Floyd v. Rosen et al

Filing 48

OPINION & ORDER re: 33 MOTION to Dismiss . filed by Magsmen, City of Middletown Municipality, Rosen. Defendants' Motion To Dismiss is granted. However, because this is the first adjudication of Plaintiff's claims on t he merits, the dismissal is without prejudice. If Plaintiff wishes to file an amended complaint, Plaintiff should include within that amended complaint any changes to correct the deficiencies identified in this Opinion that Plaintiff wishes the Co urt to consider. The amended complaint will replace, not supplement, the original complaint and must be filed within 30 days of this Opinion and Order. The amended complaint must therefore contain all of the claims and factual allegations Plaintif f wishes the Court to consider. The Court will not consider factual allegations contained in supplemental letters, declarations, or memoranda. If Plaintiff fails to abide by the 30-day deadline, this Action may be dismissed with prejudice. There sha ll be no extensions.The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 33), and mail a copy of this Opinion & Order to Plaintiff at the address listed in the docket.SO ORDERED. (Signed by Judge Kenneth M. Karas on 5/9/22) (yv)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

JOHN FLOYD, III,
Plaintiff,
No. 21-CV-1668 (KMK)
v.
OPINION & ORDER
127 OFFICER ROSEN, OFFICER
MAGSMEN, and CITY OF MIDDLETOWN
MUNICIPALITY,
Defendants.

John Floyd, III
Brocton, NY
Pro Se Plaintiff
Alex J. Smith, Esq.
Corporation Counsel of the City of Middletown
Middletown, NY
Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
John Floyd, III (“Plaintiff”), proceeding pro se, brings this Action against the City of
Middletown (the “City”) and Middletown Police Department (“MPD”) Officers Rosen (“Rosen”)
and Magsmen (“Magsmen”), alleging violations of his Fourth, Fifth, and Fourteenth Amendment
rights arising out of Plaintiff’s August 20, 2018 arrest and conviction for narcotics possession.
(See generally Compl. (Dkt. No. 1).) Before the Court is Defendants’ Motion To Dismiss the
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (See Not. of
Mot. (Dkt. No. 33).) For the foregoing reasons, the Motion is granted.

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I. Background
A. Materials Considered
As a threshold matter, the Court determines the proper treatment of a number of exhibits
attached to Defendants’ Motion and Plaintiff’s Opposition. Generally, “[w]hen considering a
motion to dismiss, the Court’s review is confined to the pleadings themselves,” because “[t]o go
beyond the allegations in the [c]omplaint would convert the Rule 12(b)(6) motion into one for
summary judgment pursuant to [Rule] 56.” Thomas v. Westchester Cnty. Health Care Corp.,
232 F. Supp. 2d 273, 275 (S.D.N.Y. 2002). “Nevertheless, the Court’s consideration of
documents attached to, or incorporated by reference in the [c]omplaint, and matters of which
judicial notice may be taken, would not convert the motion to dismiss into one for summary
judgment.” Id.; see also Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (explaining that “when
ruling on Rule 12(b)(6) motions to dismiss,” courts may “consider the complaint in its
entirety . . . , documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice”); Hu v. City of New York, 927 F.3d 81, 88 (2d Cir. 2019) (“In
deciding a Rule 12(b)(6) motion, the court may consider ‘only the facts alleged in the pleadings,
documents attached as exhibits or incorporated by reference in the pleadings, and matters of
which judicial notice may be taken.” (alteration omitted) (quoting Saimels v. Air Transp. Local
504, 992 F.2d 12, 15 (2d Cir. 1993))). “Moreover, ‘where a document is not incorporated by
reference, the court may nevertheless consider it where the complaint relies heavily upon its
terms and effect, thereby rendering the document integral to the complaint.’” Alvarez v. County
of Orange, 95 F. Supp. 3d 385, 394 (S.D.N.Y. 2015) (alteration omitted) (quoting DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)).

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1. Defendants’ Exhibits
Defendants attach the following exhibits to their Motion: (1) the Complaint, (see Decl. of
Alex Smith in Supp. of Mot. (“Smith Decl.”) (Dkt. No. 34) Ex. A (Dkt. No. 34-1)); (2) the MPD
incident report from the August 20, 2018 search which precipitated Plaintiff’s arrest, (see Smith
Decl. Ex. B (Dkt. No. 34-2)); (3) the warrant for the aforementioned search, dated August 17,
2018, (see Smith Decl. Ex. C (Dkt. No. 34-3)); (4) the affidavit/application for the
aforementioned warrant, dated August 17, 2018, (see Smith Decl. Ex. D (Dkt. No. 34-4)); (5) the
receipt/return for the search, dated August 20, 2018, (see Smith Decl. Ex. E (Dkt. No. 34-5));
(6) the transcript from Plaintiff’s August 31, 2018 arraignment and guilty plea before the Orange
County Court, (see Smith Decl. Ex. F (Dkt. No. 34-6)); (7) the forfeiture settlement agreement
that Plaintiff signed before his sentencing, (see Smith Decl. Ex. G (Dkt. No. 34-7)); (8) the
transcript from Plaintiff’s December 21, 2018 sentencing by the Orange County Court, (see
Smith Decl. Ex. H (Dkt. No. 34-8)); (9) the text of § 36-4A of the Middletown City Code, (see
Smith Decl. Ex. I (Dkt. No. 34-9)); and (10) the text of Federal Rule of Civil Procedure 56, (see
Smith Decl. Ex. J (Dkt. No. 34-10)). It is axiomatic that the Court can consider the Complaint,
and equally clear that the Court can consider § 36-4A of the Middletown City Code and Rule 56,
to the extent relevant. This leaves the incident report; the search warrant and the materials
related to it; the transcripts from Plaintiff’s arraignment, guilty plea, and sentencing; and the
forfeiture agreement, which Defendants argue were either incorporated into the Complaint by
reference or are subject to judicial notice. (See Smith Decl. ¶ 2.)
“Generally, a court may incorporate documents referenced where (1) [the] plaintiff relies
on the materials in framing the complaint, (2) the complaint clearly and substantially references
the documents, and (3) the document’s authenticity or accuracy is undisputed.” Stewart v.
Riviana Foods Inc., No. 16-CV-6157, 2017 WL 4045952, at *6 (S.D.N.Y. Sept. 11, 2017)
3

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(emphasis omitted) (collecting cases); see also Dunkelberger v. Dunkelberger, No. 14-CV-3877,
2015 WL 5730605, at *5 (S.D.N.Y. Sept. 30, 2015) (“To be incorporated by reference, the
complaint must make a clear, definite, and substantial reference to the documents, and to be
integral to the complaint, the plaintiff must have (1) actual notice of the extraneous information
and (2) relied upon the documents in framing the complaint.” (alterations omitted) (quoting Bill
Diodato Photography LLC v. Avon Prods., Inc., No. 12-CV-847, 2012 WL 4335164, at *3
(S.D.N.Y. Sept. 21, 2012))). The Court finds that none of these documents has been
incorporated by reference into the Complaint because none of the documents was referenced in
the Complaint. (See generally Compl.) See also Hutson v. Notorious B.I.G., LLC, No. 14-CV2307, 2015 WL 9450623, at *3 (S.D.N.Y. Dec. 22, 2015) (declining to consider documents on a
motion to dismiss as incorporated by reference where “they are not referenced in the
[complaint]”). To the contrary, as to the search warrant, Plaintiff specifically alleges in the
Complaint that Defendants did not have a search warrant, (see Compl. 7); as such, Plaintiff not
only does not reference the search warrant in the Complaint, he specifically denies its existence.1
See, e.g., Yi Sun v. N.Y.C. Police Dep’t, No. 18-CV-11002, 2020 WL 4530354, at *7 n.7
(S.D.N.Y. Aug. 6, 2020) (declining to consider a 311 activity log on a motion to dismiss where
“[t]he . . . complaint does not allege that any call to 311 was made”).
However, “[c]ourts may take judicial notice of public documents and matters of public
record,” Casey v. Odwalla, Inc., 338 F. Supp. 3d 284, 294 (S.D.N.Y. 2018), including
“document[s] filed in another court[,] not for the truth of the matters asserted in the other
litigation, but rather to establish the fact of such litigation and related filings,” Glob. Network

1

When citing to the Complaint, the Court refers to the ECF-stamped page numbers at the
top-right corner of each page.
4

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Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (quotation marks
omitted). Beginning with the transcripts from Plaintiff’s arraignment, guilty plea, and
sentencing, “courts routinely take judicial notice—at the motion to dismiss stage—of transcripts
of related judicial proceedings, including criminal proceedings,” and this Court will do the same
here. Coggins v. County of Nassau, No. 07-CV-3624, 2008 WL 2522501, at *7 (E.D.N.Y.
June 20, 2008) (collecting cases); see also Johnson v. Pugh, No. 11-CV-385, 2013 WL 3013661,
at *2 (E.D.N.Y. June 18, 2013) (“Here, the [c]ourt finds it proper to take judicial notice of [the]
plaintiff’s guilty plea, conviction, and sentencing as a matter of public record without converting
[the] defendant’s motion [to dismiss] into one for summary judgment.”). The Court will also
take judicial notice of Plaintiff’s forfeiture agreement. See Smith v. Rossini, No. 19-CV-323,
2020 WL 9816016, at *2 n.4 (E.D.N.Y. Nov. 30, 2020) (collecting cases for the proposition that
a court may take judicial notice of public records, including records of criminal cases). Next, the
Court will take judicial notice of the fact that an application for a search warrant was made, a
search warrant was issued, and a search warrant was executed. See Fine v. ESPN, Inc., 11
F. Supp. 3d 209, 223 (N.D.N.Y. 2014) (“In deciding a motion to dismiss, a court may take
judicial notice of public records, including [a warrant application].”); Moore v. City of New York,
No. 08-CV-2449, 2011 WL 795103, at *1 n.2 (E.D.N.Y. Feb. 28, 2011) (“[T]he [c]ourt takes
judicial notice of the relevant search warrant and other public documents filed in connection with
state court litigation concerning the search warrant.”). However, the Court will not take judicial
notice of the incident report, because Defendants do not represent that the incident report was
filed in another court or is otherwise a matter of public record. See Alvarez v. County of Orange,
95 F. Supp. 3d 385, 398 (S.D.N.Y. 2015) (declining to take judicial notice of incident report
where “[the] [d]efendants do not represent . . . that the [i]ncident [r]eport . . . w[as] filed in a

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court in connection with [the] [p]laintiff’s bench trial,” “[n]or do they argue that the documents
are appropriate for consideration based on other Second Circuit precedent”); Peterec v. Hilliard,
No. 12-CV-3044, 2013 WL 5178328, at *3 (S.D.N.Y. Sept. 16, 2013) (“It is not proper . . . for
[the court] to consider . . . the incident report . . . in resolving a motion to dismiss where, as here,
they were not attached, incorporated by reference, or integral to the [complaint].”).
2. Plaintiff’s Exhibits
Plaintiff attaches the following exhibits to his Opposition: (1) an envelope addressed to
Plaintiff’s counsel in his criminal case with a postage date of October 20, 2018, which Plaintiff
claims held a letter from Plaintiff requesting certain discovery materials in Plaintiff’s criminal
case, (see Dkt. No. 45, at 5); (2) a letter from the Orange County Clerk, dated January 22, 2021,
in response to a request from Plaintiff under the New York Freedom of Information Law
(“FOIL”), (see id. at 6); (3) a FOIL request from Plaintiff, dated February 19, 2021, seeking
materials pertaining to Plaintiff’s criminal indictment, (see id. at 7); (4) a second FOIL request
from Plaintiff, dated December 3, 2018, again seeking materials pertaining to Plaintiff’s criminal
indictment, (see id. at 8).2 In light of Plaintiff’s pro se status and the fact that these documents
are consistent with Plaintiff’s allegations in the Complaint that he repeatedly made requests for
materials concerning his indictment, (see Compl. 8), the Court will consider these documents.
See Fishman v. City of New Rochelle, No. 19-CV-265, 2021 WL 4925518, at *4 (S.D.N.Y.
Oct. 19, 2021) (“Although [the] [p]laintiff’s exhibits were not attached to the [c]omplaint, the
[c]ourt may consider documents attached to opposition papers if they are consistent with the
allegations in the [c]omplaint and [the] [p]laintiff is proceeding pro se.” (italics omitted)); Clark
v. Suffolk County, No. 14-CV-7195, 2018 WL 1221171, at *1 (E.D.N.Y. Feb. 7, 2018) (“[T]he

2

When citing to the letter to which Plaintiff attached the exhibits to his Opposition, the
Court refers to the ECF-stamped page numbers at the top-right corner of each page.
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[c]ourt may consider documents that a pro se plaintiff attaches to his opposition papers.” (italics
omitted)), report and recommendation adopted, 2018 WL 1221133 (E.D.N.Y. Mar. 8, 2018).
In any event, the Court notes that the consideration or non-consideration of most of the
documents attached to either Defendants’ Motion or Plaintiff’s Opposition does not affect the
outcome of Defendants’ Motion.
B. Factual Background
The following facts are taken from the Complaint and are assumed to be true for purposes
of resolving the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension
Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam). Where relevant, the
Court also recounts facts from the various other materials the Court has ruled it may consider in
deciding Defendants’ Motion To Dismiss.
On August 20, 2018, Rosen and Magsmen entered Plaintiff’s girlf riend’s home at
approximately 5am, arrested Plaintiff, and conducted a search of the home. (See Compl. 7; see
also Smith Decl. Ex. E.) Plaintiff alleges that he was “cuffed” without explanation and that
Rosen and Magsmen refused to provide him with a copy of the search warrant, which had been
issued several days earlier. (See Compl. 7; see also Smith Decl. Ex. C.) Neither Plaintiff nor his
girlfriend consented to the search. (See Compl. 7.) The receipt/return on the search warrant
states that Rosen and Magsmen seized: 8.3 grams of crack cocaine, packaging material, a New
York State ID card, $1,051 in U.S. currency, a digital scale, and 4 cell phones. (See Smith Decl.
Ex. E.) Plaintiff was arraigned on August 31, 2018 before the Orange County Court, and pled
guilty to Criminal Possession of a Controlled Substance in the Third Degree. (See Smith Decl.
Ex. F.) On December 21, 2018, Plaintiff was sentenced to five years of probation and 1,000
hours of community service, to be completed over five years. (See Smith Decl. Ex. H.) Plaintiff
also agreed to forfeit the $1,051 that had been seized. (See Smith Decl. Ex. G.)
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Plaintiff alleges that over the course of his criminal proceedings in Orange County Court,
he was denied certain discovery by then-Orange County District Attorney Janine Kovacs
(“Kovacs”), despite his multiple requests for the documents. (See Compl. 8.) Plaintiff’s inability
to attain these documents persisted after his conviction and sentencing, forcing Plaintiff to file
multiple FOIL requests. (See id.)
Plaintiff is currently in the process of pursuing an appeal to the New York Appellate
Division. (See Pl.’s Mem. 3 (“At this time the plaintiff would like the Court to be made aware of
the fact that he is currently awaiting a final determination of his appeal, stemming from the
conviction of the August 20, 2018 search and seizure, and arrest.”).)
C. Procedural History
Plaintiff’s Complaint was docketed on February 25, 2021, bringing claims against the
City, Rosen, and Magsmen, in addition to Kovacs. (See Compl.) The Complaint was followed
by Plaintiff’s application for the Court to appoint pro bono counsel on May 14, 2021. (See Appl.
for Pro Bono Counsel (Dkt. No. 6).) On June 3, 2021, Plaintiff’s request to proceed in forma
pauperis was granted, and accordingly, the Court issued an Order of Service on June 7, 2021.
(See Dkt. Nos. 9, 12.) In the Order of Service, the Court dismissed Plaintiff’s claims against
Kovacs pursuant to 28 U.S.C. § 1915(e)(2)(b)(i), because Kovacs is protected by absolute
prosecutorial immunity. (See Dkt. No. 12, at 2–3.) On June 22, 2021, the Court denied
Plaintiff’s request for pro bono counsel without prejudice. (See Dkt. No. 16.) On July 6 and
July 30, 2021, Plaintiff’s second and third requests for pro bono counsel were docketed, (see
Dkt. Nos. 22, 24, 25, 31), both of which were denied, (see Dkt. Nos. 23, 40).
Meanwhile, on July 19, 2021, Defendants filed a pre-motion letter in anticipation of
moving to dismiss the Complaint, (see Dkt. No. 27), and on July 29, 2021, the Court set a
briefing schedule, (see Dkt. No. 29). Defendants filed their Motion To Dismiss on August 31,
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2021. (See Not. of Mot.; Smith Decl.; Defs.’ Mem. of Law in Supp. of Mot. (“Defs.’ Mem.”)
(Dkt. No. 35).) After seeking and receiving an extension of time to respond, (see Dkt. Nos. 37,
38, 39), Plaintiff’s Opposition was docketed on November 10, 2021, (see Not. of Opp’n (Dkt.
No. 41); Decl. of John Floyd, III in Opp’n to Mot. (“Pl. Decl.”) (Dkt. No. 42); Pl.’s Mem. of
Law in Opp’n to Mot. (“Pl.’s Mem.”) (Dkt. No. 43).) Defendants filed their Reply in the form of
an affidavit on November 22, 2021. (See Reply Decl. of Alex Smith in Supp. of Mot. (“Reply
Smith Decl.”) (Dkt. No. 46).)
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Id. (alteration and quotation marks omitted). Rather, a
complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations in the complaint,” id. at
563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its
face,” id. at 570, if a plaintiff has not “nudged [his] claim[] across the line from conceivable to
plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task that
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requires the reviewing court to draw on its judicial experience and common sense. But where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” (second alteration in original) (citation omitted) (quoting FED. R. CIV. P. 8(a)(2))); id. at
678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading
regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), and “draw all reasonable inferences in the plaintiff’s favor,” Div. 1181, 9 F.4th at 95
(citation omitted). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the complaint, in documents appended to
the complaint or incorporated in the complaint by reference, and to matters of which judicial
notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317 (S.D.N.Y.
2016) (same). As noted, however, when a plaintiff proceeds pro se, the Court may consider
“materials outside the complaint to the extent that they are consistent with the allegations in the
complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y.
Aug. 2, 2013) (quotation marks omitted), and, moreover, must “construe[] [his] [complaint]
liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s],” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (quotation marks omitted). That said, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559

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(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,
605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding
procedural rules and to comply with them.” (italics and quotation marks omitted)).
B. Analysis
Liberally construed, Plaintiff claims a series of constitutional violations arising from his
August 20, 2018 arrest, including (1) a violation of his Fourth and Fourteenth Amendment rights
based on what Plaintiff claims was a warrantless search of his girlfriend’s home, conducted
without probable cause, (see Compl. 7); (2) an additional violation of his Fourth and Fourteenth
Amendment rights based on what Plaintiff claims was a false arrest and a malicious prosecution,
which Plaintiff claims was based on falsified evidence, (see id. at 8; see also Pl.’s Mem. 5–7)3;
and (3) a violation of his Fourteenth Amendment rights via the denial of discovery, which the
Court construes as a claim under Brady v. Maryland, 373 U.S. 83 (1963), (see Compl. 8).
Plaintiff also seeks to hold the City liable under Monell v. Department of Social Services, 436
U.S. 658 (1978). (See id. at 9.) Plaintiff is not specific as to the type of relief he seeks, stating
only that he “want[s] all relief deemed fit & proper from the Courts & the message sent that our
right [sic] can not [sic] be violated & those who do pay for their actions.” (See id. at 5.)
Defendants argue that the Complaint must be dismissed in its entirety, because
(1) Plaintiff’s claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994), (Defs.’ Mem. 5–
7), (2) Plaintiff fails to state a claim for false arrest, malicious prosecution, or falsified evidence
(see id. at 7–12); (3) Plaintiff fails to state a claim for municipal liability under Monell, (see id. at
12–15); (4) any state law claims must be dismissed for failure to serve a notice of claim upon the

When citing to Plaintiff’s Opposition, the Court refers to the ECF-stamped page
numbers at the top-right corner of each page.
3

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City, as required under New York state law, and as time-barred (see id. at 15–18); and (5) Rosen
and Magsmen are protected by qualified immunity, (see id. at 18).
The Court will address these arguments to the extent necessary to decide the instant
Motion.
1. Federal Claims for Injunctive Relief
As a preliminary matter, to the extent Plaintiff seeks injunctive relief in the form of an
order directing the Orange County Court or the Appellate Division to vacate his guilty plea and
reverse his conviction, the Court cannot grant this relief . In Younger v. Harris, 401 U.S. 37
(1971), the Supreme Court held that federal courts “in the interest of comity, should abstain from
hearing a case that would interfere with an on-going state criminal proceeding.” Kunz v. N.Y.
Comm’n on Jud. Conduct, 356 F. Supp. 2d 188, 192 (N.D.N.Y. 2005) (citing Younger); see also
Spargo v. N.Y. Comm’n on Jud. Conduct, 351 F.3d 65, 74–75 (2d Cir. 2003) (noting that
Younger abstention is grounded in principles of comity and federalism and that “[b]oth
considerations require federal courts to be cognizant that the National Government will fare best
if the States and their institutions are left free to perform their separate functions in their separate
ways” (quotation marks omitted)). “Younger abstention is mandatory when: (1) there is a
pending state proceeding, (2) that implicates an important state interest, and (3) the state
proceeding affords the federal plaintiff an adequate opportunity for judicial review of his or her
federal constitutional claims.” Spargo, 351 F.3d at 75. The Second Circuit has held that
Younger is inapplicable to § 1983 claims seeking money damages, but Younger abstention
continues to apply to claims for injunctive relief brought pursuant to § 1983. See Diamond “D”
Constr. Corp. v. McGowan, 282 F.3d 191, 196 n.2 (2d Cir. 2002); Rivers v. McLeod, 252 F.3d
99, 101–02 (2d Cir. 2001) (per curiam); Homere v. Incorporated Village of Hempstead, 322
F. Supp. 3d 353, 368 (E.D.N.Y. 2018) (noting that “an exercise of abstention may be appropriate
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under Younger, but only . . . to the extent [the] [p]laintiffs seek injunctive relief in the instance
federal proceeding” because “abstention is inappropriate where a plaintiff seeks money damages
for alleged constitutional violations pursuant to [§] 1983” (citation omitted)).
The Younger requirements are all met here. Plaintiff is in the process of pursuing an
appeal to the Appellate Division, and it implicates an important state interest because “it is
axiomatic that a state’s interest in the administration of criminal justice within its borders is an
important one.” Hansel v. Town Ct. for the Town of Springfield, 56 F.3d 391, 393 (2d Cir.
1995); see also Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013) (“Younger exemplifies
one class of cases in which federal-court abstention is required: When there is a parallel, pending
state criminal proceeding, federal courts must refrain from enjoining the state prosecution.”);
Colon v. Vance, No. 18-CV-10058, 2019 WL 2867024, at *2 n.2 (S.D.N.Y. July 3, 2019) (“[T]he
State of New York has an important interest in enforcing its criminal laws.”); Rolle v. McCarthy,
No. 02-CV-4398, 2005 WL 5885366, at *4 (E.D.N.Y. June 21, 2005) (“The administra tion of
criminal justice in the state courts of New York is undoubtedly an important state interest.”).
And, there is no suggestion that Plaintiff’s pending appeal in New York state court will not
provide him with an adequate opportunity for judicial review on his federal constitutional claims.
See, e.g., Burke v. Reid-Cherry, No. 20-CV-1835, 2021 WL 2092669, at *5 (S.D.N.Y. May 24,
2021) (“[C]ourts in this Circuit have repeatedly found that New York state courts afford a
plaintiff an adequate opportunity for judicial review of constitutional claims.” (citing, inter alia,
Sobel v. Prudenti, 25 F. Supp. 3d 340, 355 (E.D.N.Y. 2014))). In fact, “Younger generally
prohibits courts from ‘taking jurisdiction over federal constitutional claims that involve or call

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into question ongoing state proceedings’ so as to avoid unnecessary friction.” Spargo, 351 F.3d
at 75 (quoting Diamond “D” Constr., 282 F.3d at 198). 4
Accordingly, to the extent Plaintiff requests injunctive relief that would impact his
ongoing state court case, that claim for relief is denied.
2. Federal Claims for Damages
a. Application of Heck
Defendants argue that because Plaintiff “is challenging the legitimacy of the execution of
the [search] warrant and his arrest,” Plaintiff’s claims are barred by Heck. (See Defs.’ Mem. 5–
7.) While the Court agrees that Plaintiff’s claims would be barred by Heck, the Court declines to
dismiss Plaintiff’s claims on this basis, because it is unclear whether Plaintiff is “in custody” on
the conviction underlying this Action.

The Second Circuit has noted that “[d]espite the strong policy in favor of abstention,
even where Younger would otherwise apply, a federal court may still intervene in state
proceedings if the plaintiff demonstrates bad faith, harassment[,] or any other unusual
circumstance that would call for equitable relief.” Spargo, 351 F.3d at 75 n.11 (quotation marks
omitted). “[F]or a federal plaintiff to invoke the bad faith exception, the party bringing the state
action must have no reasonable expectation of obtaining a favorable outcome[,] . . . [and the]
federal plaintiff must show that the state proceeding was initiated with and is animated by a
retaliatory, harassing, or other illegitimate motive.” Diamond “D” Constr., 282 F.3d at 199
(quotation marks omitted). “It is the plaintiff who has the burden of establishing that the bad
faith exception applies.” Wilson v. Emond, No. 08-CV-1399, 2009 WL 1491511, at *2
(D. Conn. May 28, 2009). For the extraordinary circumstance exception to apply, the state court
must be “incapable of fairly and fully adjudicating the federal issues before it,” and, “whatever
else is required, such circumstances must be extraordinary in the sense of creating an
extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of
presenting a highly unusual factual situation.” Diamond “D” Constr., 282 F.3d at 201
(quotation marks omitted) (quoting Kugler v. Helfant, 421 U.S. 117, 124–25 (1975)).
While Plaintiff has broadly accused Kovacs—the then-Orange County District
Attorney—of pursuing a malicious prosecution against him, (see Compl. 8), he has failed to put
forth any facts to establish that the prosecution against him was brought in bad faith. Rather, the
prosecution against Plaintiff appears to have been “nothing more than a straightforward
enforcement of the laws of New York.” Diamond “D” Constr., 282 F.3d at 199 (quotation
marks omitted). Therefore, the Court finds that the bad faith exception does not apply here.
4

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The Supreme Court in Heck v. Humphrey held:
[I]n 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 § 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 courts issuance of a writ of habeas corpus,
[pursuant to] 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.
512 U.S. at 486–87 (footnote omitted); see also Muhammed v. Close, 540 U.S. 749, 751 (2004)
(“In Heck . . . , we held that where success in a prisoner’s § 1983 damages action would
implicitly question the validity of conviction or duration of sentence, the litigant must first
achieve favorable termination of his available state, or federal habeas, opportunities to challenge
the underlying conviction or sentence.”); Poventud v. City of New York, 750 F.3d 121, 128 (2d
Cir. 2014) (en banc) (“The Supreme Court . . . has effectively subordinated the § 1983 remedy to
the writ of habeas corpus when the remedies would overlap (and to some extent, even when they
do not).” (alteration, italics, and citation omitted)). As the Second Circuit has recently explained,
the Supreme Court was concerned that “allowing a [§] 1983 plaintiff to seek damages while
serving a sentence on the underlying conviction would promote an end -run around Congress’s
choice that habeas corpus, with its strict procedural rules, be the sole basis for challenging the
constitutional validity of an outstanding state criminal conviction.” Smalls v. Collins, 10 F.4th
117, 136 (2d Cir. 2021) (citing Heck, 512 U.S. at 480–84). Accordingly, it is now well-settled
that “[a] civil rights claim pursuant to 42 U.S.C. § 1983 is not a substitute for a direct appeal
from a criminal conviction or a challenge to the conviction by way of a habeas corpus petition or
similar motion for post-conviction relief.” McKay v. E. Hartford Police Dep’t, No. 16-CV-1954,
2017 WL 4247383, at *2 (D. Conn. Sept. 25, 2017).

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Here, it is clear that all of Plaintiff’s claims would be barred, because success on any of
them would “implicitly question the validity of [Plaintiff’s] conviction.” Muhammed, 540 U.S.
at 750. Beginning with Plaintiff’s Fourth Amendment search and seizure claim: while “Heck
acknowledges that many unreasonable searches could lead to § 1983 actions that exist
independent of the termination of the criminal proceedings,” Poventud, 750 F.3d at 132, “district
courts have frequently found that § 1983 actions targeting a single episode involving a single
search[] necessarily demonstrate the invalidity of a conviction based on that search,” El v. City of
New York, No. 14-CV-9055, 2015 WL 1873099, at *4 (S.D.N.Y. Apr. 23, 2015). As such,
where, as here, a plaintiff’s conviction “for possession of narcotics stems solely from evidence
obtained [from] . . . a single episode involving a single search,” courts routinely hold that
“success on [the] [p]laintiff’s § 1983 claim that the search was unlawful would necessarily imply
the invalidity of his conviction.” Id. (dismissing Fourth Amendment claim as “barred under
Heck” where the plaintiff “[pled] guilty to the charges that he knowingly possessed narcotics”);
see also Monroe v. Gould, 372 F. Supp. 3d 197, 203 (S.D.N.Y. 2019) (“Having pleaded guilty to
criminal possession of a controlled substance, success on [the] plaintiff’s [§] 1983 claim that the
search was unlawful would necessarily imply the invalidity of his conviction. Therefore, [the]
plaintiff’s claim concerning the search which led to the discovery of cocaine is barred by
[Heck].”); cf. Paulin v. Town of New Windsor, No. 18-CV-6182, 2020 WL 5898958, at *8
(S.D.N.Y. Oct. 5, 2020) (ruling, on summary judgment, that where “[the] [p]laintiff ultimately
pled guilty to attempted criminal possession of a controlled substance in the third
degree . . . based on the narcotics found at the [a]partment,” “[the] [p]laintiff’s claim for relief
asserting that he was subject to an unreasonable search and seizure is plainly barred by Heck
because success on [the] [plaintiff’s] § 1983 claim that the search was unlawful would

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necessarily imply the invalidity of his conviction” (alteration and quotation marks omitted)).
Plaintiff’s Fourth Amendment search and seizure claim would be therefore barred.
Plaintiff’s Fourth Amendment claims for false arrest and malicious prosecution would
fare no better. Suits for both malicious prosecution and false arrest require a plaintiff to
demonstrate that the resulting proceeding terminated in his or her f avor. See Poventud, 750 F.3d
at 130–31 (“Malicious prosecution suits require, as an element of the offense, the termination of
the proceeding in favor of the accused.” (quotation marks omitted)); Horvath v. City of New
York, No. 12-CV-6005, 2015 WL 1757759, at *3 (E.D.N.Y. Apr. 17, 2015) (“The existence of
probable cause to arrest constitutes justification and is a complete defense to an action for false
arrest, whether that action is brought under state law or § 1983. . . . [Thus,] [a] valid prosecution
resulting in conviction is conclusive evidence that probable cause existed for an arrest, even if
the conviction is the result of a guilty plea to a lesser charge than that for which [the] plaintiff
was arrested.” (citations omitted)); Hayes v. County of Sullivan, 853 F. Supp. 2d 400, 428
(S.D.N.Y. 2012) (“When a [§] 1983 plaintiff pleads guilty to the underlying or lesser included
charge, this fact alone provides sufficient evidence that probable cause existed at the time of the
arrest and precludes a false arrest claim under [§] 1983.” (alterations omitted) (emphasis in
original) (quoting Feurtado v. Gillespie, No. 04-CV-3405, 2005 WL 3088327, at *4 (E.D.N.Y.
Nov. 17, 2005))); see also John v. Lewis, Nos. 15-CV-5346, 15-CV-6853, 2017 WL 1208428, at
*10 (E.D.N.Y. Mar. 31, 2017) (“In this Circuit, a plaintiff cannot establish any false arrest or
malicious prosecution claim if he pleads guilty to a lesser offense pursuant to a plea agreement.”
(alterations and citation omitted)). Therefore, success on a § 1983 claim for malicious
prosecution or false arrest where the plaintiff has been convicted—via guilty plea or otherwise—
necessarily requires a finding that the conviction is invalid. See Poventud, 750 F.3d at 131–32

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(explaining that “[i]n the context of § 1983 malicious prosecution cases, Heck’s bar is
coextensive with the favorable termination requirement” because “[e]ither the outstanding
conviction was invalid, or the elements of malicious prosecution [are] not met”); see also Barnes
v. City of New York, No. 13-CV-7283, 2015 WL 4076007, at *16 (S.D.N.Y. July 2, 2015)
(“Where the plaintiff[’]s underlying conviction has not been so invalidated, courts routinely
dismiss [§] 1983 claims for, inter alia, malicious prosecution, conspiracy, and deprivation of the
right to a fair trial pursuant to Heck.” (italics omitted) (collecting cases)). Here, Plaintiff pled
guilty to Criminal Possession of a Controlled Substance in the Third Degree. See supra I.B.
Therefore, Plaintiff’s claims for false arrest and malicious prosecution could not stand under
Heck.
Finally, as for Plaintiff’s Brady claim, the Second Circuit “has emphatically and properly
confirmed that Brady-based § 1983 claims necessarily imply the invalidity of the challenged
conviction in the trial (or plea) in which the Brady violation occurred.” Poventud, 750 F.3d at
132 (emphasis omitted) (citing Amaker v. Weiner, 79 F.3d 48, 51–52 (2d Cir. 1999)); see also id.
(“That should come as no surprise; the remedy for a Brady violation is vacatur of the judgment
of conviction and a new trial in which the defendant now has the Brady material available to
her.”); Hurley v. Town of Southampton, No. 17-CV-5543, 2018 WL 3941944, at *15 (E.D.N.Y.
Aug. 13, 2018) (report and recommendation) (explaining that “[the] [p]laintiff’s Brady claim is
barred by Heck [because] [the] [p]laintiff has not alleged that his convictions . . . , based on his
guilty pleas, among other things, have been invalidated in any way ”), report and
recommendation adopted (E.D.N.Y. Sept. 21, 2018). Plaintiff’s Brady claim would therefore be
barred under Heck as well.

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Accordingly, the Court finds that Plaintiff’s claims would be subject to dismissal as
barred by Heck. However, because it is not clear to the Court whether Plaintiff is currently in
custody on the conviction which precipitated this Action, the Court declines to dismiss Plaintiff’s
claims on Heck grounds.
Courts have held that “Heck does not bar § 1983 claims when habeas is unavailable,”
such as when the plaintiff is no longer “in custody” and thus is ineligible for § 2254 relief.
Teichmann v. New York, 769 F.3d 821, 829–30 (2d Cir. 2014) (Calabresi, J., concurring); see
also 28 U.S.C. § 2254(a) (“[A] district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.”). However, there is a “deep circuit split” on validity of this exception, Teichmann, 769
F.3d at 829, and intra-circuit disputes over its scope, see, e.g., Opperisano v. Jones, 286
F. Supp. 3d 450, 457–60 (E.D.N.Y. 2018); see also Chapman v. Fais, 540 F. Supp. 3d 304, 307
(E.D.N.Y. 2021) (“The Second Circuit has not squarely determined whether Heck applies once a
plaintiff is no longer in custody, and the issue remains controversial.”). Plaintiff here falls into
one such grey area.
Plaintiff was sentenced to a term of five years of probation on December 21, 2018 after
pleading guilty to Criminal Possession of a Controlled Substance in the Third Degree on
August 31, 2018. See supra I.B. Had Plaintiff been on probation at the time he filed the
Complaint in February 2021, this would have been considered “custody” for § 2254 purposes.
See United States ex rel. B. v. Shelly, 430 F.2d 215, 217 n.3 (2d Cir. 1970) (explaining that the
Supreme Court’s decision in Jones v. Cunningham, 371 U.S. 236 (1963) “clearly holds that
parole is custody [and] we are directed to no reason or authority which would distinguish

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probation from parole in habeas corpus applications”). However, it appears that at the time
Plaintiff initiated the instant Action, he was in physical custody of DOCCS on different charges.
Defendants note in their Memorandum of Law that Plaintiff recently brought a challenge to
another conviction. (See Defs.’ Mem. 12 n.17.) Plaintiff filed that lawsuit after he initiated the
instant Action, and noted in that complaint—dated May 5, 2021—that he has been incarcerated
at the Orange County Jail since his July 22, 2020 arraignment on a series of charges stemming
from incidents that took place on July 4, 2020 and July 7, 2020. (See Compl., Floyd v. Cuomo,
No. 21-CV-4096, Dkt. No. 2 (S.D.N.Y. May 5, 2021).) See also Glob. Network Commc’ns, 458
F.3d at 157 (“A court may take judicial notice of a document filed in another court.”). While it is
possible that Plaintiff was imprisoned for violating the terms of his probation and was thus in
custody on the conviction which precipitated this Action at the time he filed the Complaint,
neither Party has addressed this issue; the Court thus declines to rule conclusively that Heck
applies to these circumstances to bar Plaintiff’s claims.
Instead, the Court dismisses each of Plaintiff’s claims as meritless, for the reasons
described below. See Teichmann, 769 F.3d at 829 (Calabresi, J., concurring) (“[T]here are many
cases that have the potential to raise Heck questions [that] can be disposed of based on wellsettled principles upon which there is broad agreement, and when that is so, it is generally
desirable for . . . district courts to decide them on these non Heck grounds.”).
b. Municipal Liability
First, Plaintiff’s claims against the City cannot stand. “To state a claim under [§ 1983],
the plaintiff must show that a defendant, acting under color of state law, deprived him of a
federal constitutional or statutory right.” Sykes, 723 F.3d at 405–06. However, “Congress did
not intend municipalities to be held liable [under § 1983] unless action pursuant to official
municipal policy of some nature caused a constitutional tort.” Monell, 436 U.S. at 691. Thus,
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“to prevail on a claim against a municipality under [§] 1983 based on acts of a public official, a
plaintiff is required to prove: (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
municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d
Cir. 2008); see also Williams v. Lohard, No. 20-CV-10571, 2022 WL 269164, at *3 (S.D.N.Y.
Jan. 28, 2022) (“[The] [p]laintiff’s claim against the [c]ity fails for lack of facts supporting the
existence of a municipal policy or practice.” (citing cases)); Palmer v. City of New York, —
F. Supp. 3d — , 2021 WL 4480572, at *7–8 (E.D.N.Y. Sept. 30, 2021) (dismissing claim against
city where the plaintiffs failed to “sufficiently allege[] that they suffered constitutional violations
as a result of an official policy or custom” (quotation marks omitted)). The fifth element reflects
the notion that “a municipality may not be held liable under § 1983 solely because it employs a
tortfeasor.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); see also
Newton v. City of New York, 566 F. Supp. 2d 256, 270 (S.D.N.Y. 2008) (“As subsequently
reaffirmed and explained by the Supreme Court, municipalities may only be held liable when the
municipality itself deprives an individual of a constitutional right.”). In other words, a
municipality may not be held liable under § 1983 “by application of the doctrine of respondeat
superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (italics omitted); see also
Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting that “a municipal entity
may only be held liable where the entity itself commits a wrong” (emphasis in original)).
Instead, there must be a “direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see also City of
St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnments should be held responsible
when, and only when, their official policies cause their employees to violate another person’s

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constitutional rights.”). “In determining municipal liability, it is necessary to conduct a separate
inquiry into whether there exists a ‘policy’ or ‘custom.’” Davis v. City of New York, 228
F. Supp. 2d 327, 336 (S.D.N.Y. 2002), aff’d, 75 F. App’x 827 (2d Cir. 2003). Normally, “a
custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by
a mere employee of the [municipality].” Newton, 566 F. Supp. 2d at 271; see also City of
Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985) (plurality opinion) (“Proof of a single
incident of unconstitutional activity is not sufficient to impose liability under Monell, unless
proof of the incident proof that it was caused by an existing, unconstitutional municipal policy,
which policy can be attributed to a municipal policymaker.”); Brogdon v. City of New Rochelle,
200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by itself is generally insufficient
to establish the affirmative link between the municipal policy or custom and the alleged
unconstitutional violation.”).
A plaintiff may satisfy the “policy or custom” requirement by alleging one of the
following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that caused
the particular deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted);
see also Patterson v. County of Oneida, 375 F.3d 206, 226–27 (2d Cir. 2014) (describing
methods of establishing Monell liability). Moreover, as indicated above, a plaintiff must also
establish a causal link between the municipality’s policy, custom, or practice and the alleged
constitutional injury. See Tuttle, 471 U.S. at 824 n.8 (“The fact that a municipal ‘policy’ might
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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.” (emphasis 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
plaintiffs’ injury, Monell prohibits a finding of liability against the [c]ity.”); Hincapie v. City of
New York, 434 F. Supp. 3d 61, 77 (S.D.N.Y. 2020) (finding that the plaintiff “fails to state a
Monell claim” because the plaintiff “has not pled facts demonstrating a direct link between his
injuries and the alleged municipal policy”); Johnson v. City of New York, No. 06-CV-9426, 2011
WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (noting that after demonstrating the existence of a
municipal policy or custom, “a plaintiff must establish a causal connection —an affirmative
link—between the policy and the deprivation of his constitutional rights” (quotation marks
omitted)).
Here, Plaintiff appears to allege two theories of municipal liability: (1) that the City is
liable “due to the fact that the [City] had multiple employees & agents engage in wrongdoing,”
and (2) that the Defendants “violat[ed] . . . multiple municipal policies, customs & practices
[which] caused the violation of [Plaintiff’s] constitutional rights.” (Compl. 9.) Neither theory
suffices to establish municipal liability under Monell. First, as explained above, “a municipality
may not be held liable under § 1983 solely because it employs a tortfeasor,” Brown, 520 U.S. at
403; as such, to the extent Plaintiff attempts to argue that the City is liable based solely on its
employment of Rosen and Magsmen, this argument fails. Second, Plaintiff’s bare allegation that
certain “municipal policies, customs & practices” existed and were violated by Rosen and
Magsmen, (see Compl. 9), is “conclusory, and therefore must be disregarded.” Simms v. City of

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New York, No. 10-CV-3420, 2011 WL 4543051, at *3 (E.D.N.Y. Sept. 28, 2011) (dismissing
conclusory allegations that did not provide sufficient facts to allow the court to infer what city
policies or practices led to the alleged deficiency), aff’d, 480 F. App’x 627 (2d Cir. 2012); see
also Bohmer v. New York, No. 06-CV-11370, 2011 WL 2651872, at *3 (S.D.N.Y. June 16, 2011)
(“Boilerplate assertions that a municipality has a custom or policy resulting in a constitutional
deprivation of the plaintiff’s rights are insufficient.”); Moore v. City of New York, No. 08-CV8879, 2010 WL 742981, at *6 (S.D.N.Y. Mar. 2, 2010) (“Allegations that a defendant acted
pursuant to a policy or custom without any facts suggesting the policy’s existence, are plainly
insufficient.” (quotation marks omitted)). Moreover, an allegation that municipal policies were
violated can never support a finding of municipal liability, because it is the “antithesis of a
Monell claim.” Thomas v. DuBois, No. 19-CV-7533, 2020 WL 2092426, at *4 (S.D.N.Y.
Apr. 30, 2020) (quoting Adams v. Orange County, No. 13-CV-8549, 2014 WL 6646042, at *4
(S.D.N.Y. Nov. 12, 2014)). This is because any alleged violation of Plaintiff’s constitutional
rights would have been caused by “the failure to follow a policy, not the policy itself,” and “[b]y
definition, such allegations fail to state a claim under Monell.” Id. (emphasis in original)
(collecting cases); see also Williams v. City of N.Y. Dep’t of Corr., No. 19-CV-9528, 2020 WL
3893929, at *6 n.5 (S.D.N.Y. July 10, 2020) (“[T]his claim is not that the [defendant’s] policy
was improper, but that [the defendant’s] officers failed to follow their own policy. An alleged
failure to follow a policy ‘is the antithesis of a link between policy and action,’ and is insufficient
to state a claim under Monell.” (quoting Walker v. Shaw, No. 08-CV-10043, 2010 WL 2541711,
at *7 (S.D.N.Y. June 23, 2010))).
Accordingly, Plaintiff’s claims against the City are dismissed.

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c. Official Capacity Claims
To the extent Plaintiff seeks to bring claims against Rosen and Magsmen in their official
capacities, these claims fail for the same reason that Plaintiff’s Monell claim against the City
fails. Rosen and Magsmen are municipal employees as MPD police officers, and as such, claims
against them in their official capacities “‘are tantamount to claims against the municipality
itself.’” Fierro v. N.Y.C. Dep’t of Educ., 994 F. Supp. 2d 581, 588 (S.D.N.Y. 2014) (quoting
Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993)); see also Patterson, 375 F.3d at
226 (“[A] claim against a municipal employee in his official capacity is deemed brought against
the municipality itself.” (citation omitted)); Davis v. Stratton, 360 F. App’x 182, 183 (2d Cir.
2010) (summary order) (“The suit against the mayor and police chief in their official capacities is
essentially a suit against the [city], because in a suit against a public entity, naming officials of
the public entity in their official capacities adds nothing to the suit.” (alteration and quotation
marks omitted)). As such, “‘there must be proof of [a municipal] custom or policy [that caused
the plaintiff’s alleged constitutional deprivation] in order to permit recovery on claims against
individual municipal employees in their official capacities,’” and for the reasons outlined above,
Plaintiff here has failed to adequately allege the existence of such a custom or policy. Fierro,
994 F. Supp. 2d at 588 (quoting Dwares, 985 F.2d at 100); see also Carr v. County of Sullivan,
No. 16-CV-6850, 2018 WL 3733952, at 5 n.8 (S.D.N.Y. Aug. 3, 2018) (“Given that [the]
[p]laintiff has not plausibly alleged the existence of an official policy or custom, the claims
against the municipal employees in their official capacities are dismissed.”).
Accordingly, Plaintiff’s claims against Rosen and Magsmen in their official capacities are
dismissed.

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d. Individual Capacity Claims
The Court’s holdings above leave Plaintiff’s claims for damages against Rosen and
Magsmen in their individual capacities. However, the Court finds each of these claims to be
subject to dismissal, for the reasons described below.
i. Fourth Amendment Search and Seizure Claim
Plaintiff claims that Rosen and Magsmen violated his Fourth Amendment rights by
illegally entering and performing a search of his girlfriend’s home without a warrant. (Compl.
7.) Moreover, Plaintiff alleges that neither he nor his girlfriend consented to the search, and
argues that because he was not engaged in criminal activity at the time the search was conducted,
the search incident to arrest exception to the warrant requirement does not apply. (See id.)
The Supreme Court has explained that the Fourth Amendment “imposes two
requirements.” Kentucky v. King, 563 U.S. 452, 459 (2011). “First, all searches and seizures
must be reasonable. Second, a warrant may not be issued unless probable cause is properly
established and the scope of the authorized search is set out with particularity.” Id. Moreover,
“[a]lthough the text of the Fourth Amendment does not specify when a search warrant must be
obtained,” the Supreme Court has also held that “‘[i]t is a basic principle of Fourth Amendment
law . . . that searches and seizures inside of a home without a warrant are presumptively
unreasonable.’” Id. (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). However, the
reverse is also true: “A search is presumptively reasonable when executed pursuant to a
warrant.” Merriweather v. City of New York, No. 12-CV-5258, 2015 WL 57399, at *6 (S.D.N.Y.
Jan. 5, 2015) (“A search warrant issued by a neutral magistrate, upon a finding of probable
cause, must be afforded great deference and creates a presumption that the officers executing the
warrant acted in an objectively reasonable fashion.” (collecting cases)); see also Ganek v.
Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017) (“[A] search pursuant to a warrant issued by a judicial
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officer upon a finding of probable cause is presumptively reasonable.” (citing Golino v. City of
New Haven, 950 F.2d 864, 870 (2d Cir. 1991))).
Here, the basis of Plaintiff’s Fourth Amendment search and seizure claim is that Rosen
and Magsmen’s search and seizure was conducted without a warrant. (See Compl. 7.) However,
the Court has taken judicial notice of the fact that Rosen and Magsmen’s search and seizure was,
in fact, conducted pursuant to a search warrant. (See Smith Decl. Ex. C.) See also supra I.A.1.
As such, the Court finds that the search was presumptively reasonable, and Plaintiff has put forth
no allegations to rebut this presumption. (See generally Compl.) The Court need not go any
further in dismissing Plaintiff’s Fourth Amendment search and seizure claim as meritless. 5
ii. Fourth Amendment Malicious Prosecution and False Arrest
Claims
Plaintiff’s claims for malicious prosecution and false arrest under the Fourth Amendment
fail on the merits for the same reasons that the Court found them to be barred under Heck. See
supra II.B.2.a. “A § 1983 claim for false arrest, resting on the Fourth Amendment right of an

5

In his Opposition papers, Plaintiff appears to change tack, seemingly arguing that the
court’s finding of probable cause in issuing the warrant was in error, because the court’s finding
was based, in part, on hearsay information from a confidential informant, who accused Plaintiff
of conduct for which he was never indicted. (See Pl.’s Mem. 3–5; Pl. Decl. 6–8.) These
arguments—beyond being inconsistent with Plaintiff’s allegations in the Complaint—are
meritless.
The standard for probable cause does not mirror the standard for a finding of guilt in a
criminal prosecution, and the trial protections afforded to criminal defendants (such as the rule
against hearsay) do not apply to the consideration of a warrant application. See, e.g., Walczyk v.
Rio, 496 F.3d 139, 156–57 (2d Cir. 2007) (“‘Finely tuned standards such as proof beyond a
reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place’ in
a probable cause determination.” (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983))). Instead,
“probable cause is a ‘fluid concept’ that can vary with the facts of each case,” and a magistrate
reviewing a warrant application is instructed to consider the “totality of the circumstances” in
determining whether the probable cause standard is met. United States v. Clark, 638 F.3d 89, 93
(2d Cir. 2011) (quoting Gates, 462 U.S. at 232, 238). As part of these assessments, magistrates
may consider—among other things—“hearsay, including the hearsay statements of a confidential
informant.” United States v. Harding, 273 F. Supp. 2d 411, 418 (S.D.N.Y. 2003).
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individual to be free from unreasonable seizures, including arrest without probable cause, is
substantially the same as a claim for false arrest under New York law.” Covington v. City of
New York, 171 F.3d 117, 122 (2d Cir. 1999) (quotation marks omitted). Under New York law, a
plaintiff claiming false arrest must show “that the defendant intentionally confined him without
his consent and without justification.” Id. (citation omitted). “In order to state a claim for the
tort of malicious prosecution under New York law, a plaintiff must prove ‘(1) the initiation or
continuation of a criminal proceeding against [the] plaintiff; (2) termination of the proceeding in
[the] plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4) actual
malice as a motivation for [the] defendant’s actions.’” Murphy v. Lynn, 118 F.3d 938, 947 (2d
Cir. 1997) (quoting Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995)). Thus, “[p]robable cause is a
complete defense to any action for false arrest or malicious prosecution in New York.”
Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010) (citing Jaegly v. Couch, 439 F.3d
149, 152 (2d Cir. 2006)).
The Second Circuit has explained that where a plaintiff brings an action “asserting false
arrest, false imprisonment, or malicious prosecution, . . . the plaintiff can under no circumstances
recover if he was convicted of the offense for which he was arrested,” because “the fact of that
conviction [functions] as conclusive evidence of the good faith and reasonableness of the
officer’s belief in the lawfulness of the arrest.” Cameron v. Fogarty, 806 F.2d 380, 387–88 (2d
Cir. 1986). And, “[c]ourts apply the principles enunciated in Cameron even when the conviction
was the result of a guilty plea to a lesser offense.” John, 2017 WL 1208428, at *10 (collecting
cases); see also Maietta v. Artuz, 84 F.3d 100, 102 n.1 (2d Cir. 1996) (“[C]ommon law principles
preclude a challenge to the validity of an arrest after a guilty plea, for purposes of a civil suit
under . . . § 1983.”). As such, “[w]hen a [§] 1983 plaintiff pleads guilty to the underlying or a

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lesser charge, this fact alone provides sufficient evidence that probable cause existed at the time
of the arrest and precludes a false arrest claim under [§] 1983.” Hayes, 853 F. Supp. 2d at 428
(alterations and citation omitted) (emphasis in original); see also Blackwood v. Omorvan,
No. 16-CV-644, 2019 WL 4600662, at *7 (S.D.N.Y. Sept. 23, 2019) (“[A] guilty plea is not a
termination in favor of the accused for purposes of a malicious prosecution claim.” (quoting
Rivera v. City of Yonkers, 470 F. Supp. 2d 402, 408 (S.D.N.Y. 2007))); John, 2017 WL 1208428,
at *10 (“In this Circuit, a plaintiff cannot establish any false arrest or malicious prosecution
claim if he pleads guilty to a lesser offense pursuant to a plea agreement.” (alterations and
citation omitted)).
Here, Plaintiff pled guilty to Criminal Possession of a Controlled Substance in the Third
Degree. See supra I.B. The fact of Plaintiff’s conviction serves as conclusive evidence that
Plaintiff’s arrest and prosecution were supported by probable cause, and thus, his claims for false
arrest and malicious prosecution fail as a matter of law. See, e.g., Hayes, 853 F. Supp. 2d at 428
(“[A]s [the] [p]laintiff pleaded guilty to the criminal charges which arose from his arrest . . . he is
barred as a matter of law from bringing a claim for false arrest under § 1983.”). Accordingly,
these claims are dismissed.
iii. Fourteenth Amendment Brady Claim
“The basic rule of Brady is that the Government has a constitutional duty to disclose
favorable evidence to the accused where such evidence is ‘material’ either to guilt or
punishment.” United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001) (citing Brady, 373 U.S.
at 87). “Favorable evidence includes not only evidence that tends to exculpate the accused, but
also evidence that is useful to impeach the credibility of a government witness.” Id. “To
demonstrate such a deprivation, a defendant must show that: (1) the Government, either willfully
or inadvertently, suppressed evidence; (2) the evidence at issue is favorable to the defendant; and
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(3) the failure to disclose this evidence resulted in prejudice.” Id. at 140; see also Ying Li v. City
of New York, 246 F. Supp. 3d 578, 627 (E.D.N.Y. 2017) (“A classic Brady violation contains
three elements: The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued. . . . To establish prejudice, a
plaintiff must show that the evidence was material; i.e., whether the evidentiary suppression
undermines confidence in the outcome of the trial.” (citation omitted) (quoting Fappiano v. City
of New York, 640 F. App’x 115, 118 (2d Cir. 2016))). “When police officers withhold
exculpatory or impeaching evidence from prosecutors, they may be held liable under § 1983 for
violating the disclosure requirements of [Brady].” Bellamy v. City of New York, 914 F.3d 727,
751 (2d Cir. 2019); cf. Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992) (“[T]he
police satisfy their obligations under Brady when they turn exculpatory evidence over to the
prosecutors.”).
While Plaintiff broadly alleges that he was “denied [his] charges, Bill of Particulars &
Discovery amongst all other documents needed proven neccessary [sic] to formulate a proper
defense,” (Compl. 8), he has failed to identify with any specificity what evidence was allegedly
withheld, let alone that this hypothetical evidence was material, (see generally id.). As such,
Plaintiff has failed to plausibly state a claim under Brady. See Myers v. County of Nassau, 825
F. Supp. 2d 359, 368 (E.D.N.Y. 2011) (“As to any Brady claim, there is no allegation that [the]
[d]efendants withheld exculpatory evidence. Therefore, to the extent that [the] [p]laintiff
attempts to state a Fifth Amendment claim under Brady, he sets forth no facts supporting any
such theory.”); cf. Isaac v. City of New York, No. 16-CV-4729, 2018 WL 5020173, at *11–12
(E.D.N.Y. Aug. 6, 2018) (finding that allegations “which specifically identif[y] . . . the evidence

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that [the defendant-police officers] allegedly fabricated and transmitted to the prosecutors” were
“adequate to state a Brady violation claim”).6
Moreover, even assuming arguendo that Plaintiff had specifically identified material
evidence that was withheld during his state proceedings sufficient to state a Brady claim, he has
failed to allege that either Rosen or Magsmen was personally involved in the alleged violation.
“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). To
establish personal involvement, a plaintiff must plausibly allege that the defendant’s actions fall
into one of the following five categories:
(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 inmates by failing to act on information indicating that
unconstitutional acts were occurring.

6

Plaintiff appears to argue in his Opposition that the Brady material that was allegedly
withheld from him was the search warrant. (See Pl.’s Mem. 2 (arguing that “Plaintiff was unable
to knowingly challenge the legitimacy of the search warrant and any of the evidence held against
him, because at the time the plaintiff was never in receipt of his discovery, or given at all [sic]”).)
However, Plaintiff fails to demonstrate how the search warrant would have been considered
exculpatory to Plaintiff, such that the alleged failure to disclose the search warrant prejudiced
Plaintiff. Moreover, while not dispositive, it is possible that the reason that Plaintiff allegedly
was not provided with a copy of the search warrant or with an opportunity to challenge the
legitimacy of it is because Plaintiff chose to plead guilty at his arraignment—which took place
less than two weeks after his arrest. Cf. United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n.1
(2d Cir. 1974) (“Neither Brady nor any other case we know of requires that disclosures under
Brady must be made before trial.” (emphasis added)).
.
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Id. at 139. In other words, “because vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
Here, Plaintiff has failed to allege that either Rosen or Magsmen was personally involved
in the alleged Brady violation. Rather, Plaintiff specifically identifies Kovacs as responsible for
“den[ying] & depriv[ing] [Plaintiff] of [his] documents!” (Compl. 8.) However, as explained,
the Court has already dismissed Kovacs from this Action based on her absolute prosecutorial
immunity. See supra I.C. Having failed to either identify the material evidence that was
allegedly withheld or to link Rosen and Magsmen to this suppression, Plaintiff has failed to state
a cognizable claim under Brady.
Accordingly, this claim is dismissed. 7
3. State Law Claims
As the Court has dismissed Plaintiff’s federal causes of action, it declines to exercise
supplemental jurisdiction over Plaintiff’s state law claims, to the extent Plaintiff intends to bring
them. See Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (“In general, where the federal
claims are dismissed before trial, the state claims should be dismissed as well.”); Torres v. City
of New York, 248 F. Supp. 2d 333, 334 (S.D.N.Y. 2003) (“Where the basis for pendent
jurisdiction is dismissed, ordinarily so should the state law claims be dismissed.”).

7

To the extent Plaintiff sought to bring any other federal constitutional claims, (see, e.g.,
Compl. 4 (“My protected constitutional right [sic] have been continuously violated by all said
Defendants to with [sic] but not limited to, false arrest, illegal entry & illegal search & seizure
w/o warrant. Malicious & coersed [sic] prosecution falsified evidence & voted indictment,
perjury, illegal sentence & denied discovery to due process [sic].”), 5 (“Mental anguish of being
violated in front of innocent children & with such disrespect & no regard to my rights or
humans/mens [sic] with rights! and having my name connected to a homicide I know nothing
about.”)), these claims are dismissed as “naked assertions devoid of further factual
enhancement.” Iqbal, 556 U.S. at 678.
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III. Conclusion
For the foregoing reasons, Defendants’ Motion To Dismiss is granted. However, because
this is the first adjudication of Plaintiff’s claims on the merits, the dismissal is without prejudice.
If Plaintiff wishes to file an amended complaint, Plaintiff should include within that amended
complaint any changes to correct the deficiencies identified in this Opinion that Plaintiff wishes
the Court to consider. The amended complaint will replace, not supplement, the original
complaint and must be filed within 30 days of this Opinion and Order. The amended complaint
must therefore contain all of the claims and factual allegations Plaintiff wishes the Court to
consider. The Court will not consider factual allegations contained in supplemental letters,
declarations, or memoranda. If Plaintiff fails to abide by the 30-day deadline, this Action may be
dismissed with prejudice. There shall be no extensions.
The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt.
No. 33), and mail a copy of this Opinion & Order to Plaintiff at the address listed in the docket.

SO ORDERED.
Dated:

May 9, 2022
White Plains, New York

KENNETH M. KARAS
United States District Judge

33