y. Dec. 22, 2008) (“Providing
isolated emergency treatment to a prisoner on equal terms
with the general public ... does not constitute state action.”);
Morse v. City of New York, No. 00-CV-2528, 2001 WL
968996, at *8 (S.D.N.Y. Aug. 24, 2001) (“The fact that [the
plaintiff] was brought to the hospital from police custody
and was released from the hospital into police custody is
insufficient to transform this private hospital and its staff into
state actors for [§] 1983 purposes.”).
This case presents the less common scenario in which a
private hospital employee did act as an instrumentality of
the state. In performing the cavity search and x-ray, DurbinFrench was helping the police locate and seize any illegal
narcotics, and thus, she was primarily performing a law-

enforcement function rather than a medical function. While
there may also have been a compelling medical interest in
identifying and removing any contraband secreted inside
Plaintiff's body cavity, this interest was ancillary to the lawenforcement interest. It is unlikely, for example, that the
search would have occurred without the search warrant signed
by Judge Williams, and the purpose of the search warrant
was to “search for and seize” illegal narcotics. (See Search
Warrant & Supporting Aff. 2.) By searching Plaintiff's person
at the compulsion of the police in order to locate and seize
illegal narcotics, Durbin-French was “perform[ing] a role
traditionally within the exclusive prerogative of the state.”
Bess, 2013 WL 1164919, at *2. This feature distinguishes the
case from those in which hospitals and their staff act primarily
to provide medical care, in which case they are held not to
be state actors. Cf., e.g., Kavazanjian, 2008 WL 5340988,
at *2–3 (finding that a hospital's treatment of an arrestee
—which included x-rays and CT scans to check for spinal
fractures and other internal injuries, a rectal examination to
check for blood or pelvic fractures, and insertion of a catheter
to identify any blood coming from the kidneys or bladder—
constituted “isolated emergency treatment [provided] ... on
equal terms with the general public,” and therefore did not
constitute state action). Indeed, the Court has found guidance
in the Second Circuit's Kia P. decision, which underscores the
importance of examining the nature of a healthcare provider's
actions on a case-by-case basis. There, for example, the court
held that where a private hospital had tested and treated a
newborn for suspected methadone withdrawal, it was acting
“in its capacity as a private provider of medical care,” and
was not a state actor for purposes of § 1983 liability. See
235 F.3d at 756. But the court also observed that insofar
as the hospital delayed releasing the newborn due to the
“specter of potential child abuse or neglect,” the hospital
was acting “in its social welfare role” and “as part of the
reporting and enforcement machinery for” the government
agency responsible for detecting and stopping child abuse, in
which case the hospital was functioning as a state actor. Id.
Although the court ultimately concluded that the hospital's
“actions in its capacity as a state actor had no effect, and
thus did not subject it to liability under § 1983,” id. at 757,
the court's analysis illustrates the subtle distinctions that are
relevant when deciding whether a private healthcare provider
functions as a state actor.
*51 The Court's conclusion that Durbin-French acted under
color of law by performing the cavity search and x-ray finds
support in another recent case from this Circuit. In Turner
v. Procopio, No. 13-CV-693, 2020 WL 2220244 (W.D.N.Y.

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Mar. 27, 2020), report and recommendation adopted, 2020
WL 2219503 (W.D.N.Y. May 7, 2020), appeal dismissed,
2020 WL 7329107 (2d Cir. 2020), the police obtained a
search warrant for a cavity search “of the vaginal and rectal
area” of the plaintiff, who was suspected of smuggling drugs,
2020 WL 2220244, at *3. The search warrant also authorized
an x-ray of the plaintiff's pelvic area. Id. The plaintiff was
transported to the hospital, where a doctor performed an
x-ray and then performed a manual body cavity search of
the plaintiff's vaginal and rectal cavities. Id. The plaintiff
brought a § 1983 action against the doctor, as well as a
nurse who was present during the search, alleging that she
had been subjected to an unlawful search. Id. at *1. The
court concluded that the doctor and nurse were both “entitled
to qualified immunity as private individuals and medical
personnel acting pursuant to a facially valid search warrant,”
thereby assuming that these defendants were state actors for
purposes of § 1983 liability. See id. at *13. In reaching this
conclusion, the court relied in part on Rodriques v. Furtado,
950 F.2d 805 (1st Cir. 1991), a case in which the First
Circuit, under nearly identical facts, held that the doctor
performing the cavity inspection functioned as a state actor,
id. at 814. As the court in Rodriques observed, “[t]he scope
and motivation for the search were established solely by
the state's investigatory goals and justified solely by the
search warrant.” Id. That rationale is equally apt here. DurbinFrench's “role in the search was purely that of an auxiliary
to normal police search procedures,” and she “exercised
the power of search traditionally reserved exclusively to
the State because of the ‘coercive power’ and ‘significant
encouragement’ represented by the search warrant.” See id.
(citation omitted). For these reasons, the Court finds that
Durbin-French was functioning as a state actor and is subject
to liability under § 1983.
The Court must also consider the possibility, however,
that Durbin-French is entitled to qualified immunity. The
question whether qualified immunity may extend to private
individuals functioning as state actors “is a more complicated
question than one might think.” P.P. v. City of New York,
No. 13-CV-5049, 2014 WL 4704800, at *16 (S.D.N.Y. Sept.
19, 2014). The Supreme Court's opinions in Richardson v.
McKnight, 521 U.S. 399 (1997), and Filarsky v. Delia, 566
U.S. 377 (2012), provide the touchstone for this Court's
analysis.
In Richardson, the Supreme Court held that two prison
guards employed by a private, for-profit company that
managed a correctional facility in Tennessee were not entitled

to qualified immunity. See 521 U.S. at 412. In reaching
this conclusion, the Court considered whether the rationale
for qualified immunity justified extending the protection
to private prison guards. See id. at 407–12. The Court
concluded that “the most important special government
immunity-producing concern—unwarranted timidity—is less
likely present, or at least is not special, when a private
company subject to competitive market pressures operates
a prison.” Id. at 409. The Court explained that when a
private firm whose guards are too aggressive faces claims
for damages, that will raise costs, “thereby threatening [the
firm's] replacement.” Id. At the same time, however, a
firm with overly timid guards will also face competitive
pressures from other firms “that demonstrate their ability to
do both a safer and more effective job.” Id. Thus, the Court
reasoned, “marketplace pressures provide the private firm
with strong incentives to avoid overly timid, insufficiently
vigorous, unduly fearful, or ‘nonarduous’ employee job
performance.” Id. at 410. That was particularly true given
several factors in Richardson, where (1) the defendants
worked for “a large, multistate private prison management
firm”; (2) that firm was “systematically organized to
perform a major administrative task for profit”; (3) the firm
“perform[ed] that task independently, with relatively less
ongoing direct state supervision”; (4) the firm was required
to buy insurance to compensate civil rights tort victims; and
(5) the firm's contract expired after three years, meaning
its performance was “disciplined, not only by state review,”
but also by general marketplace pressures. Id. at 409–10.
The Supreme Court contrasted this system to that in which
government employees operate, which “is often characterized
by multidepartment civil service rules that, while providing
employees security, may limit the incentives or the ability of
individual departments or supervisors flexibly to reward, or
to punish, individual employees.” Id. at 410–11.
*52 In concluding that private prison guards were
not entitled to qualified immunity, the Richardson Court
underscored the narrow nature of its holding. That is,
Richardson involved a context in which a private firm, “with
limited direct supervision by the government,” undertook a
major administrative task for profit, and “in competition with
other firms.” Id. at 413. The Court explicitly noted that the
case did “not involve a private individual briefly associated
with a government body, serving as an adjunct to government
on an essential government activity, or acting under close
official supervision.” Id.

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The Supreme Court confronted this latter scenario 15 years
later in Filarsky. In that case, the defendant was a private
employment attorney hired on an ad hoc basis by the City
of Rialto, California to interview a firefighter in connection
with an administrative investigation. 566 U.S. at 381. The
firefighter was suspected of using medical leave to conduct
a home-improvement project. Id. at 380–81. As part of the
interview, the attorney ordered the firefighter to produce
certain building supplies he had been observed purchasing.
Id. at 381. After complying with the order, the firefighter
brought a § 1983 action against the municipality and the
lawyer, among others, arguing that the order to produce the
materials violated his rights under the Fourth and Fourteenth
Amendments. Id. at 382. The Ninth Circuit denied qualified
immunity to the lawyer, reasoning that he was a private
attorney, and not a City employee. Id. at 382–83. The Supreme
Court unanimously reversed. “Affording immunity not only
to public employees but also to others acting on behalf
of the government,” the Court said, “serves to ensure that
talented candidates are not deterred by the threat of damages
suits from entering public service.” Id. at 390 (citation,
quotation marks, and brackets omitted). The Court observed
that the government often “must look outside its permanent
work force to secure the services of private individuals,”
particularly where there is a need “for specialized knowledge
or expertise.” Id. Of particular relevance here, the Court noted
that

[s]ometimes ... private individuals
will work in close coordination with
public employees, and face threatened
legal action for the same conduct ...
Because government employees will
often be protected from suit by some
form of immunity, those working
alongside them could be left holding
the bag—facing full liability for
actions taken in conjunction with
government employees who enjoy
immunity for the same activity.
Under such circumstances, any private
individual with a choice might think
twice before accepting a government
assignment.

Id. at 391 (record citation omitted). Accordingly, the Court
held that private individuals “engaged in public service on

a temporary or occasional basis” are “entitled to seek the
protection of qualified immunity.” Id. at 388–89, 393–94.
To determine whether a private actor is entitled to seek
the protection of qualified immunity, another court in
this District has analyzed whether the private actor more
resembles the private attorney in Filarksy or the private
prison guards in Richardson. In P.P. v. City of New York,
the defendants included individual social and case workers
employed by non-profit corporations that provided fostercare services pursuant to a contract with the City of New York.
See 2014 WL 4704800, at *1–2. Then-Judge (now Chief
Judge) McMahon explained that in contrast to private prison
operators, whose profit motives “can be counted upon to
draw the most talented candidates,” private foster-care homes
would have a harder time recruiting “talented candidates to be
social workers (an already thankless job) if those employees
were exposed to § 1983 liability without the safe harbor of
qualified immunity.” Id. at *19. Thus, the defendants in P.P.
were more like the private lawyer in Filarsky, and therefore
able to invoke the protections of qualified immunity. Another
court in this District has extended the protections of qualified
immunity to private actors, see Sullivan v. City of New York,
No. 14-CV-1334, 2015 WL 5025296, at *8 (S.D.N.Y. Aug.
25, 2015) (extending qualified immunity to an employee
of the New York City Criminal Justice Agency, which is a
“not-for-profit entity under contract with the City of New
York to aid the City's administration of the criminal justice
system by, among other things, performing bail interviews”),
and, as noted supra, another court in the Second Circuit has
extended qualified immunity to private healthcare providers
under circumstances virtually identical to those in this case,
see Turner, 2020 WL 2220244, at *13.
*53 Here, the Court has no difficulty concluding that
Durbin-French is entitled to qualified immunity. Police
Defendants came to St. Luke's to conduct a highly invasive
search that required “specialized knowledge or expertise”
beyond its “permanent work force.” Filarsky, 566 U.S. at
390. Like the lawyer in Filarsky, Durbin-French participated
in this public service on a brief, limited basis, working “in
close coordination with public employees.” Id. at 391. Under
these circumstances, it would make no sense for DurbinFrench to “be left holding the bag—facing full liability for
actions taken in conjunction with government employees who
enjoy immunity for the same activity.” Id. The Court therefore
holds that Durbin-French is entitled to qualified immunity
in connection with the visual body cavity search and x-ray
performed on Plaintiff.

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But even if Durbin-French has qualified immunity based
on her good faith reliance on the search warrant, she—
like Police Defendants—is only protected to the extent her
search was conducted in a reasonable manner within the
scope of the warrant. See Walter, 447 U.S. at 656; Shi
Yan Liu, 239 F.3d at 140–41; Vaher, 916 F. Supp. 2d at
426; Bolden, 344 F. Supp. 2d at 416. Here, Plaintiff alleges
that the nurse did not use lubricant when probing his anal
cavity. (See SAC ¶ 135; Pl.’s Opp'n 24.) 36 By contrast,
Durbin-French maintains that whenever she performed a
search of this nature, she “would don examination gloves
and apply a liberal amount of lubricant” before penetrating
the person's anal cavity. (Durbin-French Aff. ¶ 19.) Although
the Court has not identified a case explicitly holding that
lubricant is a requisite part of a reasonable manual body cavity
search, the relevant case law suggests as much. See United
States v. Fowlkes, 804 F.3d 954, 964, 967 (9th Cir. 2015)
(concluding that police officers performed an unreasonable
search when they extracted contraband from an arrestee's
anal cavity without the use of lubricant, medical personnel,
or a sanitary setting); Diggins v. Coe, No. 16-CV-242, 2019
WL 2491909, at *1 (S.D. Ill. June 14, 2019) (noting that on
summary judgment, the court had concluded “it was possible
for a jury to find” that the “lack of lubrication rendered [a
manual body cavity] search unreasonable”); cf. Davenport
v. Tanner, No. 13-CV-505, 2015 WL 4635449, at *2 *7–
9 (E.D. La. July 31, 2015) (manual body cavity search
not performed in unreasonable manner where the examining
physician used a “lubricated index finger” to perform the
search); Roche, 659 F.3d at 257, 260–61 (concluding on
summary judgment that a manual body cavity search had
been reasonably performed where the doctor “lubricated his
fingers” before the search). 37 Thus, whether the manual
body cavity search was performed in a reasonable manner
turns on a disputed issue of fact—namely, whether DurbinFrench used lubricant. Because the Court is confronted with
a “he said, she said” scenario, it may not resolve this issue
on summary judgment. See Fincher, 604 F.3d at 726. The
jury will have to decide for itself whose version of events to
believe.
36

Insofar as Plaintiff's claim against Durbin-French
is also predicated on the allegation that she told him
the police had “a search warrant and ... [could] use
deadly force in order to get [him] to comply,” (see
SAC ¶ 88), the claim fails, for “[g]eneralized fear
or intimidation alone is not enough to ... render [a]

search unlawful,” Chambers v. Lombardi, No. 17CV-7557, 2020 WL 2097558, at *7 (S.D.N.Y. May
1, 2020).
37

To the extent Plaintiff also argues the search
was unreasonable because it was performed
without anesthesia or medical dilation, (see SAC
¶ 135; Pl.’s Opp'n 24), his claim is baseless.
Plaintiff appears to rely on Fowlkes, supra, where
several police officers retrieved contraband from
an arrestee's anal cavity without “summon[ing]
medical personnel, [without] mov[ing] [the
arrestee] to a sanitary location, ... [and] without
the assistance of anesthesia, lubricant, or medical
dilation.” 804 F.3d at 959. Here, by contrast,
the search was performed by a trained nurse
in a hospital setting. Moreover, when the Ninth
Circuit discussed why the search in Fowlkes was
unreasonable, the court only mentioned the fact that
it was performed (i) without lubrication, (ii) outside
a sanitary setting, and (iii) without “the guidance
or assistance of medical personnel.” See id. at 964,
967.

*54 Accordingly, Medical Defendants’ Motion is denied
with respect to Count 15.

d. X-Ray Examination (Count 16)
Plaintiff's unreasonable search claim in Count 16 is based
on the x-ray that was performed in addition to the manual
body cavity search. (See SAC ¶ 133; Pl.’s Opp'n 23.) Having
found that Canario, Saintiche, and Durbin-French are entitled
to qualified immunity, the only question to resolve is whether
the x-ray examination exceeded the scope of the search
warrant. 38
38

As with Count 15, Plaintiff's claim in Count
16 is based on the allegation that the search
was performed “without [a] warrant, consent[,] or
trained medical doctors.” (SAC ¶ 133.) The Court
has already concluded that the second visit to St.
Luke's occurred after the police had obtained a
search warrant, and thus, the police and medical
staff did not need Plaintiff's consent to execute
a search pursuant to the warrant, see Michigan
v. Tyler, 436 U.S. 499, 506 (1978) (“[A] search
of private property without proper consent is

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unreasonable unless it has been authorized by a
valid search warrant” (citation and quotation marks
omitted)); see also Bumper v. North Carolina,
391 U.S. 543, 553 (1968) (Harlan, J., concurring)
(observing that “if the officers had a valid search
warrant, no consent was required to make the
search lawful”). Plaintiff's claim that the medical
personnel performing the manual body cavity
search and x-ray lacked appropriate medical
training is baseless and unsupported by the record.
The Court notes at the outset that there is some inconsistency
in the record as to who ordered the x-ray examination and
for what purpose. Plaintiff alleges that Canario and Saintiche
were responsible for suggesting that an x-ray examination be
performed. (See Pl.’s Opp'n 23.) Durbin-French states that the
x-ray was performed “not because a police officer requested
it,” but because “good medical practice requires that a KUB
x-ray be done ... [when the patient has possibly] ingest[ed]
a foreign object or plac[ed] objects in the rectum.” (DurbinFrench Aff. ¶¶ 24–25.) However, there is also a note in
the medical records which states, “[p]er Sergeant, [x-ray] if
needed may be completed as well,” (ER Records 29), which
suggests that the x-ray request may have come from the
police.
But regardless of who decided to have the x-ray examination
performed, the Court concludes that this search was still
within the scope of the warrant. Another court in this District
has observed in a slightly different context that “x-ray
searches are less invasive than a strip search,” and thus, “a
prisoner's rights are not violated by x-ray searches conducted
pursuant to a reasonable prison policy.” See Manley v.
Ramos, No. 13-CV-2662, 2014 WL 1496094, at *2 (S.D.N.Y.
Apr. 16, 2014). Here too, the x-ray performed on Plaintiff
was far less invasive than the manual body cavity search
performed a few minutes earlier. And although the search
warrant issued by Judge Williams did not explicitly provide
for an x-ray examination, cf. Turner, 2020 WL 2220244,
at *3 (involving a search warrant that authorized an xray of the plaintiff's pelvic and stomach area), the breadth
of the search warrant's language still encompasses such a
procedure. Specifically, the warrant provides that police and
medical personnel were authorized not only “to search and
inspect,” but also to “photograph and/or record in any way
the person of [Plaintiff,] including an inspection of the
rectal area.” (Search Warrant & Supporting Aff. 2 (emphasis
added).) Two conclusions follow from this language. First,
police and medical personnel were authorized to search
Plaintiff's entire “person,” not just his “rectal area.” (Id.)

Second, they were authorized to “photograph” Plaintiff “in
any way.” (Id.) To perform an x-ray examination is “to
examine, treat, or photograph with X-rays,” see MerriamWebster, x-ray, Merriam-Webster.com/dictionary/x-ray (last
visited Mar. 1, 2021), and thus, this procedure fell squarely
within the scope of the warrant.
*55 In reaching this conclusion, the Court has found
persuasive guidance in Spencer v. Roche, a case in which
the plaintiff likewise argued that a KUB x-ray exceeded the
scope of a search warrant authorizing a manual body cavity
search of the plaintiff's anal cavity. See 659 F.3d at 144, 146,
148–49. Rejecting this argument, the First Circuit observed
that a diagnostic x-ray “is a routine medical procedure that
is brisk, painless, and generally regarded as safe,” and there
was no evidence the x-ray was performed in a dangerous
or inappropriate manner, particularly given that it had been
performed “by trained professionals in a hospital setting.” Id.
at 147. (Cf. Durbin-French Aff. ¶ 27 (noting that Plaintiff's
KUB x-ray “was performed in the x-ray department, by a
trained radiology technician[ ] in a hospital setting and with
minimal intrusion upon the [P]laintiff”).) Insofar as the x-ray
had revealed areas of the plaintiff's body beyond the scope
authorized in the warrant, such as his stomach, the court said
that such viewing “was incidental to the valid anal cavity
search and, thus, did not require an independent showing of
probable cause.” 659 F.3d at 148. The court also observed
that based on evidence in the record, a KUB x-ray “is the
only type of x-ray that can capture the entire anal cavity.” Id.
(Cf. Durbin-French Aff. ¶ 24.) “It follows inexorably,” the
court said, “that the KUB x-ray was within the scope of the
warrant.” 659 F.3d at 148.
Although Spencer’s rationale is equally applicable to the facts
of this case, the conclusion here is even more straightforward
in light of the expansive authorizing language in the search
warrant. The Court therefore concludes that the x-ray did not
exceed the scope of the warrant, and Canario, Saintiche, and
Durbin-French are each entitled to qualified immunity. Police
Defendants and Medical Defendants’ respective Motions are
both granted with respect to Count 16.

e. Right to Privacy Claim (Count 17)
In Count 17, Plaintiff brings a cause of action for violation
of his right to privacy. (See SAC ¶ 134.) This count is based
on the fact that Durbin-French—a nurse of the opposite sex
—performed the anal cavity search. (See id.)

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The Second Circuit has recognized that a visual body cavity
search—and, a fortiori, a manual body cavity search—is
invasive “[r]egardless of who performs the search.” Harris,
818 F.3d at 58. But although “all forced observations or
inspections of the naked body implicate a privacy concern,
it is generally considered a greater invasion to have one's
naked body viewed by a member of the opposite sex.” Id.
at 59 (citation omitted). Accordingly, the Second Circuit has
stated that in the prison context, “cross-gender strip searches
of inmates conducted in the absence of an emergency or other
exigent circumstances are generally frowned upon.” Id. at 62.
In Holland v. City of New York, 197 F. Supp. 3d 529 (S.D.N.Y.
2016), another court in this District had occasion to apply
these principles in the pretrial-detainee context. While being
held as a pretrial detainee at Rikers Island, the plaintiff in
Holland was subjected to an invasive visual body cavity
search by a female corrections officer during an emergency
lockdown inspection that arose in response to a stabbing in
the plaintiff's housing unit. Id. at 536. The court dismissed
the unreasonable search claim, holding that the corrections
officer was entitled to qualified immunity. See id. at 542–45.
As Judge Torres explained, “there appear to be no Supreme
Court or Second Circuit decisions establishing that, in an
emergency situation, inmates have a Fourth Amendment right
to be free from strip searches—even body cavity searches—
by officers of the opposite sex.” Id. at 544. The court therefore
found that, in the absence of allegations “that the search was
unnecessarily prolonged or repeated,” the cross-gender search
was justified in light of the exigent circumstances. Id.
As in Holland, exigent circumstances justified the crossgender search at issue here. Given the urgency in locating
and removing any illegal contraband—not least for the sake
of Plaintiff's safety—it was not unreasonable for DurbinFrench to perform the search herself. As she explains in
an affidavit, she and Dr. Madell “would alternate patients
as they presented to the [Emergency Department] after 11
pm.” (Durbin-French Aff. ¶ 12.) Thus, the fact that DurbinFrench was assigned to Plaintiff indicates that Dr. Madell
—a male nurse—was occupied with another patient. Given
the pressing law-enforcement interest in locating any illegal
contraband, as well as the medical interest in protecting
Plaintiff's health and safety, it was reasonable for DurbinFrench to proceed with the search herself. Accordingly,
Medical Defendants’ Motion is granted with respect to Count
17.

8. Sexual Harassment and Sexual Abuse Claims
Based on Events at St. Luke's (Counts 12 and 13)
*56 In Count 12, Plaintiff asserts a claim for “sexual
harassment” based on the manual body cavity search at St.
Luke's. (See SAC ¶ 129.) Insofar as this claim is predicated
on Defendants’ “repeated orders to submit to [an] unlawful
body cavity search,” (id.), the Court has already established
that the search was lawful, see supra Section II.B.7.a–b,
and that any orders to comply were not unreasonable under
the circumstances, see supra note 36. To the extent this
claim is based on Canario and Saintiche's “using physical
force,” (SAC ¶ 129), the Court has already considered—and
rejected—that theory of liability, see supra Section II.B.7.c.i.
Finally, to the extent this claim is based on Durbin-French's
“touching and grabbing [Plaintiff's] buttocks and penetrating
[his] body cavity,” (SAC ¶ 129), the claim is duplicative of the
unreasonable search claim in Count 15 and must therefore be
dismissed for the same reasons already discussed in Section
II.B.4 supra.
In Count 13, Plaintiff asserts a claim for “sexual abuse,” also
based on the manual body cavity search at St. Luke's. (See
SAC ¶ 130.) Insofar as this claim is predicated on Defendants’
“using physical force to secure [Plaintiff's] body to [the]
bed,” (id.), the Court already rejected that argument, see supra
Section II.B.7.c.i. To the extent this claim is predicated on
Durbin-French's “touching and grabbing [Plaintiff's] buttocks
and penetrating [his] body cavity,” (SAC ¶ 130), the claim is
duplicative of the unreasonable search claim in Count 15 and,
like Count 12, must be dismissed for the same reasons already
discussed in Section II.B.4 supra.
Accordingly, Police Defendants’ Motion and Medical
Defendants’ Motion are both granted with respect to Counts
12 and 13.

9. Deliberate Indifference Claims Based
on Events at St. Luke's (Counts 18 and 19)
Plaintiff brings a deliberate indifference claim in Count 18
and a supervisory liability claim in Count 19, both of which
stem from his medical treatment at St. Luke's. (See SAC
¶¶ 135–36.) In his Opposition to Defendants’ respective
summary judgment motions, Plaintiff also purports to raise
new state-law claims for medical malpractice. (See Pl.’s
Opp'n 37.) The Court will not consider these putative claims

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for the same reasons discussed in Section II.B.5.a supra.
Plaintiff may not constructively amend his pleadings on
summary judgment in order to assert claims that appear
nowhere in the Second Amended Complaint.

a. Deliberate Indifference (Count 18)
Although the deliberate indifference claim in Count 18
is brought against Defendant Lemos, (see SAC ¶ 135),
as with Counts 12 through 17, Plaintiff has named the
wrong defendant. To the extent Count 18 is predicated
on Medical Defendants’ “failure to x-ray [Plaintiff's] back
and neck, examine [his] body cavity for infection, ... [and]
prescribe pain medications,” as well as their “ignoring [his]
complaints,” (id.; see also id. ¶¶ 86, 116), these alleged
failures all pertain to Plaintiff's first visit to St. Luke's. (See
generally ER Records 2–21.) According to Plaintiff's medical
records, the Medical Defendant who treated Plaintiff during
this first visit was Dr. Madell. (See id. at 3–4, 14, 16–21.)
But even if Plaintiff had named the proper defendant, his
deliberate indifference claim must be dismissed insofar as
it is based on his first visit to St. Luke's. In contrast to
Plaintiff's second visit to the hospital, when police and
medical personnel executed a search warrant, the sole purpose
of the first visit was to provide Plaintiff with appropriate
medical care after the police had used a taser and pepper
spray to subdue him at the police station. But as discussed in
Section II.B.7.c.ii supra, “courts have held that the provision
of medical care by a private hospital to an individual in police
custody on the same terms as the hospital would provide to the
public at large does not satisfy the state action test.” Hollman,
2011 WL 280927, at *5. Here, then, “[t]he fact that [Plaintiff]
was brought to the hospital from police custody and was
released from the hospital into police custody is insufficient
to transform this private hospital and its staff into state actors
for [§] 1983 purposes.” Morse, 2001 WL 968996, at *8. Thus,
to the extent Plaintiff has plausible claims based on perceived
medical failures during the first visit, those claims are not
cognizable under § 1983, for Dr. Madell and his colleagues
were not functioning as state actors.
*57 To the extent that Count 18 is predicated on DurbinFrench's failure to “use lubricant and anesthesia” during the
manual body cavity search, (see SAC ¶ 135), that claim
is duplicative of Plaintiff's unreasonable search claim in
Count 15. Even if this allegation were considered on its
own as a deliberate indifference claim, Plaintiff has failed to

show either that (1) the “deprivation of medical care [was]
sufficiently serious,” or that (2) the defendant “acted or failed
to act with a sufficiently culpable state of mind.” Dumel v.
Westchester County, No. 19-CV-2161, 2021 WL 738365, at
*8 (S.D.N.Y. Feb. 25, 2021) (alteration in original) (citation,
alterations, and quotation marks omitted). For example, even
accepting Plaintiff's allegation that Durbin-French failed to
use lubricant when conducting the manual body cavity search,
Plaintiff has failed to establish that such a failure rises above
the level of mere negligence. See id. at *9 (explaining that the
second element of a deliberate indifference claim under the
Fourteenth Amendment “requires proof of a mens rea greater
than mere negligence” (citation omitted)). Thus, to the extent
Count 18 is based on the manual body cavity search, it cannot
survive summary judgment.
For these reasons, Medical Defendants’ Motion is granted
with respect to Count 18.

b. Supervisory Liability Based on X-Ray
and Removal of Taser Barbs (Count 19)
In Count 19, Plaintiff brings a deliberate indifference claim
against Dr. Madell and Durbin-French based on their alleged
“failure to supervise Lemos in conducting [the] body cavity /
x-ray examinations and [their] failure to supervise Lemos
when treating / removing taser barbs out of [Plaintiff's] back,”
which, according to Plaintiff, “resulted in serious physical
and emotional injuries and the deprivation of [his] Fourth and
Fourteenth Amendment [rights].” (SAC ¶ 136.) As discussed,
Lemos neither removed the taser barbs nor performed the
manual body cavity search or x-ray examination. But as with
Count 18, even if Plaintiff had named the proper defendants,
this claim would still fail, for several reasons.
To the extent Count 19 is predicated on Dr. Madell's removal
of the taser barbs, because he was providing ordinary
medical treatment “to an individual in police custody on
the same terms as the hospital would provide to the public
at large,” Hollman, 2011 WL 280927, at *5, neither he
nor his supervisors were functioning as state actors, thus
precluding § 1983 liability. Insofar as Count 19 is predicated
on the manual body cavity search and x-ray examination,
Plaintiff's claim runs into a different dead-end. As explained
in Section II.B.5.b supra, after Tangreti, a plaintiff must
establish that a defendant committed a constitutional tort
through the defendant's “own conduct, not by reason of
[his] supervision of others who committed the violation.”

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Tangreti, 983 F.3d at 619. Here, that means Plaintiff must
show that Durbin-French's supervisor “recklessly fail[ed] to
act with reasonable care to mitigate the risk that the condition
posed to the pretrial detainee even though the defendantofficial knew, or should have known, that the condition posed
an excessive risk to health or safety.” Maldonado, 460 F.
Supp. 3d at 395 (quoting Darnell, 849 F.3d at 35). Apart
from his own conclusory assertions, Plaintiff has made no
showing that Durbin-French's cavity search (or the x-ray)
constituted an excessive risk to his health or safety, let alone
that Durbin-French's supervisor knew about or should have
known about that risk and failed to take appropriate action.
Accordingly, the deliberate indifference claim in Count 19
cannot survive summary judgment and must be dismissed.
Medical Defendants’ Motion is therefore granted in this
regard.

10. Conspiracy Claims (Counts 14 and 20)
In Count 14, Plaintiff alleges that Canario, Saintiche, and
Lemos conspired to deprive him of his “rights to be free from
unreasonable search and seizures.” (SAC ¶ 131.) This claim
stems from Plaintiff's baseless theory that there was only one
visit to the hospital. He has alleged that the search warrant
signed by Judge Williams was at some point

*58 brought back to the hospital
by Canario and Saintiche so that
they could conspire with the medical
staff ... to make them cover-up the
fact that [he] was illegally body cavity
searched and x-rayed earlier[,] and to
record th[o]se events as if they [had]
happened ... almost ... [four] hours
later .... And they all came to an
agreement that between 6:47 P.M. and
7:39 P.M.[,] ... [Plaintiff] was only
treated for [his] back and eyes.

(Id. ¶ 111.) In Count 20, Plaintiff alleges that Pitt, Canario,
Saintiche, Lemos, and Durbin-French all conspired to deprive
Plaintiff of “medical care,” and all “participated in falsifying
medical records and police documents stating that [Plaintiff]
was re-admitted at the hospital, [and] that [he] made no
complaints concerning pain and injuries”—all so that the co-

conspirators could “cover-up their illegal activities.” (Id. ¶
137.)
“To prove a § 1983 conspiracy, a plaintiff must show: (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.” Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); see also Corsini
v. Brodsky, 731 F. App'x 15, 19 (2d Cir. 2018) (summary
order) (same) (citing Ciambriello, 292 F.3d at 324–25).
“[C]onspiracies are by their very nature secretive operations,
and may have to be proven by circumstantial, rather than
direct, evidence.” Pangburn, 200 F.3d at 72 (quotation marks
omitted). To state a conspiracy claim, Plaintiff “must provide
some factual basis supporting a meeting of the minds.” Webb
v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (quotation marks
omitted). “To survive a motion for summary judgment, [the]
plaintiff's evidence of a [§] 1983 conspiracy must, at least,
reasonably lead to the inference that the defendants positively
or tacitly came to a mutual understanding to try to accomplish
a common and unlawful plan.” House v. City of New York,
No. 18-CV-6693, 2020 WL 6891830, at *20 (S.D.N.Y. Nov.
24, 2020) (quoting Stein v. Janos, 269 F. Supp. 2d 256, 261–
62 (S.D.N.Y. 2003)); see also Warren v. Fischl, 33 F. Supp.
2d 171, 177 (E.D.N.Y. 1999) (observing that a plaintiff must
“make an effort to provide some details of time and place and
the alleged effects of the conspiracy ... [including] facts to
demonstrate that the defendants entered into an agreement,
express or tacit, to achieve the unlawful end” (citations and
quotation marks omitted)).
Unsurprisingly, Plaintiff has produced no evidence to
substantiate his fanciful tale that police and medical personnel
orchestrated an elaborate scheme to fabricate and falsify
records. Although his handwritten, single-spaced, 46-page
Opposition brief is filled with conclusory allegations that
such a conspiracy occurred, he offers only one remotely
substantive argument in support. (See Pl.’s Opp'n 46.)
Specifically, he argues that a timestamp in the upper lefthand corner of his medical records shows that the records can
be tampered with. (Id.) The medical records are constructed
such that each page contains a banner at the top of the page
with Plaintiff's name, age, sex, account number, and unit
number. (See ER Records 4–11, 23–28.) Below the banner, the
records contain a detailed digital trail of Plaintiff's respective
visits, including his admission and discharge times, when he
was seen (and by whom), and what treatment he received,
among other data. (See id.) Above the banner, the medical

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records contain three additional fields—(1) “Run Date”; (2)
“Run Time”; and (3) “Run User.” (See id.) The data in these
fields are identical on each page of the records pertaining to a
particular visit. Thus, the records pertaining to Plaintiff's first
visit all indicate a “Run Date” of May 10, 2015, a “Run Time”
of “0102,” and a “Run User” named “N. KDC.” (See id. at 4–
11.) The records pertaining to Plaintiff's second visit indicate
a “Run Date” of May 12, 2015, a “Run Time” of “0022,”
and a “Run User” named “N. CCD.” (See id. at 23–28.) In
her supporting affidavit, the St. Luke's official charged with
overseeing the hospital's electronic medical records system
explains that, “[t]o make an entry in the [electronic medical
record system], a staff member must log-in and use their
[sic] own secure password. Anyone accessing the [system]
or making an entry in the [system] automatically generates a
date/time entry.” (Berberich Aff. ¶ 8.) She goes on to explain
that the date and time entries on Plaintiff's medical records
—i.e., the information below the banner—corresponds with
Defendants’ version of events, (see id. ¶¶ 9–12), which is true.
But Plaintiff argues that the data fields above the banner show
that “once [a] user logs in[to] the [electronic medical record
system], any date/time, notes, names[,] and signatures can be
edited/entered into the audit trail.” (Pl.’s Opp'n 46.)
*59 This argument has several problems. First, so far as
Plaintiff purports to dispute Berberich's testimony regarding
the functionality of the electronic medical records system,
he has no personal knowledge of how the system actually
operates. See Myers v. County of Nassau, 825 F. Supp. 2d 359,
366 (E.D.N.Y. 2011) (observing that affidavits or deposition
testimony offered to defeat summary judgment “must be
based upon the personal knowledge of the witness, ... and
the speaker must be shown competent to testify [to facts
admissible in evidence]”). Relatedly, Plaintiff's argument—
that the data fields above the banner show that a user can
enter the system after the fact to cook the books—is pure
speculation. Moreover, even if Plaintiff's theory had some
empirical grounding, it would mean that Defendants or some
accomplice modified the hospital records for the first visit on
May 10, 2015, and then waited another two days to falsify
the records for the second visit. That is a terribly odd way to
go about covering one's tracks. The more natural inference,
of course, is that the data fields above the banner pertain
to routine administrative processing, and do not constitute
indicia of some sinister plot.
But the Court need not trouble itself with this issue further,
for even if the records did betray some sign of tampering,
that alone provides no evidence of an agreement “between a

state actor and a private entity” to “act in concert to inflict
an unconstitutional injury.” Pangburn, 200 F.3d at 72. If a
summary judgment motion “is supported by documentary
evidence and sworn affidavits and ‘demonstrates the absence
of a genuine issue of material fact,’ the non-moving party
must do more than vaguely assert the existence of some
unspecified disputed material facts or ‘rely on conclusory
allegations or unsubstantiated speculation.’ ” Estate of
Ferrara v. United Pub. Serv. Emps. Union, No. 18-CV-527,
2020 WL 7714542, at *5 (D. Conn. Dec. 29, 2020) (quoting
Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44
(2d Cir. 2015)) (granting summary judgment for defendants
where plaintiff had presented only “diffuse and expansive
allegations” of conspiracy, and where the plaintiff's testimony
“simply underscore[d] the [u]nion's alleged antipathy towards
him,” but did not establish an agreement between the union
and police to act “in concert” (citations omitted)). Because
Plaintiff has failed to raise a triable issue of fact regarding
either of his two conspiracy claims, summary judgment is
appropriate. See Hardy v. Baird, No. 13-CV-7402, 2016 WL
2745852, at *13–14 (S.D.N.Y. May 10, 2016) (dismissing
§ 1983 conspiracy claim on summary judgment where the
plaintiff failed to provide any evidence that the defendants
had reached an agreement to fabricate evidence to secure
a search warrant); Cuellar v. Love, No. 11-CV-3632, 2014
WL 1486458, at *9 (S.D.N.Y. Apr. 11, 2014) (dismissing
§ 1983 conspiracy claim on summary judgment where the
plaintiff had failed to “cite any evidence demonstrating an
agreement between [the defendants] to use excessive force”);
Phoenix v. Reddish, 175 F. Supp. 2d 215, 218–19 (D. Conn.
2001) (dismissing § 1983 conspiracy claim on summary
judgment where the plaintiff had provided no evidence that
the defendants “had an understanding, either tacit or explicit,
to act in concert,” and had only offered “rank speculation and
conjecture”). Accordingly, Police Defendants and Medical
Defendants’ Motions are both granted with respect to Counts
14 and 20, which are dismissed.

III. Conclusion
For the reasons stated above, Police Defendants’ Motion is
granted in part and denied in Part. The Motion is granted with
respect to Counts 1, 3–4, 7–8, 12–16, and 20. With respect to
Count Two, the Motion is granted as to Plaintiff's Handcuff
Claim and Assault Claim, but denied as to Plaintiff's Search
Claim. The Motion is denied with respect to Counts Five and
10.

© 2023 Thomson Reuters. No claim to original U.S. Government Works.

57

Falls v. (Police Officer) Detective Michael Pitt, Slip Copy (2021)
2021 WL 1164185

Medical Defendants’ Motion is granted in part and denied in
part. The Motion is granted with respect to Counts 12–14 and
16–20. The Motion is denied with respect to Count 15.
Plaintiff's Motion is granted in part and denied in part. With
respect to Count Six, the Motion is granted as to the visual
body cavity search and denied as to the alleged manual body
cavity search. The Motion is denied as to Counts One, Seven,
and 10.
*60 Accordingly, Counts 1, 3–4, 7–8, 12–14, and 16–20
are dismissed. The Handcuff Claim and Assault Claim within
End of Document

Count Two are also dismissed. Count 15 is dismissed as to
Police Defendants only.
The Clerk of Court is respectfully directed to terminate the
pending Motions, (Dkt. Nos. 159, 173), and mail a copy of
this Opinion & Order to Plaintiff.
SO ORDERED.
All Citations
Slip Copy, 2021 WL 1164185
© 2023 Thomson Reuters. No claim to original U.S. Government Works.

© 2023 Thomson Reuters. No claim to original U.S. Government Works.

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