Felix v. New York State Department of Corrections and Community Supervision et al

Filing 39

OPINION & ORDER re: 27 MOTION to Dismiss Second Amended Complaint filed by Mario Davila, Steve Rosenbaum, Jill Leonard-Horne, New York State Department of Corrections and Community Supervision, John Cieslak. For the reasons s tated above, Defendants' motion, (Doc. 27) is GRANTED. Causes of Action One, Two, and Three are dismissed for failure to state a claim, and Causes of Action Four, Five, and Six are dismissed as withdrawn. The Clerk of Court is respectfully directed to terminate the pending motion, (Doc. 27), effect the amendment described in footnote one above, and close the case. SO ORDERED. (Signed by Judge Cathy Seibel on 7/23/2018) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------x
DONALD FELIX,
Plaintiff,
- against NEW YORK STATE DEPARTMENT OF CORRECTIONS
and COMMUNITY SUPERVISION, JILL LEONARDHORNE (Area Supervisor), MARIO DAVILA (Senior
Parole Officer), STEVE ROSENBAUM (Parole Revocation
Specialist), JOHN CIESLAK (Parole Officer), John Doe 1
and John Doe 2,

OPINION & ORDER
No. 16-CV-7978 (CS)

Defendants.
----------------------------------------------------------------------x
Appearances:
Robert Rambadadt
The Rambadadt Law Office
New York, New York
Counsel for Plaintiff
Daphna Frankel
Assistant Attorney General
Office of the New York State Attorney General
New York, New York
Counsel for Defendants
Seibel, J.
Before me is the motion to dismiss of Defendants New York State Department of
Corrections and Community Supervision (“DOCCS”), Jill-Lenard Horne, Mario Davila, Steve
Rosenblum, and John Cieslak (collectively, “Defendants”). 1 (Doc. 27.) For the following
reasons, the motion is GRANTED.

1

“Lenard-Horne” and “Rosenblum” are misspelled in the case caption. (Doc. 28 (“Ds’ Mem.) at 1 n.1.) The Clerk
of Court is directed to amend the caption accordingly.

1

I.

BACKGROUND
I accept as true the facts, but not the conclusions, set forth in Plaintiff’s Second Amended

Complaint, (Doc. 24 (“SAC”)).
A.

The Parties

Plaintiff Donald Felix, a parolee, is a resident of Fishkill, New York. (SAC ¶¶ 7, 17.)
DOCCS runs the New York State Department of Parole (“NYSDOP”), which oversees prisoners
released before the completion of their sentences. (Id. ¶¶ 8, 9.) The individual Defendants were
all employed by DOCCS and assigned to the NYSDOP office in Dutchess County, New York:
Lenard-Horne as the area supervisor; Davila as a senior parole officer; Rosenblum as a parole
revocation specialist; and Cieslak as a parole officer. (Id. ¶¶ 11-14.)
B.

Plaintiff’s Arrest for Parole Violations

On or about May 28, 2014, Cieslak ordered Felix to report to the Dutchess County
NYSDOP office. (Id. ¶ 17.) Upon his arrival, Plaintiff was informed that there had been
allegations of domestic violence brought against him regarding his wife, Trisha Felix. (Id. ¶¶ 18,
25.) Cieslak instructed Plaintiff to sign special parole conditions, which included a provision
forbidding him from cohabitating with Ms. Felix. (Id. ¶ 18.) Plaintiff did not believe that he had
to sign the document and made legal and procedural arguments as to why. (Id. ¶ 19.) Upon his
refusal to sign, Lenard-Horne and Davila were called over to confer on the matter. (Id. ¶ 20.)
Lenard-Horne informed Plaintiff that he did not have to sign the document containing the
special parole conditions, but would still have to abide by the conditions. (Id.) Plaintiff
understood that he would have to abide by those conditions, yet continued to question why he
had to sign the document itself. (Id. ¶ 21.) Cieslak, Lenard-Horne, and Davila then left the room

2

to discuss the matter. (Id. ¶ 22.) Shortly thereafter, Cieslak, in the presence of Lenard-Horne
and Davila, and with their agreement, arrested Plaintiff. (Id. ¶ 23.)
A notice of violation was issued on May 30, 2014. (SAC Ex. A (“Tr. of Preliminary
Hearing”) at 4:10; see Doc. 29 Ex. A (“Parole Revocation Decision Notice”) at 3.) Plaintiff was
charged with four violations. (Tr. of Preliminary Hearing at 4:11-13, 6:1-3; Parole Revocation
Decision Notice at 3.) The first three charges alleged a violation of condition of release #8
stemming from Plaintiff slapping Ms. Felix in the face with a pair of jeans and placing his hands
around her neck: (1) threatening Ms. Felix’s safety or well-being; (2) placing her in fear of
imminent serious physical injury; and (3) causing injury to her. (Parole Revocation Decision
Notice at 3-4.) The fourth charge alleged that Plaintiff, by refusing to sign the special parole
conditions, did not comply with the instructions of his parole officer. (Id. at 4.)
C.

Preliminary Revocation Hearing

DOCCS held a preliminary revocation hearing on June 10, 2014. (Tr. of Preliminary
Hearing at 1:12; 53:13.) Plaintiff was represented by counsel. (Id. at 1:21.)
Cieslak presented the State’s case. (Id. at 6:1-5.) He explained that he investigated the
allegations of domestic violence by reviewing the underlying police report, and by interviewing
both the police officer that spoke with Ms. Felix at the police station and Ms. Felix. (Id. at 8:5-6,
17:18-21:11.) The police report described what Ms. Felix told the police officer: she and
Plaintiff “got into [an] argument” and “[h]e hit her with a pair of her pants on/around [her]
face/head [and] then pushed her onto [a] bed and put [his] hand around her neck but did not use
force.” (SAC Ex. C at 1.) The report went on to mention that Ms. Felix refused to cooperate and
that she left before the paperwork was complete. (Id. at 1-2.) According to Cieslak, the police
officer said Ms. Felix was “dishevelled [sic], . . . anxious, [and] frightened” at the time. (Tr. of

3

Preliminary Hearing at 18:9-10.) Cieslak also testified that Ms. Felix “told [him that she and
Plaintiff] had an argument and [Plaintiff] got mad, and he slapped her with a pair of jeans.” (Id.
at 19:15-17; see id. at 21:8-11 (Cieslak recalling that Ms. Felix said that she “got hit about
twenty times with the pair of jeans”).)
Ms. Felix testified at the preliminary hearing. (Id. at 33:23-44:8.) She testified that she
had told the police that Plaintiff “slapped [her] with a pair of pants” and that he “had thrown
[her] down on the bed and put his hands around [her] neck,” but she refused to sign a statement
saying the same. (Id. at 41:8-19.) She further testified that when Cieslak asked her what she had
told the police, she repeated the same story. (Id. at 36:12-20.) But at the hearing, she recanted,
claiming what she told the police was “not what occurred.” (Id. at 41:20-22; see id. at 34:9-35:3;
SAC ¶ 25.) She explained that she was thinking about moving out after an argument with
Plaintiff, but when she asked the police to escort her to her house to get her things, the officer
purportedly “made [her] feel like [she] had to make it bigger than” what actually happened, so
she “told [the officer] that [Plaintiff] had hit [her] and put his hands around [her] neck.” (Tr. of
Preliminary Hearing at 34:9-35:9.) She did not explain why she wanted a police escort to return
home.
Cieslak also said that after his investigation, he met “with [his] supervisor, [and they]
decided to amend [Plaintiff’s] [s]pecial [c]onditions of [r]elease.” (Id. at 8:7-8.) Cieslak gave
Plaintiff the form with the special conditions and told Plaintiff that he needed to sign the form,
but he refused. (Id. at 8:10-16; see SAC Ex. D.) The following appeared above the line where
Cieslak wanted Plaintiff to sign: “I hereby certify that I have read and understand the above
Special Conditions of my release and that I have received a copy of these Special Conditions.”
(SAC Ex. D.)

4

Plaintiff testified that he did not refuse to sign the form but rather he “was trying to get
clarification to understand what [he] was signing.” (Tr. of Preliminary Hearing at 31:2-4; see id.
at 27:11-28:4.) 2 He denied the domestic violence allegations and he claimed that he did not
understand how he could be subject to a condition of release based on no evidence. (Id. at 29:13.) Plaintiff also testified that Lenard-Horne and Davila told him that he did not need to sign the
form. (Id. at 29:4-7.)
Finally, Davila testified that Plaintiff had argued that he did not have to sign the form
because it was a special condition of release and he was already released. (Id. at 46:9-15.) In
response, Davila explained to Plaintiff that he was released to parole, which meant that his parole
officer may impose other special conditions. (Id. at 47:2-7.) He further testified that after
Plaintiff refused to sign, Lenard-Horne said that Plaintiff did not have to sign but the conditions
would still be enforced. (Id. at 47:8-16, 48:11-15.)
The hearing officer concluded that there was probable cause as to the first charge based
on Ms. Felix’s statement to the police department, and as to the fourth charge based on the
“credible testimony” of Cieslak and Davila regarding Plaintiff’s refusal to sign the special
conditions. (Id. at 51:17-52:1.) Accordingly, he directed that Plaintiff would be held until a final
revocation hearing. (Id. at 52:2-3.) He also said that he would produce a written decision. (Id.
at 52:4-6.) 3
D.

Final Revocation Hearing

DOCCS held a final revocation hearing on August 7, 2014 before an administrative law
judge (“ALJ”). (SAC ¶ 26; id. Ex. B (“Tr. of Revocation Hearing”) at 1:13; 100:13.)

2

Plaintiff admits in the SAC that he refused to sign. (SAC ¶ 20.)

3
The record does not contain that written decision, but presumably the hearing officer found probable cause as to all
four charges, given that the final hearing addressed all four.

5

Rosenblum presented the State’s case; Plaintiff was represented by counsel. (Tr. of Revocation
Hearing at 1:16-17, 1:21.) Ms. Felix testified that she went to the police because she wanted
emotional support and that she did not provide the police with a signed, written statement
because she had lied to them. (Id. at 20:14-21:23.) Cieslak testified, describing his interview
with Ms. Felix, (id. at 31:12-34:7), 4 and the moments leading up to Plaintiff’s arrest, (id. at
56:22-65:15).
According to Cieslak, after he initially instructed Plaintiff that he must sign the special
conditions or else he would “certainly go to jail,” (id. at 57:6-9), Lenard-Horne told Plaintiff that
he did not need to sign the document, (id. at 55:4-13). Cieslak then told Plaintiff to “[f]orget
what she said[:] . . . sign this document right now . . . [or] you are going to jail.” (Id. at 63:1014.) Plaintiff replied, “But she said . . . ,” before Cieslak interrupted him and said, “Don’t worry
about what she said. I’m telling you that she made a mistake, and that you need to sign the
document. . . . If you don’t you are going to jail, believe me.” (Id. at 63:15-19.) Afterwards,
Cieslak met privately with Lenard-Horne and Davila, and he informed them that he directed
Plaintiff to sign the form. (Id. at 61:20-62:12.) Then, Lenard-Horne and Davila conferenced and
instructed Cieslak to arrest Plaintiff. (Id. at 64:12-21.)
Plaintiff also testified that after he voiced his objections to Cieslak, Cieslak went to get
Lenard-Horne. (Id. at 92:14-16.) Lenard-Horne then told Plaintiff that he did not have to sign
the document. (Id. at 94:8-14.) According to Plaintiff, he would have signed the document if
she had told him otherwise. (Id.)

4

Cieslak testified that Ms. Felix told him that Plaintiff hit her with a pair of pants, grabbed her, threw her down, and
put his hands around her neck, and told her that if wanted to kill her, he would kill her any time he wanted to. (Id. at
31:25-32:10.) He further testified that when he pressed Ms. Felix about the lack of visible marks, she replied that
she “ha[d] a mark . . . on [her] cheek” and that she had “very good makeup, and that’s how [she] was able to go to”
work. (Id. at 31:14-20.)

6

The ALJ concluded that Plaintiff had committed no parole violations. (SAC ¶ 28; Parole
Revocation Decision Notice at 4.) The ALJ noted, among other things, that he did not find
credible Ms. Felix’s “explanations for why she initially reported falsely to the police,” and there
was no physical evidence nor a signed statement from Ms. Felix affirming the allegations.
(Parole Revocation Decision Notice at 3.) The ALJ also observed that “DOCCS acted
reasonably under the[] . . . circumstances in concluding that at least for the time being, [Plaintiff]
should not have been allowed to live with Ms. Felix.” (Id.) As to the fourth charge, the ALJ
found that the “most authoritative, expressed judgment of DOCCS . . . seems to have been that it
was not important to [Plaintiff’s] supervision that he sign the special condition.” (Id. at 4.) In
other words, Lenard-Horne’s statement that Plaintiff did not have to sign the special conditions
“functionally overr[ode]” Cieslak’s direction “so as to preclude a violation.” (Id.)
On August 29, 2014, DOCCS imposed additional conditions of release, one of which
barred Plaintiff from residing with Ms. Felix without the prior written permission of his parole
officer. (SAC ¶ 29; id. Ex. E at 1.)
E.

Procedural History

Plaintiff filed his original complaint on October 12, 2016. (Doc. 1.) In a letter dated
October 10, 2017, Defendants requested a pre-motion conference on their proposed motion to
dismiss. (Doc. 13.) Plaintiff responded with a letter of his own, (Doc. 15), and the Court held
the pre-motion conference on November 6, 2017, (Minute Entry dated Nov. 6, 2017). With
leave, Plaintiff filed a First Amended Complaint. (Doc. 17.) After Defendants submitted
another pre-motion letter, (Doc. 19), I allowed Plaintiff to submit the SAC, (Doc. 22), which he
did on December 29, 2017, (Doc. 24). The SAC advances claims for false arrest, excessive
force, and malicious prosecution under the Fourth Amendment; cruel and unusual punishment

7

under the Eighth Amendment; and Monell liability. (SAC ¶¶ 43-87.) Defendants moved to
dismiss the SAC on February 1, 2018, (Doc. 27), Plaintiff opposed on March 30, 2018, (Doc. 34
(“P’s Opp.”)), and Defendants replied on May 3, 2018, (Doc. 37).
II.

LEGAL STANDARD
A.

Federal Rule of Civil Procedure 12(b)(1)

“A federal court has subject matter jurisdiction over a cause of action only when it ‘has
authority to adjudicate the cause’ pressed in the complaint.” Arar v. Ashcroft, 532 F.3d 157, 168
(2d Cir. 2008) (quoting Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 425
(2007)), rev’d on other grounds, 585 F.3d 559 (2d Cir. 2009) (en banc). “Determining the
existence of subject matter jurisdiction is a threshold inquiry, and a claim is ‘properly dismissed
for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.’” Id. (citation omitted) (quoting Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000)). “When jurisdiction is challenged, the plaintiff
bears the burden of showing by a preponderance of the evidence that subject matter jurisdiction
exists, and the district court may examine evidence outside of the pleadings to make this
determination.” Id. (citations and internal quotation marks omitted). “The court must take all
facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff, but
jurisdiction must be shown affirmatively, and that showing is not made by drawing from the
pleadings inferences favorable to the party asserting it.” Morrison v. Nat’l Austl. Bank Ltd., 547
F.3d 167, 170 (2d Cir. 2008) (alteration omitted), aff’d on other grounds, 561 U.S. 247 (2010).
B.

Federal Rule of Civil Procedure 12(b)(6)

“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

8

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks
omitted). While Federal Rule of Civil Procedure 8 “marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.
In considering whether a complaint states a claim upon which relief can be granted, the
court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth,” and then determines whether the remaining well-pleaded
factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679.
Deciding 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.” Id.
“[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 ‘shown’ – ‘that the pleader is entitled to
relief.’” Id. (alteration omitted) (quoting Fed. R. Civ. P. 8(a)(2)). 5

5

Defendants also move to dismiss all of Plaintiff’s claims because service of process was not timely, which is a
ground for dismissal under Federal Rule of Civil Procedure 12(b)(5). (Ds’ Mem. at 22.) Plaintiff did not present
any opposition to that portion of the motion. The excuses he presented to the Court in response to an order to show
cause in all likelihood do not amount to good cause for his failure to timely effect service. (See Docs. 4-5.) But
because the Court grants Defendants’ motion to dismiss under Rules 12(b)(1) and 12(b)(6), it is not necessary to
reach the service issue. See, e.g., EZ Tag Corp. v. Casio Am., Inc., 861 F. Supp. 2d 181, 182 n.1 (S.D.N.Y. 2012);
Khan v. State Bank of India, No. 01-CV-1305, 2001 WL 1463783, at *1 n.1 (S.D.N.Y. Nov. 15, 2001); Hussein v.
Waldorf Astoria Hotel, Rest. & Club Employees & Bartenders Local #6, No. 99-CV-1652, 2000 WL 16928, at *1
(S.D.N.Y. Jan. 11, 2000).

9

When deciding a motion to dismiss, a court is entitled to consider:
(1) facts alleged in the complaint and documents attached to it or incorporated in it
by reference, (2) documents “integral” to the complaint and relied upon in it, even
if not attached or incorporated by reference, (3) documents or information
contained in defendant’s motion papers if plaintiff has knowledge or possession of
the material and relied on it in framing the complaint . . . , and (5) facts of which
judicial notice may properly be taken under Rule 201 of the Federal Rules of
Evidence.
Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011) (internal
quotation marks omitted). To be incorporated by reference, the complaint must make “a clear,
definite and substantial reference to the documents.” DeLuca v. AccessIT Grp., Inc., 695 F.
Supp. 2d 54, 60 (S.D.N.Y. 2010) (internal quotation marks omitted). “A document is integral to
the complaint where the complaint relies heavily upon its terms and effect. Merely mentioning a
document in the complaint will not satisfy this standard; indeed, even offering limited
quotation[s] from the document is not enough.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir.
2016) (alteration in original) (citation and internal quotation marks omitted).
The Court will consider on this motion the documents attached to the SAC. In addition,
the Court will consider the Parole Revocation Decision Notice, as it is integral to Plaintiff’s
allegations and cited in his opposition brief. See Preston v. New York, 223 F. Supp. 2d 452, 462
(S.D.N.Y. 2002).
III.

DISCUSSION
A.

Plaintiff’s Claims

Plaintiff asserts claims for monetary damages against DOCCS and the individual
Defendants in their official and individual capacities. (SAC ¶¶ 8, 11-14, 45, 47, 50, 52, 55-56,
62, 67, 73, 78, 81.) He also requests injunctive and declaratory relief, (SAC at Prayer for Relief
¶ d; see id. ¶ 1 (“Plaintiff seeks . . . affirmative and equitable relief . . . .”)), but he does not

10

specify the injunctive or declaratory relief that he seeks. In his opposition memorandum, he
explains that he is seeking “injunctive relief to prevent the DOCCS from continuing to assert
false actions against him as he is still on parole and subject to the supervision of the DOCCS and
continues to suffer as he never received credit for the 93 days he was wrongly incarcerated.”
(P’s Opp. at 12-13.) The Court declines to consider this statement, however, because “[a]
plaintiff . . . is not permitted to interpose new factual allegations or a new legal theory in
opposing a motion to dismiss.” Uddoh v. United Healthcare, 254 F. Supp. 3d 424, 429
(E.D.N.Y. 2017) (collecting cases). But even if the Court were to consider Plaintiff’s additional
explanation, his claim for injunctive relief would still fail because he has not “alleg[ed] that
[Defendants were] engaging in the unlawful practice against . . . [him] at the time of the
complaint,” Robidoux v. Celani, 987 F.2d 931, 938 (2d Cir. 1993), nor has he “demonstrate[d] a
certainly impending future injury,” Marcavage v. City of N.Y., 689 F.3d 98, 103 (2d Cir. 2012)
(internal quotation marks omitted). Accordingly, Plaintiff’s claims for injunctive and declaratory
relief are dismissed and the Court will only consider Plaintiff’s claims for damages.
Plaintiff has withdrawn his claims of cruel and unusual punishment and Monell liability.
(P’s Opp. at 5 n.1.) Additionally, he failed to respond to Defendants’ argument that the
excessive force claim should be dismissed. (Ds’ Mem. at 18-19.) The excessive force claim is
therefore dismissed because Plaintiff has abandoned it. See, e.g., Romeo & Juliette Laser Hair
Removal, Inc. v. Assara I LLC, No. 08-CV-442, 2014 WL 4723299, at *7 (S.D.N.Y. Sept. 23,
2014) (“At the motion to dismiss stage, where review is limited to the pleadings, a plaintiff
abandons a claim by failing to address the defendant’s arguments in support of dismissing that
claim.”).

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B.

Eleventh Amendment Immunity

Defendants argue that the Eleventh Amendment bars Plaintiff’s claims against DOCCS
and the individual Defendants in their official capacities. (Ds’ Mem. at 6-7.) “The Eleventh
Amendment bars a damages action in federal court against a state and its officials when acting in
their official capacity unless the state has waived its sovereign immunity or Congress has
abrogated it.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 193 (2d
Cir. 2015); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
DOCCS is an agency of New York state, and as such it is “entitled to assert the state’s
Eleventh Amendment immunity where, for practical purposes, the agency is the alter ego of the
state and the state is the real party in interest.” Santiago v. N.Y.S. Dep’t of Corr. Servs., 945 F.2d
25, 28 n.1 (2d Cir. 1991). New York has not waived its sovereign immunity, nor has Congress
abrogated states’ sovereign immunity through 42 U.S.C. § 1983. See id. at 31; Ortiz v. Russo,
No. 13-CV-5317, 2015 WL 1427247, at *5 (S.D.N.Y. Mar. 27, 2015) (citing Santiago, 945 F.2d
at 31); Johnson v. New York, No. 10-CV-9532, 2012 WL 335683, at *1 (S.D.N.Y. Feb. 1, 2012)
(same). And the individual Defendants are employees of DOCCS, so Eleventh Amendment
immunity extends to them in their official capacities as well. See, e.g., Pizarro v. Gomprecht,
No. 10-CV-4803, 2013 WL 990998, at *8 (E.D.N.Y. Feb. 13, 2013), report and recommendation
adopted, 2013 WL 990997 (E.D.N.Y. Mar. 13, 2013). Plaintiff’s damages claims against
DOCCS and the individual Defendants in their official capacities are therefore barred and must
be dismissed for lack of subject matter jurisdiction. 6

6

In the section of his opposition memorandum addressing the Eleventh Amendment issue, Plaintiff included two
pages of analysis wholly unrelated to the Eleventh Amendment issue or even this case. (P’s Opp. at 13-15.)
Plaintiff’s counsel should be more careful in the future.

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C.

False Arrest

Plaintiff asserts a false arrest claim against Lenard-Horne, Davila, Cieslak, and
Rosenblum. (SAC ¶¶ 43-47.) 7 Claims for false arrest under § 1983 must be analyzed under the
law of the state in which the arrest occurred. See Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir.
2004). Under New York law, to prevail on a false arrest claim, Plaintiff must plausibly allege
that: “(1) the defendant intended to confine him, (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.” Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003) (internal
quotation marks omitted).
Only the fourth prong is in dispute. An arrest by a police officer is privileged if it is
based on probable cause. Id. at 135; see Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir.
1995) (“There can be no federal civil rights claim for false arrest where the arresting officer had
probable cause.”). “Probable cause to arrest exists when the arresting 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.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation
marks omitted). “The existence of probable cause to arrest – even for a crime other than the one
identified by the arresting officer – will defeat a claim of false arrest under the Fourth
Amendment.” Figueroa v. Mazza, 825 F.3d 89, 99 (2d Cir. 2016). “[I]t is well-established that a
law enforcement official has probable cause to arrest if he received his information from some

7

Rosenblum was the parole revocation specialist at the final revocation hearing and it is not alleged that he was
present for, or played any role in, Plaintiff’s detention at the NYSDOP office in Dutchess County. Thus, the SAC
has failed to specify Rosenblum’s personal involvement in any false arrest, so that claim against Rosenblum is
dismissed. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (“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.”) (internal quotation marks omitted).

13

person, normally the putative victim or eyewitness.” Martinez v. Simonetti, 202 F.3d 625, 634
(2d Cir. 2000) (internal quotation marks omitted); see Singer, 63 F.3d at 118. Officers may also
rely on the allegations of fellow officers. Martinez, 202 F.3d at 634. Probable cause “is not a
high bar.” Kaley v. United States, 571 U.S. 320, 338 (2014).
“When a parolee is involved, the lower ‘reasonable cause’ cause standard is in place.”
Gathers v. White, No. 04-CV-5454, 2007 WL 446755, at *4 (E.D.N.Y. Feb. 8, 2007), aff’d sub
nom. Gathers v. Burdick, 308 F. App’x 525 (2d Cir. 2009) (summary order); see Alvarado v. City
of N.Y., 482 F. Supp. 2d 332, 337 (S.D.N.Y. 2007). New York’s parole regulations provide that
“[r]easonable cause exists when evidence or information which appears reliable discloses facts or
circumstances that would convince a person of ordinary intelligence, judgment and experience
that it is reasonably likely that a releasee has committed the acts in question or has lapsed into
criminal ways or company.” 9 N.Y.C.R.R. § 8004.2(c) (emphasis added).
An arresting officer may also avoid liability for a false arrest claim by demonstrating that
he is entitled to qualified immunity. Simpson v. City of N.Y., 793 F.3d 259, 265 (2d Cir. 2015).
“Qualified immunity attaches when an official’s conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (internal quotation marks omitted). “An
officer’s [probable cause] determination is objectively reasonable if there was ‘arguable’
probable cause at the time of the arrest – that is, if officers of reasonable competence could
disagree on whether the probable cause test was met.” Gonzalez v. City of Schenectady, 728
F.3d 149, 157 (2d Cir. 2013) (internal quotation marks omitted); see Arrington v. City of N.Y.,
628 F. App’x 46, 49 (2d Cir. 2015) (summary order) (“For false arrest and malicious prosecution
claims, an officer’s probable cause determination is ‘objectively reasonable’ provided there was

14

‘arguable’ probable cause.”). With respect to false arrest, dismissal “is appropriate when the
only conclusion a rational jury could reach is that reasonably competent police officers could
under the circumstances disagree about the legality of the arrest.” Ricciuti v. N.Y.C. Transit
Auth., 124 F.3d 123, 128 (2d Cir. 1997); see District of Columbia v. Wesby, 138 S. Ct. 577, 58993 (2018) (qualified immunity applies unless “existing precedent” places the unlawfulness “of
the particular arrest beyond debate”) (internal quotation marks omitted). At the motion to
dismiss stage, the qualified immunity defense may only be established if it is “based on facts
appearing on the face of the complaint.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004).
As a threshold matter, as Defendants note, (Ds’ Mem. at 11-12), the instant issue –
whether Defendants had reasonable cause to believe Plaintiff violated his parole conditions –
was an issue before the hearing officer at the preliminary revocation hearing. 8 Courts have
accorded preclusive effect to probable cause determinations made at preliminary revocation
hearings. See Ariola v. LaClair, No. 08-CV-116, 2014 WL 4966748, at *19 (N.D.N.Y. Sept. 30,
2014) (“[A]bsent any allegation contesting the validity of the arrest warrant, this Court may
presume that probable cause exists, as was found at the conclusion of the preliminary parole
revocation hearing, and therefore would act as a bar against any claim for false arrest.”); Bostic
v. Harder, No. 06-CV-540, 2009 WL 3165546, at *6 (N.D.N.Y. Sept. 25, 2009) (“[T]he
determination by the [ALJ] at the preliminary parole revocation hearing finding that there was
probable cause to believe that Plaintiff struck his wife such to violate one of Plaintiff’s parole
conditions is identical to the probable cause determination that is decisive of the [instant] false
arrest claims . . . .”); Gathers, 2007 WL 446755, at *5 (on summary judgment, dismissing false

8
Plaintiff acknowledges that “[p]robable cause was found at the preliminary revocation hearing,” (P’s Opp. at 6),
but he does not address Defendants’ collateral-estoppel argument.

15

arrest claim where, among other things, “hearing officer at [a] preliminary [revocation] hearing
concluded that there was probable cause for the arrest”); Erwin v. Russi, No. 97-CV-5818, 1998
WL 474096, at *5 (S.D.N.Y. Aug. 11, 1998) (“New York courts have consistently held that a
civil rights claim rooted in the absence of probable cause is barred by the collateral estoppel
doctrine where there was a prior judicial determination that probable cause existed.”) (collecting
cases).
As in Bostic, “[t]he issue [of probable cause] was necessarily decided and material in the
preliminary parole revocation hearing, and Plaintiff, who was represented by counsel, had a full
and fair opportunity to litigate the issue in the earlier action.” 2009 WL 3165546, at *6. Thus,
collateral estoppel prevents Plaintiff from re-litigating the issue. Id. (citing Univ. of Tennessee v.
Elliot, 478 U.S. 788, 799 (1986)).
But even if collateral estoppel did not bar Plaintiff’s claim, the Court would find that
Defendants had probable cause, not merely arguable probable cause or reasonable cause, to
believe that Plaintiff violated at least one parole condition. Under New York law, a releasee is
prohibited from behaving in a manner that “violate[s] the provisions of any law to which he is
subject which provides for penalty of imprisonment” or in a manner that “threaten[s] the safety
or well-being of himself or others.” 9 N.Y.C.R.R. § 8003.2(h). Cieslak received the police
report describing what Ms. Felix told the police: she and Plaintiff “got into [an] argument” and
“he hit her with a pair of her pants on/around [her] face/head [and] then pushed her onto [a] bed
and put [his] hands around her neck but did not use force.” (SAC Ex. C at 1.) Cieslak also
spoke to Ms. Felix, who confirmed her statement. (Tr. of Preliminary Hearing at 36:12-20,
38:23-39:1; see Tr. of Revocation Hearing at 18:25-19:11.) In making his reasonable cause

16

determination, Cieslak was “entitled to rely on the victim[’s] allegations that a crime ha[d] been
committed . . . and the allegation[] of [a] fellow police officer[].” Martinez, 202 F.3d at 634.
Even if Cieslak relied on mistaken information – or, as Ms. Felix later contended,
intentionally false information – his reliance on the police report and his interview with Ms.
Felix was reasonable. See Manganiello v. City of N.Y., 612 F.3d 149, 161 (2d Cir. 2010)
(“Probable cause may also exist where the officer has relied on mistaken information, so long as
it was reasonable for him to rely on it.”); Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir.
2001) (officer can rely on information from victim or witness absent reason to doubt that
person’s veracity). Moreover, “[t]he later dismissal of the violation charges did not alter the fact
that there was probable cause for the arrest and prosecution.” Gathers, 2007 WL 446755, at *5.
Nor did Ms. Felix’s later recantation. See Berry v. Marchinkowski, 137 F. Supp. 3d 495, 527
(S.D.N.Y. 2015) (witness’s later recantation irrelevant because probable cause determined based
on information officers had at time of arrest) (collecting cases). And there is no allegation that
Cieslak had any reason to doubt her at the time. See id. As a result, Defendants had probable
cause, and certainly reasonable cause, to detain Plaintiff.
Plaintiff makes two arguments in opposition. First, he argues that Cieslak was skeptical
of Ms. Felix’s claim that she was struck twenty times, relying on Cieslak’s testimony at the final
revocation hearing. (P’s Opp. at 16-17.) This argument mischaracterizes Cieslak’s testimony.
While Cieslak testified that he was suspicious about not being able to see visible marks, he also
testified that Ms. Felix “seemed credible” and that he “didn’t think she was lying. (See Tr. of
Revocation Hearing at 39:9-40:6.) Even assuming Cieslak did not notice visible marks on
Plaintiff, the lack of physical evidence of an assault on the victim’s body is not fatal to finding

17

reasonable cause if the victim reported that she had been assaulted. See Betts v. Shearman, 751
F.3d 78, 83 (2d Cir. 2014).
Second, Plaintiff argues that there was no reasonable cause for taking Plaintiff into
custody because Ms. Felix later said that they merely had a verbal argument and that Plaintiff
never hit her. (P’s Opp. at 6.) This information, however, was not available to Cieslak, LenardHorne, and Davila at the time of the arrest and is therefore irrelevant to their probable cause
determination. See Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“When determining
whether probable cause exists courts must consider those facts available to the officer at the time
of the arrest and immediately before it . . . .”) (emphasis in original) (internal quotation marks
omitted). But even if Cieslak, Lenard-Horne, and Davila were aware of Ms. Felix’s recantation
before they arrested Plaintiff, the argument is unpersuasive, as it ignores an all too common
dynamic in domestic violence cases – a recantation from the victim. “‘[A] recantation is not
unusual in domestic violence cases’ because ‘[v]ictims of this type of violence often are
protective of, and deny allegations against, their abusers.’” Kucera v. Tkac, No. 12-CV-264,
2014 WL 6463292, at *12 (D. Vt. Nov. 17, 2014) (quoting United States v. Carthen, 681 F.3d
94, 103 (2d Cir. 2012)); see United States v. Dunlap, No. 06-CR-244, 2012 WL 3656636, at *3
(D. Neb. Aug. 24, 2012) (“A domestic violence victim is particularly vulnerable to pressure
to recant accusatory testimony and an offender should not be able to reap the benefit of that
vulnerability when other reliable evidence points to guilt.”); see also Tom Lininger, Prosecuting
Batterers After Crawford, 91 Va. L. Rev. 747, 768 (2005) (“Victims of domestic violence are
more prone than other crime victims to recant or refuse to cooperate after initially providing
information to police. Recent evidence suggests that 80 to 85 percent of battered women will
recant at some point.”). For this reason, recantations from victims of domestic violence should

18

be viewed “with the utmost suspicion,” and the Court will not treat Ms. Felix’s recantation as
vitiating reasonable cause. Carthen, 681 F.3d at 102 (quoting Haouari v. United States, 510
F.3d 350, 353 (2d Cir. 2007)). Ms. Felix concededly went to the police for help after an
altercation with Plaintiff, wanted them to accompany her when she returned home to gather her
things, and reported that Plaintiff had been violent toward her. Thus, even if she had recanted
before the preliminary hearing, it would have been entirely reasonable for Cieslak to credit her
contemporaneous statements rather than her after-the-fact version.
Because the SAC and the attached exhibits demonstrate that Cieslak, Lenard-Horne, and
Davila had probable cause to detain Plaintiff, Plaintiff’s false arrest claim is dismissed.
D.

Malicious Prosecution

Plaintiff asserts a malicious prosecution claim against Lenard-Horne, Davila, Cieslak,
and Rosenbaum. (SAC ¶¶ 53-62.) As with Plaintiff’s false arrest claim, Plaintiff’s malicious
prosecution claim must be analyzed under New York law. See Manganiello, 612 F.3d at 161.
To establish a malicious prosecution claim under New York law, “a plaintiff must prove (1) the
initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the
proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and
(4) actual malice as a motivation for defendant’s actions.” Id. (internal quotation marks
omitted). Defendants’ argue that Plaintiff has failed to sufficiently allege the third and fourth
elements. (See Ds’ Mem. at 12-14.)
As with false arrest claims, “the existence of probable cause is a complete defense to a
claim of malicious prosecution in New York,” Savino v. City of N.Y., 331 F.3d 63, 72 (2d Cir.
2003), but unlike false arrest claims, the defendant must have possessed probable cause as to
each offense charged, Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). “In the context of a

19

malicious prosecution claim, probable cause under New York law is the knowledge of facts,
actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful
grounds for prosecuting the defendant in the manner complained of.” Rounseville v. Zahl, 13
F.3d 625, 629 (2d Cir. 1994) (internal quotation marks omitted). Therefore, “the existence, or
lack, of probable cause is measured as of the time the judicial proceeding is commenced (e.g.,
the time of the arraignment), not the time of the . . . arrest.” Morgan v. Nassau Cnty., No. 03CV-5109, 2009 WL 2882823, at *10 (E.D.N.Y. Sept. 2, 2009) (internal quotation marks
omitted). “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) (summary order) (quoting Kinzer v. Jackson,
316 F.3d 139, 144 (2d Cir. 2003)).
As a preliminary matter, the SAC does not clarify the basis for charging each of the
individual Defendants with malicious prosecution other than the conclusory allegation that they
agreed to engage in the malicious prosecution of Plaintiff. (See SAC ¶ 56.) Lenard-Horne and
Davila, according to Cieslak, instructed Cieslak to arrest Plaintiff. (Tr. of Revocation Hearing at
64:12-21). But Plaintiff does not identify any involvement on their parts in the commencement
or continuation of Plaintiff’s revocation proceedings. Accordingly, the malicious prosecution
claim is dismissed as to Lenard-Horne and Davila. See Norton v. Town of Islip, 678 F. App’x
17, 20 n.3 (2d Cir. 2017) (summary order) (affirming dismissal of malicious prosecution claim
against defendants because complaint failed to allege sufficient personal involvement) (citing
Farid, 593 F.3d at 249). That leaves Rosenblum and Cieslak as the remaining defendants
accused of malicious prosecution, but they are entitled to absolute or qualified immunity.

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“Parole officers . . . receive absolute immunity for their actions in initiating parole
revocation proceedings and in presenting the case for revocation to hearing officers, because
such acts are prosecutorial in nature.” Scotto v. Almenas, 143 F.3d 105, 112 (2d Cir. 1998); see
White v. Cty. of Dutchess, No. 15-CV-8744, 2016 WL 4449720, at *4 (S.D.N.Y. Aug. 23, 2016)
(“[P]arole officers and parole revocation specialists are entitled to absolute immunity when they
initiate parole revocation proceedings and present the case to revocation hearing officers.”).
Parole officers are also entitled to absolute immunity for any liability resulting from their
testimony at a revocation hearing. See Miller v. Garrett, 695 F. Supp. 740, 745 (S.D.N.Y. 1988)
(extending absolute immunity to parole officer who, among other things, testified at preliminary
hearing); see also Rolon v. Henneman, 443 F. Supp. 2d 532, 536 (S.D.N.Y. 2006) (“It is well
established that testifying witnesses, including police officers, are entitled to absolute immunity
from liability under § 1983 based on their testimony.”) (citing Briscoe v. LaHue, 460 U.S. 325
(1983)), aff’d, 517 F.3d 140 (2d Cir. 2008). Additionally, parole officers receive qualified
immunity for preparing violation reports and recommending an arrest warrant. Scotto, 143 F.3d
at 112.
Rosenblum was the parole revocation specialist who prosecuted the case at the final
revocation hearing, so he is absolutely immune from any claims arising from his role in that
hearing. Cieslak presented the State’s case at the preliminary revocation hearing and was a
witness in the final revocation hearing, and therefore he is immune from any claims arising from
his role in those hearings. To the extent Plaintiff brings the malicious prosecution claim against
Cieslak because he apparently wrote the violation report, (Tr. of Preliminary Hearing at 4:11-13;
19:6-12), Cieslak is entitled to qualified immunity. There was reasonable cause, or at least
arguable reasonable cause, to prosecute Plaintiff for: (1) behaving in a manner that “violate[s]

21

the provisions of any law to which he is subject which provides for penalty of imprisonment” or
in a manner that “threaten[s] the safety or well-being of himself or others,” 9 N.Y.C.R.R. §
8003.2(h); and (2) failing to “comply with the instructions of [his] Parole Officer,” id. §
8003.2(l).
Plaintiff argues that Ms. Felix’s recantation defeated reasonable cause as to the three
charges based on § 8003.2(h), but for the reasons discussed above, her recantation does not
“ma[k]e apparent” the “groundless nature of th[ose] charges.” Lowth v. Town of Cheektowaga,
82 F.3d 563, 571 (2d Cir. 1996). At the very least, Cieslak would be entitled to qualified
immunity. Parole officers of reasonable competence would not agree that a domestic violence
victim’s recantation nullified reasonable cause. To the contrary, many reasonable officers would
regard it as irresponsible to walk away from a charge supported by contemporaneous victim
statements made in circumstances corroborating their sincerity, simply because the victim, when
testifying in the presence of the alleged abuser, changes her story for alleged reasons as
unconvincing as Ms. Felix’s claim that she went to the police only for “emotional support,” (Tr.
of Revocation Hearing at 20:14-21:23), and embellished her story at the behest of an officer, (Tr.
of Preliminary Hearing at 34:9-35:9).
Next, Plaintiff argues that there was no reasonable cause to prosecute him for failing to
comply with Cieslak’s direction to sign the document containing the special parole conditions
because Leonard-Horne said that Plaintiff did not have to sign. (P’s Opp. at 18-19.) The Court
disagrees. The direction to sign appears to be objectively reasonable 9 and Plaintiff concedes he
understood what he was directed to do. Although Lenard-Horne initially said Plaintiff did not
have to sign, by Plaintiff’s account she almost immediately changed her mind. (SAC ¶¶ 20-23.)

9

Requiring a parolee to sign conditions ensures that there will be no later dispute regarding what he was told or
understood.

22

This account is consistent with Cieslak’s testimony that he countermanded Lenard-Horne and
Lenard-Horne then agreed that arresting Plaintiff was appropriate. (Tr. of Revocation Hearing at
55:4-13, 63:15-19, 61:20-62:14, 64:12-21.) While it may have been confusing and even unfair to
tell Plaintiff that he had to sign, then tell him he need not, then tell him he had to, then charge
him for not doing so, it is apparent from Plaintiff’s version of events that he did refuse to sign
and maintained his objection to doing so. (SAC ¶ 20; see Tr. of Preliminary Hearing at 28:1131:4; Tr. of Revocation Hearing at 89:8-93:5.)
At the least, parole officers of reasonable competence could disagree on whether it was
proper to charge Plaintiff for failing to comply with the instruction to sign the document. After
all, the hearing officer at the preliminary hearing found probable cause as to that charge, which
further bolsters the reasonableness of prosecuting Plaintiff for that charge. See Doe ex rel. Doe
v. Whelan, 732 F.3d 151, 156 (2d Cir. 2013) (noting reasonableness of officer’s action bolstered
by subsequent court finding). And Plaintiff has pointed to no clearly established law saying that
a supervising officer’s temporary overruling of a subordinate officer’s directive means the
subordinate officer cannot charge the parolee for refusing to follow the order that preceded or
followed that supervisor’s statement. See Wesby, 138 S. Ct. at 591 (qualified immunity
appropriate where illegality not obvious and no precedent – “much less a controlling case or
robust consensus of cases – [has found] a Fourth Amendment violation under similar
circumstances”) (internal quotation marks omitted); id. at 590 (given “imprecise nature” of
probable cause standard, Supreme Court has “stressed the need to identify a case where an
officer acting under similar circumstances . . . was held to have violated the Fourth
Amendment”) (internal quotation marks omitted).

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In sum, Plaintiff’s malicious prosecution claim against all of the individual Defendants is
dismissed.
IV.

LEAVE TO AMEND
Leave to amend a complaint should be freely given “when justice so requires.” Fed. R.

Civ. P. 15(a)(2). It is “within the sound discretion of the district court to grant or deny leave to
amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). “Leave 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.’” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)).
Plaintiff has amended his complaint twice, (see Docs. 17, 24), after having the benefit of
a pre-motion letter from Defendants outlining their proposed grounds for dismissal, (see Doc.
13), and the discussion at the November 6, 2017 pre-motion conference, (Minute Entry dated
Nov. 6, 2017). Plaintiff’s failure to fix deficiencies in his previous pleadings, after being
provided ample notice of them, is alone sufficient ground to deny leave to amend sua sponte.
See In re Eaton Vance Mut. Funds Fee Litig., 380 F. Supp. 2d 222, 242 (S.D.N.Y. 2005)
(denying leave to amend because “the plaintiffs have had two opportunities to cure the defects in
their complaints, including a procedure through which the plaintiffs were provided notice of
defects in the Consolidated Amended Complaint by the defendants and given a chance to amend
their Consolidated Amended Complaint,” and “plaintiffs have not submitted a proposed amended
complaint that would cure these pleading defects”), aff’d sub nom. Bellikoff v. Eaton Vance
Corp., 481 F.3d 110, 118 (2d Cir. 2007) (“[P]laintiffs were not entitled to an advisory opinion

24

from the Court informing them of the deficiencies in the complaint and then an opportunity to
cure those deficiencies.”) (internal quotation marks omitted); see also Payne v. Malemathew, No.
09-CV-1634, 2011 WL 3043920, at *5 (S.D.N.Y. July 22, 2011) (“That Plaintiff was provided
notice of his pleading deficiencies and the opportunity to cure them is sufficient ground to deny
leave to amend sua sponte.”).
Further, Plaintiff has not asked to amend again or otherwise suggested that he is in
possession of facts that would cure the deficiencies identified in this opinion. Accordingly, the
Court declines to grant leave to amend sua sponte. See TechnoMarine SA v. Giftports, Inc., 758
F.3d 493, 505 (2d Cir. 2014) (plaintiff need not be given leave to amend if he fails to specify
how amendment would cure the pleading deficiencies in his complaint); Gallop v. Cheney, 642
F.3d 364, 369 (2d Cir. 2011) (district court did not err in dismissing claim with prejudice in
absence of any indication plaintiff could or would provide additional allegations leading to
different result); see also Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d
160, 190 (2d Cir. 2015) (denial of leave to amend would be proper where “request gives no clue
as to how the complaint’s defects would be cured”) (internal quotation marks omitted).
V.

CONCLUSION
For the reasons stated above, Defendants’ motion, (Doc. 27) is GRANTED. Causes of

Action One, Two, and Three are dismissed for failure to state a claim, and Causes of Action
Four, Five, and Six are dismissed as withdrawn. The Clerk of Court is respectfully directed to

25

terminate the pending motion, (Doc. 27), effect the amendment described in footnote one above,
and close the case.
SO ORDERED.
Dated: July 23, 2018
White Plains, New York
_________________________________
CATHY SEIBEL, U.S.D.J.

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