Vasquez v. Rockland County

Filing 104

ORDER: Based upon the foregoing, Plaintiff's application to file a Fourth Amended Complaint is DENIED. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in fo rma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is respectfully directed to mail a copy of this Order to Plaintiff. SO ORDERED. (Signed by Judge Philip M. Halpern on 10/30/2020) (ks) Transmission to Docket Assistant Clerk for processing.

Case 7:16-cv-00895-PMH Document 104 Filed 10/30/20 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KIM VASQUEZ,
Plaintiff,
-against-

ORDER
16-CV-00895 (PMH)

SHAMEED YADALI, et al.,
Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff Kim Vasquez (“Plaintiff”), proceeding pro se and in forma pauperis, brings this
action for violation of his constitutional rights under 42 U.S.C. § 1983 against three known and
two unknown (“John Doe”) New York State Troopers. Plaintiff filed his Complaint on February
4, 2016 (Doc. 2), his Amended Complaint on November 22, 2016 (Doc. 10), his Second Amended
Complaint on March 29, 2017 (Doc. 21), and his Third Amended Complaint (“TAC”)—the
operative complaint—on January 8, 2019 (Doc. 56, “TAC”). On March 5, 2020, Judge Nelson S.
Román issued an Opinion & Order granting in part and denying in part a motion to dismiss the
TAC. (Doc. 75, “Op. & Ord.”). As a result of Judge Román’s thoughtful and well-reasoned
analysis, only Plaintiff’s § 1983 claim against New York State Troopers Shameed Yadali and
Joseph Merla (collectively, “Defendants”) for false arrest survived dismissal.1 (Id. at 24). This case
was transferred to me approximately one month later, on April 3, 2020.
The Court held an initial pretrial conference by telephone on September 24, 2020; both
Defendants’ counsel and Plaintiff appeared. (See Sept. 24, 2020 Min. Entry). The Court entered a
Civil Case Discovery Plan and Scheduling Order later that same day. (Doc. 93). That scheduling

Judge Román advised explicitly that the Opinion & Order did “not address the sufficiency of any claims
asserted against the John Doe defendants . . . .” (Op. & Ord. at 1 n.1, 24).
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order advised that “[a]mended pleadings may not be filed . . . except with leave of the Court,” and
that “[a]ny motion to amend” the pleadings had to be filed on or before October 8, 2020. (Id. ¶ 3).
On October 6, 2020, Plaintiff made a timely request for leave to file what would be his Fourth
Amended Complaint. (Doc. 97, “App.”).2 On October 26, 2020, Defendants filed their opposition
to Plaintiff’s application. (Doc. 102).
For the reasons set forth below, Plaintiff’s application for leave to amend the TAC and file
a Fourth Amended Complaint is DENIED.
ANALYSIS
Where, as here, the application to amend is made outside the time for Plaintiff to do so as
a matter of course, he “may amend [his] pleading only with the opposing party’s written consent
or the court’s leave.” Fed. R. Civ. P. 15(a)(2). In such a scenario, “[t]he court should freely give
leave when justice so requires.” Id. On this point, the Second Circuit has instructed that “a pro se
plaintiff ‘should be afforded every reasonable opportunity to demonstrate that he has a valid
claim.’” Guerra v. Jones, 421 F. App’x 15, 17 (2d Cir. 2011) (quoting Matima v. Celli, 228 F.3d
68, 81 (2d Cir. 2000)). “However, ‘[w]here it appears that granting leave to amend is unlikely to
be productive,’” it need not be permitted. Mallek v. Allstate Indem. Co., No. 17-CV-5949, 2018
WL 3629596, at *2 (E.D.N.Y. July 31, 2018) (quoting Lucente v. Int’l Bus. Machs. Corp., 310
F.3d 243, 258 (2d Cir. 2002) (alteration in original)). Accordingly, “[l]eave to amend, though
liberally granted, may properly be denied for ‘undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment,
etc.’” Tapia v. Huaquechula Rest. Corp., No. 18-CV-10771, 2020 WL 3893314, at *2 (S.D.N.Y.

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For convenience, references to Plaintiff’s submission correspond to the pagination generated by ECF.

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July 10, 2020) (quoting Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008)). Deciding
such a motion falls within the discretion of the Court. Forman v. Davis, 371 U.S. 178, 182 (1962)
(“Of course, the grant or denial of an opportunity to amend is within the discretion of the District
Court . . . .”).
Plaintiff’s argument is two-fold. First, Plaintiff seeks “leave of the court to supplement his
pleading by including being wrongfully accused in violation of his Fourth Amendment right
pursuant to the United States Constitution.” (App. at 3). Second, Plaintiff insists that the TAC
contained additional claims that were not mentioned by the March 5, 2020 Opinion & Order and
have, therefore, proceeded into discovery. (Id. at 2-3). Specifically, Plaintiff argues that his claims
for “excessive bail, falsifying records (documents), wrongful (unlawful) imprisonment
(confinement), and wrongfully accused” were neither opposed nor dismissed and are “included”
in the action. 3 (Id. at 3). Plaintiff acknowledges that Judge Román’s decision “solely left this
plaintiff’s claim of false arrest after the defendant’s motion to dismiss.” (Id. 2).
Insofar as Plaintiff seeks leave to file a Fourth Amended Complaint, the request is denied
for at least two separate reasons. As a preliminary issue, the proposed filing would be Plaintiff’s
fifth attempt to cure pleading deficiencies in almost as many years. The repeated failure to cure
any deficiencies, alone, is a reason sufficient to deny Plaintiff’s request. See, e.g., Russell v. Aid to
Developmentally Disabled, Inc., 753 F. App’x 9, 15-16 (2d Cir. 2018) (“Because [the plaintiff],
when provided an opportunity, did not cure the deficiencies in this claim, the district court was not
required to give her another opportunity to cure deficiencies she had already failed to correct.”);
Dyson v. New York Health Care, Inc., 353 F. App’x 502, 503-04 (2d Cir. 2009) (affirming the

The Court notes that Plaintiff seeks both to add a claim that he was “wrongfully accused in violation of
his Fourth Amendment right” and recognition that the TAC included a claim for being “wrongfully
accused.” (See App. at 2-3).
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district court’s sua sponte dismissal where it “afforded [the plaintiff] three opportunities to file an
amended complaint . . . and, despite these, she did not plead any facts sufficient to show that she
was plausibly entitled to any relief”); Liang v. Home Reno Concepts LLC, No. 17-CV-3503, 2018
WL 1401801, at *1 (E.D.N.Y. Mar. 19, 2018) (granting leave to file a third amended complaint
but warning that the plaintiff would “not be permitted to file another amended complaint, having
already filed several complaints and multiple motions to amend, and had an opportunity to review
Defendants’ arguments in their motion on the pleadings”).
Moreover, Plaintiff offers no explanation regarding the content of the proposed
amendments, does not provide a copy of the proposed Fourth Amended Complaint, and does not
explain how the amendments would not be futile (i.e., would survive a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6)). (See generally App.). Without any information as to
the substance of the proposed amendments, the Court cannot evaluate the propriety of those
contemplated modifications. This is a second independent reason to deny the request. See Coleman
v. brokersXpress, LLC, 375 F. App’x 136, 137 (2d Cir. 2010) (noting that the plaintiff “made no
specific showing as to how he would cure the defects that persisted if given a second opportunity
to amend”); Odom v. Syracuse City Sch. Dist., No. 19-CV-835, 2020 WL 1689879, at *9
(N.D.N.Y. Apr. 7, 2020) (“A party’s failure to explain how re-pleading would cure defects can be
grounds for denying a motion to amend.”); Tyk v. Surat, No. 13-CV-1532, 2015 WL 13214925, at
*1 (E.D.N.Y. July 23, 2015) (“First of all . . . plaintiff has failed to provide a proposed Fourth
Amended Complaint. That is reason enough to deny the motion.” (collecting cases)); Reed v.
Hales, No. 05-CV-6497, 2006 WL 3207661, at *1 (W.D.N.Y. Nov. 3, 2006) (denying the
plaintiff’s request to file an amended complaint because the application was conclusory and

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offered no explanation as to how “the underlying facts or circumstances relied upon in seeking
leave to amend are a proper subject of relief”).
Separately, insofar as Plaintiff argues that four claims in the TAC were not addressed by
Judge Román—to the extent such claims are cognizable—the Court rejects that argument.4 Three
of the four “claims” are facts which Judge Román considered part and parcel of Plaintiff’s
surviving false arrest claim. As to “excessive bail,” Judge Román noted that Plaintiff claimed that
he was released from the Rockland County Correctional Facility “because the bail set was deemed
excessive.” (Op. & Ord. at 3).5 As to “falsifying records,” Judge Román observed that Plaintiff
alleged that Defendants “falsified records to procure Plaintiff’s arrest” and tried “to make it appear
as [if there was] probable cause” to make the arrest. (Id. at 3, 13 (alterations in original); see also
id. at 3 n.2 (“Plaintiff was also issued an appearance ticket for criminal possession of a controlled
substance in the seventh degree. Plaintiff maintains this was a false accusation created by the
officers.”)). Finally, as to being “wrongfully accused,” Judge Román concluded that the TAC
“plausibly disputes whether Yadali and Merla had probable cause to arrest [Plaintiff] by alleging
instances of false representations and accusations, while there is nothing on the face of the TAC
that supports an inference that probable cause existed.” (Id. at 13; see also id. at 2, 17 (noting
To the extent Plaintiff’s application may be construed as a motion for reconsideration, it would be denied
as untimely. See Local Civil Rule 6.3 (requiring that motions for reconsideration be filed within fourteen
days); see also Benson-Staebler v. City of New York, No. 17-CV-4519, 2020 WL 3256289, at *3 n.1
(E.D.N.Y. June 16, 2020) (recognizing that untimeliness under Local Civil Rule 6.3 was “an independent
basis” to deny plaintiff’s motion for reconsideration).
4

On this point, Plaintiff does not identify the individual or entity against whom his “excessive bail” claim
was or would be pressed. (See generally App.). Upon review of the TAC, Plaintiff alleged that he “was
ordered remanded in jail without bail by the Orangetown Court.” (TAC ¶ 17; see also id. ¶ 20). Even if the
Court were to assume that Plaintiff had named as a defendant the town justice of the Town of Orangetown
Justice Court who set bail, Plaintiff does not explain how such a claim would overcome the associated
question of judicial immunity. See, e.g., Bobrowsky v. Yonkers Courthouse, 777 F. Supp. 2d 692, 712
(S.D.N.Y. 2011) (“Ordinarily, it is judges who set bail, and judges enjoy absolute immunity when they do
so.” (quoting Tucker v. Outwater, 118 F.3d 930, 933 (2d Cir. 1997)).
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Plaintiff’s allegations that Defendants were “desperate to accuse” Plaintiff of “something.”)).
Upon review, all of these allegations speak to aspects of Plaintiff’s false arrest claim (i.e.,
Defendants’ intent to confine Plaintiff and the absence of Plaintiff’s consent to confinement).
As to Plaintiff’s fourth “claim,” which he described as “wrongful (unlawful) imprisonment
(confinement)” (App. at 3), his false arrest claim is the same as one for false imprisonment. “In
analyzing a claim for false arrest under § 1983, federal courts look to the law of the state in which
the arrest occurred,” Cooper v. City of New York, No. 17-CV-1517, 2019 WL 3642996, at *5
(E.D.N.Y. Aug. 5, 2019) (internal quotation marks omitted), and “New York draws no distinction
between false arrest and false imprisonment.” Aghoghoubia v. Noel, No. 17-CV-1927, 2020 WL
2489727, at *3 n.4 (E.D.N.Y. May 13, 2020) (citing Posr v. Doherty, 944 F.2d 91, 96 (2d Cir.
1991)); see also Kilburn v. Vill. of Saranac Lake, 413 F. App’x 362, 363 (2d Cir. 2011) (explaining
that, under New York law, claims for false arrest and false imprisonment are “identical”); Cintron
v. Shield, No. 18-CV-1619, 2019 WL 4194429, at *2 n.2 (S.D.N.Y. Sept. 3, 2019) (same).
CONCLUSION
Based upon the foregoing, Plaintiff’s application to file a Fourth Amended Complaint is
DENIED. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is
respectfully directed to mail a copy of this Order to Plaintiff.
SO ORDERED:
Dated:

New York, New York
October 30, 2020
PHILIP M. HALPERN
United States District Judge

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