Stokes, Jr. v. Wayne County et al

Filing 93

DECISION AND ORDER granting in part and denying in part 69 Motion to Dismiss and/or for Summary Judgement; denying 86 Motion to File a Sur-Reply; denying 88 Motion to Reopen Discovery; and denying 90 Motion to Reject Plaintiff's Motions. Signed by Hon. Elizabeth A. Wolford on 03/10/2025. (JKS)This was mailed to: Plaintiff.Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
RICHIE A. STOKES, JR.,
Plaintiff,
DECISION AND ORDER
-v6:21-CV-06657 EAW
WAYNE COUNTY, WAYNE COUNTY
SHERIFF’S OFFICE, WAYNE COUNTY
DISTRICT ATTORNEY, DEPUTY
THOMAS D’AMATO, SCRIBNER, JOHN
DOES #1-10, JOHN DOES WAYNE
COUNTY DISTRICT ATTORNEY #1-10,
Defendants.
_____________________________________
INTRODUCTION
Pro se plaintiff Richie A Stokes, Jr. (“Plaintiff”) alleges pursuant to 42 U.S.C.
§ 1983 that defendants Wayne County, Wayne County Sheriff’s Office, Wayne County
District Attorney, Deputy Thomas D’Amato (“Deputy D’Amato”), Deputy Scribner,
Deputy John Does #1-10 (“Deputy John Does”), and Wayne County Assistant District
Attorney John Does #1-10 (“ADA John Does”) (collectively “Defendants”) violated his
constitutional rights in connection with an arrest occurring on August 29, 2020. (Dkt. 1).
Pending before the Court are four motions: (1) Defendants’ motion for judgment on the
pleadings and summary judgment (Dkt. 69); (2) Plaintiff’s motion to file a sur-reply

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(Dkt. 86); (3) Plaintiff’s motion to reopen discovery (Dkt. 88); and (4) Defendants’ motion
to reject Plaintiff’s motions (Dkt. 90).1
For the reasons that follow: (1) Defendants’ motion for judgment on the pleadings
and summary judgment is granted in part and denied in part; (2) Plaintiff’s motion to file a
sur-reply is denied; (3) Plaintiff’s motion to reopen discovery is denied; and
(4) Defendants’ motion to reject Plaintiff’s motions is denied as moot.
FACTUAL BACKGROUND
The following facts are taken from Defendants’ Rule 56(a)(1) Statement of Material
Facts (Dkt. 69-20), Plaintiff’s Rule 56(a)(1) Statement of Material Facts (Dkt. 81-1),2
Plaintiff’s verified complaint (Dkt. 1),3 and the exhibits submitted by the parties, including

1

In Plaintiff’s opposition to Defendants’ motion for summary judgment and
judgment on the pleadings he asserts that he is “entitl[ed] to summary judgment on his
excessive force claim, Monell claim and false arrest.” (Dkt. 81 at 7). Plaintiff’s request is
both untimely and procedurally improper. But to the extent it could be construed as a
request for summary judgment in Plaintiff’s favor, it is denied.
2

Plaintiff adopts many of the factual assertions made by Defendants in their Rule
56(a)(1) Statement of Material Facts in his own Rule 56(a)(1) Statement of Material Facts.
(See Dkt. 69-20; Dkt. 81-1). The primary difference is how the parties characterize the
interactions between Plaintiff and the Defendant law enforcement officers.
3

“A plaintiff’s verified complaint is to be treated as an affidavit.” Zielinksi v.
Annucci, No. 9:17-CV-1087 (GTS/CFH), 2020 WL 7074845, at *7 (N.D.N.Y. Nov. 12,
2020) (citations omitted); see also Brandon v. Kinter, 938 F.3d 21, 26 n.5 (2d Cir. 2019)
(“[The plaintiff’s] Amended Complaint was sworn under penalty of perjury. Therefore,
his allegations in the complaint can be considered as evidence for summary judgment
purposes.”).
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the body worn camera video footage (Dkt. 69-6).4 The Court has noted relevant factual
disputes.
On August 29, 2020, while on patrol, Defendant Deputy Thomas D’Amato
(“Deputy D’Amato”) saw a white vehicle traveling on New York State Route 31 in Clyde,
New York. (Dkt. 69-20 at ¶ 4; Dkt. 81-1 at ¶ 1). Deputy D’Amato took three radar readings
which showed that the car was traveling about 70 miles per hour in a 55 mile per hour
speed zone. (Dkt. 69-20 at ¶ 4; Dkt. 81-1 at ¶ 1). Deputy D’Amato followed the vehicle
and, after temporarily losing sight of it, saw that the vehicle failed to obey a stop sign.
(Dkt. 69-20 at ¶¶ 5-6; Dkt. 81-1 at ¶¶ 4-5). Deputy D’Amato activated his vehicle’s
emergency lights and sirens and followed the vehicle until it pulled over onto a residential
lawn at 367 Glasgow Street and stopped. (Dkt. 69-20 at ¶¶ 6-7; Dkt. 81-1 at ¶¶ 6,8).5

4

Plaintiff and Defendants both rely on video captured by the body worn cameras of
Deputy D’Amato, Deputy Scribner, Deputy Munzert, and Deputy Skerrit, filed as four
separate media files at Docket 69-6. (See Dkt. 69-20 at ¶¶ 23-78; Dkt. 81-1 at 7-9, 14-22).
“At the summary judgment stage, facts must be viewed in the light most favorable to the
nonmoving party only if there is a genuine dispute as to those facts.” Scott v. Harris, 550
U.S. 372, 380 (2007) (internal quotation marks omitted and emphasis added). Where a
video of the relevant events exists and there are no disputes about its accuracy, a court
deciding a motion for summary judgment must “view[ ] the facts in the light depicted by
the videotape.” Id. at 381; see also Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007)
(“Incontrovertible evidence relied on by the moving party, such as a relevant videotape
whose accuracy is unchallenged, should be credited by the court on such a motion if it so
utterly discredits the opposing party’s version that no reasonable juror could fail to believe
the version advanced by the moving party.”). In accordance with these principles, the
Court’s factual recitation relies on its own review of the video evidence. For ease of
reference, the Court will refer to both the docket number and the deputy when citing to the
body worn camera video footage.
5

Although Plaintiff includes nearly all of the statements submitted by Defendants in
their Rule 56(a)(1) Statements of Material Facts regarding Defendant D’Amato following
the white vehicle in his own Rule 56(a)(1) Statement of Material Facts, Plaintiff also states
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Deputy D’Amato then approached two men standing at the side of the house and
ordered Plaintiff to get on the ground. (Dkt. 69-6 (D’Amato) at 0:01-0:09; Dkt. 69-20 at
¶ 9; Dkt. 81-1 at ¶ 12). Plaintiff raised his hands in the air and asked, “for what?” and
Deputy D’Amato responded, “because you wouldn’t stop.” (Dkt. 69-6 (D’Amato) at 0:090:15; Dkt. 69-20 at ¶¶ 25-26; Dkt. 81-1 at ¶ 38). Plaintiff laid on the ground and Deputy
D’Amato handcuffed Plaintiff’s hands behind his back. (Dkt. 69-6 (D’Amato) at 0:151:04; Dkt. 69-20 at ¶¶ 27-28; Dkt. 81-1 at ¶ 39). Deputy D’Amato then escorted Plaintiff
to his police vehicle. (Dkt. 69-6 (D’Amato) at 1:04-2:10; Dkt. 69-20 at ¶ 29; Dkt. 81-1 at
¶ 40). According to Deputy D’Amato, he smelled alcohol on Plaintiff’s breath and
observed slurred speech and Plaintiff’s eyes were glassy and bloodshot. (Dkt. 69-11 at
¶ 14; Dkt. 69-20 at ¶ 11; Dkt. 81-1 at ¶ 17).
After Deputy D’Amato searched Plaintiff, he told Plaintiff to get in the back of his
police vehicle and Plaintiff refused. (Dkt. 69-6 (D’Amato) at 4:51-5:09; Dkt. 69-20 at ¶ 36;
Dkt. 81-1 at ¶ 47). Plaintiff asked if he was under arrest and Deputy D’Amato said he was
being arrested for driving while intoxicated. (Dkt. 69-6 (D’Amato) at 5:09-5:12; Dkt. 6920 at ¶ 36; Dkt. 81-1 at ¶ 47). Plaintiff continued to refuse to get in the police vehicle,
stating that he was not driving. (Dkt. 69-6 (D’Amato) at 5:12-5:40; Dkt. 69-20 at ¶ 36;

that these events were not recorded by the body worn camera of Defendant D’Amato and
therefore only constitute Defendants’ “hypothesis” of events “similar to the girl who cried
wolf.” (See Dkt. 81-1 at ¶ 7). Indeed, Plaintiff alleges in his complaint that he was
“a lawful pedestrian and was not operating a motor vehicle” at the time he was approached
by Defendant D’Amato (Dkt. 1 at ¶ 17), and no video footage was produced by Defendants
regarding the alleged car chase.
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Dkt. 81-1 at ¶ 47).

Plaintiff and Deputy D’Amato continued this exchange for

approximately five minutes. (Dkt. 69-6 (D’Amato) at 5:12-9:46).
Deputy Zachary Scribner (“Deputy Scribner”) arrived and stood near Plaintiff and
Deputy D’Amato. (Id. (Scribner) at 0:01-2:13; Dkt. 69-12 at ¶¶ 6-8). Deputy D’Amato
and Deputy Scribner then forcibly pushed Plaintiff into the backseat of the police vehicle.
(Dkt. 69-6 (Scribner) at 2:14-2:21; Dkt. 69-20 at ¶ 12; Dkt. 81-1 at ¶ 18). The altercation
lasted approximately seven seconds. (Dkt. 69-6 (Scribner) at 2:14-2:21). During the
altercation, Plaintiff alleges that Deputy D’Amato and Deputy Scribner “smash[ed]
Plaintiff’s head on the patrol car. . . .” (Dkt. 1 at ¶ 21). The body worn camera video
footage does not show Plaintiff’s head being smashed but the portion where Plaintiff is
forcibly put into the vehicle is not clear. (See Dkt. 69-6).
Deputy D’Amato and Deputy Scribner transported Plaintiff to the Wayne County
Sheriff’s Office, and he was provided the opportunity to perform standard sobriety tests.
(Dkt. 69-20 at ¶ 14; Dkt. 81-1 at ¶ 33). Plaintiff refused to perform the sobriety tests. (Dkt.
69-6 (D’Amato) at 28:42-31:50; 38:50-45:00; Dkt. 69-20 at ¶ 14; Dkt. 81-1 at ¶ 33)
The white vehicle was impounded and searched. (Dkt. 69-19; Dkt. 69-20 at ¶ 20).
Deputy Thomas Munzert (“Deputy Munzert”) conducted the search of the vehicle and
discovered, among other objects, a metal tin containing marijuana. (Dkt. 69-13 at ¶ 13;
Dkt. 69-20 at ¶¶ 19-20, 22). Plaintiff does not address Defendants’ statement of undisputed
facts regarding the impounded vehicle or the material discovered in the search.
Plaintiff was charged with Felony DWI, violations of various provisions of New
York State Vehicle and Traffic Law, unlawful possession of marijuana, unlawfully fleeing,
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and obstruction of government administration. (Dkt. 69-20 at ¶ 15; Dkt. 69-4; Dkt. 69-5).
The Galen Town Court granted Plaintiff’s motion to dismiss the charges on August 11,
2021. (Dkt. 69-16).
Plaintiff’s complaint contains the following causes of action: (1) claim pursuant to
42 U.S.C. § 1983 for violations of the fourth, fifth and fourteenth amendments based upon
false arrest and violations of Plaintiff’s equal protection and due process rights, against
Wayne County, the Wayne County Sheriff’s Office, Deputy D’Amato, Deputy Scribner,
and the Deputy John Does; (2) § 1983 claim of excessive force against Deputy D’Amato
and Deputy Scribner; (3) claim pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978), against Wayne County; (4) § 1983 claim for substantive due process violations by
Wayne County, Deputy D’Amato, Deputy Scribner, and Deputy John Does; (5) § 1983
claim for procedural due process violations by the Wayne County Sheriff’s Office, Wayne
County District Attorney, and the ADA John Does; (6) § 1983 claim for malicious
prosecution in violation of the fourth and fourteenth amendments against all Defendants;
(7) state law assault and battery claim against Wayne County, Deputy D’Amato, Deputy
Scribner, and Deputy John Does; and (9) state law claim for negligent hiring, supervision,
and retention against Wayne County. Plaintiff seeks damages of $10,000,000 on each of
his claims.
PROCEDURAL BACKGROUND
Plaintiff commenced this action on October 26, 2021. (Dkt. 1). After the close of
discovery (Dkt. 64), Defendants filed the present motion on July 12, 2024 (Dkt. 69).
Plaintiff requested an extension of time to respond to the motion on September 10, 2024,
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nearly a month after his opposition was due. (Dkt. 76). The Court granted his request for
an extension, but warned Plaintiff that no further extensions would be granted absent
extraordinary circumstances. (Dkt. 78). After a further requested extension was denied
(Dkt. 80), Plaintiff filed his opposition on December 5, 2024 (Dkt. 81), and Defendants
replied on December 18, 2024 (Dkt. 84). Plaintiff then requested permission to file a surreply and oversized brief (Dkt. 86) on December 26, 2024. Plaintiff then filed a motion
seeking an expedited hearing and a request to reopen discovery. (Dkt. 88). Defendants
filed a single-page letter motion asking the Court to reject Plaintiff’s motions (Dkt. 90), to
which Plaintiff responded with a 42-page opposition (Dkt. 92).6
DISCUSSION
I.

Plaintiff’s Motion to File a Sur-Reply
Plaintiff requests permission to file a sur-reply and oversized brief. (Dkt. 86). He

makes this request in order to have a “full opportunity to reply and present material facts
and discoverable evidence to prove the elements” of his claims. (Dkt. 86 at 1). In his
motion papers, Plaintiff explains the importance of the body worn camera video and
provides a copy of the Wayne County Sheriff’s Office policy on body worn cameras and
in-car cameras. (Id. at 1-2, 7-15). As noted above, the Court has reviewed and considered
the body worn camera video in deciding Defendants’ pending motion.

6

The content of Plaintiff’s opposition suggests that it may have been intended to
address, at least in part, another case that he has pending in this Court. See Stokes v. Wayne
County et al., Case No. 6:23-cv-06482-EAW-CDH, Dkt. 1 (W.D.N.Y. Aug. 22, 2023).
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This District’s Local Rules of Civil Procedure state that “[a]bsent permission of the
Judge hearing the motion, sur-reply papers are not permitted.” Loc. R. Civ. P. 7(a)(6).
“[W]hether to permit the filing of a sur-reply is entirely within the Court’s discretion.”
Marseet v. Rochester Inst. of Tech., No. 20-CV-7096FPG, 2022 WL 2718509, at *1
(W.D.N.Y. July 13, 2022).
The Court already granted Plaintiff an extension to respond to Defendants’ motion
of more than 110 days from his original filing deadline. (Dkt. 78). In granting Plaintiff’s
request for an extension of time, the Court was clear that no further extensions would be
granted absent extraordinary circumstances. (Id.). Furthermore, Plaintiff does not indicate
what new facts or evidence would be introduced in his sur-reply or why that information
was not provided in his initial opposition. Indeed, the basis for the request appears to be
the body worn camera video, but as already noted, the Court has considered that evidence
in connection with the pending motion. Therefore, in light of those considerations, the
Court exercises its discretion to deny Plaintiff’s request to file a sur-reply.
II.

Plaintiff’s Motion to Reopen Discovery
Plaintiff seeks an expedited hearing pursuant to Loc. R. Civ. P. 7(d)(1) and to reopen

discovery pursuant to Fed. R. Civ. P. 56(d). (Dkt. 88). The motion is denied.
Rule 56(d) provides that “[i]f a nonmovant [on a summary judgment motion] shows
by affidavit or declaration that, for specified reasons, it cannot present facts essential to
justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow
time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.” Fed. R. Civ. P. 56(d). But a “trial court may properly deny further
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discovery under Rule 56(d) ‘if the nonmoving party has had a fully adequate opportunity
for discovery.’” Turner v. McDonough, No. 18 CIV. 4038 (AEK), 2021 WL 965626, at
*2 (S.D.N.Y. Mar. 15, 2021) (quoting Moccia v. Saul, 820 F. App’x 69, 70 (2d Cir. 2020)).
“A number of courts have held that relief under Rule 56(d) is generally unavailable when
the summary judgment motion was made after the close of discovery.” Jean-Laurent v.
Lane, No. 911CV00186NAMTWD, 2016 WL 4775742, at *11 (N.D.N.Y. Aug. 18, 2016),
report and recommendation adopted, No. 9:11-CV-0186, 2016 WL 4768828 (N.D.N.Y.
Sept. 13, 2016) (collecting cases).
Indeed, “[t]he decision whether to reopen discovery is within a district court’s
discretion.” Moroughan v. Cnty. of Suffolk, 320 F. Supp. 3d 511, 515 (E.D.N.Y. 2018);
see also Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004) (district court has
“broad discretion to direct and manage the pre-trial discovery process.”). “In deciding
whether to reopen discovery, courts consider whether good cause exists.” Bakalar v.
Vavra, 851 F. Supp. 2d 489, 493 (S.D.N.Y. 2011). The following six-part test is utilized
to assess the request:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether
the non-moving party would be prejudiced, 4) whether the moving party was
diligent in obtaining discovery within the guidelines established by the court,
5) the foreseeability of the need for additional discovery in light of the time
allowed for discovery by the district court, and 6) the likelihood that the
discovery will lead to relevant evidence.
Moroughan, 320 F. Supp. 3d at 515. The party seeking to reopen discovery bears the
burden of establishing good cause. Costa v. Sears Home Improvement Prods., Inc., 178 F.
Supp. 3d 108, 111 (W.D.N.Y. 2016).
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Plaintiff wholly fails to satisfy his burden to establish good cause to reopen
discovery. The instant lawsuit was filed more than three years ago, and the parties have
had ample time and opportunity to conduct discovery in this matter. The deadline to
complete fact discovery, initially set for August 1, 2022, was extended five times ultimately
to January 31, 2024. (See Dkt. 12; Dkt. 20; Dkt. 26; Dkt. 52; Dkt. 56; Dkt. 64). No further
extensions were requested and discovery closed on January 31, 2024. It was only after
Defendants filed their reply papers in support of their pending dispositive motion that
Plaintiff, for the first time, claimed he needed additional discovery—some six months after
Defendants first filed the pending motion. (Dkt. 88).
Plaintiff’s requests for discovery appear wholly unrelated to the pending lawsuit.
Under the heading “Newly Discoverable Evidence” in his declaration supporting the Rule
56(d) motion, Plaintiff provides what appears to be a copy-and-pasted letter from the New
York State Department of Health suspending the certificate of an EMT for one year due to
violations of a prior stipulation and order. (Dkt. 88 at 4-6). Plaintiff also asserts that he is
currently engaged in a Freedom of Information Law (“FOIL”) dispute with the Town of
Lyons regarding EMT reports and that the Town of Lyons is engaged in fraud. (Id. at 78). Neither the Town of Lyons nor any EMT is a defendant in the current lawsuit. Plaintiff
also requests that the Court issue subpoenas for 17 individuals but on their face, none of
them appear to have any relevance to the pending claims. (Id. at 10-11).
In sum, there is no basis for granting Plaintiff’s motion to reopen discovery.7

7

Because the Court has denied Plaintiff’s motions filed at Docket 86 and Docket 88,
it denies as moot Defendants’ motion to reject Plaintiff’s motions. (Dkt. 90).
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III.

Defendants’ Motion for Judgment on the Pleadings and Summary Judgment
A. Legal Standards
1. Judgment on the Pleadings Standard
Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the

pleadings are closed—but early enough not to delay trial—a party may move for judgment
on the pleadings.” Fed. R. Civ. P. 12(c). “The standard for granting a Rule 12(c) motion
for judgment on the pleadings is identical to that for granting a Rule 12(b)(6) motion for
failure to state a claim.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d
Cir. 2021) (internal quotation marks and citation omitted).
“In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the
complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court
should consider the motion by “accepting all factual allegations as true and drawing all
reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund
v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a complaint
must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Turkmen v. Ashcroft, 589 F.3d 542,
546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

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“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
entitle[ment] 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 (internal
quotations and citations omitted). “To state a plausible claim, the complaint’s ‘[f]actual
allegations must be enough to raise a right to relief above the speculative level.’” Nielsen
v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at
555).
2. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the non-moving party, the Court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
“The moving party bears the burden of showing the absence of a genuine dispute as
to any material fact. . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient to carry the
non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
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(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the
moving party has met its burden, the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011)).

The non-moving party “must come forward with specific evidence

demonstrating the existence of a genuine dispute of material fact.” Brown, 654 F.3d at
358. Indeed, “the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (emphasis in original).
3. Section 1983
“Section 1983 itself creates no substantive rights; it provides only a procedure for
redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515,
519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). “To
state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged
conduct (1) was attributable to a person acting under color of state law, and (2) deprived
the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the
United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing
Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).
In addition, with respect to any § 1983 claim, a plaintiff is required to demonstrate
a defendant’s personal involvement in the deprivation of a federal constitutional right.
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Kravitz v. Purcell, 87 F.4th 111, 129 (2d Cir. 2023). “To do so a plaintiff must plead and
prove ‘that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir.
2020) (quoting Iqbal, 556 U.S. at 676).
B. Abandonment
Defendants argue that Plaintiff’s opposition fails to address several of his causes of
action, and thus those claims should be dismissed as abandoned. (Dkt. 84 at 15-16).
“Courts have regularly dismissed claims as abandoned where a plaintiff has failed to
address them in opposing defendant’s dispositive motions.” Brown v. City of New York,
No. 19-CV-03375 (LJL), 2023 WL 4548339, at *4 n.3 (S.D.N.Y. July 14, 2023) (quotation
omitted). “However, where a pro se litigant fails to address every claim in its opposition
to a motion for summary judgment, the Second Circuit has cautioned that ‘[t]he district
court should examine every claim or defense with a view to determining whether summary
judgment is legally and factually appropriate.’” Id. (quoting Jackson v. Fed. Exp., 766
F.3d 189, 198 (2d Cir. 2014)). Accordingly, the Court declines to consider Plaintiff’s
claims abandoned and examines the record before it to determine Defendants’ motion.
C. Defendant Wayne County Sheriff’s Office
Defendants argue that the claims against the Wayne County Sheriff’s Office must
be dismissed because it is merely an administrative arm of Wayne County and therefore
not capable of being sued. (See Dkt. 69-21 at 35).8 Pursuant to Fed. R. Civ. P. 17, New

8

Defendants also argue that Defendant Wayne County District Attorney must also be
dismissed for the same reason. (See Dkt. 69-21 at 35). However, Plaintiff’s claims against
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York law governs an entity’s capacity to be sued. “Under New York Law, a county is a
municipal corporation capable of bringing suit and being sued.” Jackson v. Cnty. of Erie,
No. 17-CV-396S, 2020 WL 5642277, at *4 (W.D.N.Y. Sept. 22, 2020) (citing N.Y. Gen.
Mun. Law § 2). “[D]epartments that are merely administrative arms of a municipality do
not have a legal identity separate and apart from the municipality, and therefore, cannot
sue or be sued.” Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y.
2002). This includes county sheriff’s departments. See, e.g., Long v. Cnty. of Orleans, 540
F. Supp. 3d 344, 350 (W.D.N.Y. 2021). As a result, Plaintiff cannot maintain his claims
against the Wayne County Sheriff’s Office, and it is dismissed as a defendant.
D. Defendant Wayne County District Attorney and ADA John Does
Plaintiff alleges that the Wayne County District Attorney and ADA John Does
prosecuted Plaintiff “[d]espite knowing that the criminal charges were without legal basis,”
(Dkt. 1 at ¶¶ 28, 77), and that the prosecutors withheld body worn camera footage (id. at
¶¶ 71, 79). Defendants argue that any action asserted against Wayne County District
Attorney and ADA John Does is barred by absolute immunity. (Dkt. 69-21 at 35). The
Court agrees.
“The doctrine of absolute immunity applies broadly to shield a prosecutor from
liability for money damages (but not injunctive relief) in a § 1983 lawsuit, even when the
result may be that a wronged plaintiff is left without an immediate remedy.” Anilao v.

the Wayne County District Attorney are against the “individual and employee of Wayne
[County]” rather than against the entire district attorney’s office. (Dkt. 1 at ¶ 11).
Accordingly, Defendants’ request to dismiss Plaintiff’s claims against the Wayne County
District Attorney on this basis is denied.
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Spota, 27 F.4th 855, 863-64 (2d Cir. 2022) (citing Imbler v. Pachtman, 424 U.S. 409, 427
(1976)). The Supreme Court has held that “acts undertaken by a prosecutor in preparing
for the initiation of judicial proceedings or for trial, and which occur in the course of his
role as an advocate for the State, are entitled to the protections of absolute immunity.”
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Indeed, “[p]rosecutors enjoy absolute
immunity from suit under section 1983 in matters associated with their prosecutorial
functions, regardless of motivation.” Bentley v. McNamara, No. 617CV444TJMATB,
2017 WL 2890065, at *3 (N.D.N.Y. Apr. 24, 2017), report and recommendation adopted,
No. 617CV444TJMATB, 2017 WL 2881150 (N.D.N.Y. July 6, 2017); see also Shmueli v.
City of New York, 424 F.3d 231, 238-39 (2d Cir. 2005) (holding that prosecutors were
entitled to absolute immunity from allegations that they “maliciously prosecuted [plaintiff]
for various crimes, all of which they knew she was innocent of committing”). Because the
immunity attaches to the function of the prosecutor, it extends to prosecutors who
“initiat[e] a prosecution,” see Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995)
(citations omitted), “conspir[e] to present false evidence at a criminal trial,” see Dory v.
Ryan, 25 F.3d 81, 83 (2d Cir. 1994), or withhold exculpatory evidence, see Bernard v.
Cnty. of Suffolk, 356 F.3d 495, 503-05 (2d Cir. 2004).
Accepting as true that the Wayne County District Attorney and ADA John Does
withheld body worn camera footage and prosecuted Plaintiff in bad faith, Plaintiff’s
allegations do not overcome absolute prosecutorial immunity. See Shmueli, 424 F.3d at
237 (“A prosecutor is also entitled to absolute immunity despite allegations of . . . the
deliberate withholding of exculpatory information.”); Dory, 25 F.3d at 83 (“[A]bsolute
- 16 -

immunity protects a prosecutor from § 1983 liability for virtually all acts, regardless of
motivation, associated with his function as an advocate.”). Thus, the claims against
Defendant Wayne County District Attorney and ADA John Does are dismissed because
they are entitled to absolute immunity.
E. John Doe Defendants
Plaintiff asserted claims against “John Doe” defendants under § 1983 for false arrest
and an equal protection violation (Dkt. 1 at ¶¶ 33-44), substantive and procedural due
process violations under the U.S Constitution and New York State Constitution (id. at
¶¶ 65-72), malicious prosecution under the Fourth and Fourteenth Amendments (id. at
¶¶ 73-83), and state-law assault and battery claims (id. at ¶¶ 84-96). Defendants argue that
any claim brought against a John Doe, including the Deputy John Does and ADA John
Does, must be dismissed because Plaintiff failed to substitute actual defendants for the John
Does before the statute of limitations ran. (Dkt. 69-21 at 35-36). Plaintiff does not argue
to the contrary. The Court agrees with Defendants and accordingly dismisses any claims
against the unnamed John Does.
“Where a plaintiff names ‘John Doe’ as a placeholder defendant because he does
not know the identity of an individual defendant, he generally is required to replace the
placeholder with a named party within the applicable statute of limitations period.” Ortiz
v. Wagstaff, 523 F. Supp. 3d 347, 360 (W.D.N.Y. 2021) (quotation omitted).

The

applicable statute of limitations for claims under § 1983 is a state’s “general or residual
statute for personal injury actions. . . .” Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d
Cir. 2002) (internal quotation and alterations omitted). In New York, that period is three
- 17 -

years. N.Y. C.P.L.R. § 214(5). This three-year limitations period is also applicable to
constitutional torts brought under the New York State Constitution. Brown v. New York,
250 A.D.2d 314, 318-19 (3d Dep’t 1998). The events outlined by Plaintiff in his complaint
occurred on August 29, 2020. (Dkt. 1 at ¶ 16). Accordingly, the limitations period for
Plaintiff’s equal protection, procedural due process, and substantive due process claims
terminated on August 29, 2023. The limitations period for Plaintiff’s false arrest claim
also terminated on August 29, 2023.9
“[T]he applicable statute of limitations for a malicious prosecution claim is
borrowed from the statute of limitations for the analogous claim under the law of the state
where the cause of action accrued. . . .” Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017)
(citations omitted). New York law provides a one-year limitations period for malicious
prosecution claims. N.Y. C.P.L.R. 215(3). However, New York federal and state courts
have generally recognized that New York General Municipal Law § 50-i applies to causes
of action brought against a municipality’s employees or officers who the municipality must
indemnify, which provides a claimant one year and ninety days after the claim accrues to
file suit. See Rentas v. Ruffin, 816 F.3d 214, 226 (2d Cir. 2016); Conte v. County of Nassau,
596 F. App’x 1, 5 (2d Cir. 2014) (summary order) (noting that New York’s General

9

Plaintiff was arrested and arraigned on August 29, 2020. (Dkt. 69-16 at 1). Thus,
the false arrest claim accrued on August 29, 2020, and ran three years later on August 29,
2023. See Ying Li v. City of New York, 246 F. Supp. 3d 578, 601 (E.D.N.Y. 2017) (“Under
federal law, a Section 1983 false arrest claim accrues at the time that the alleged false arrest
ends, i.e., when the arrestee ‘becomes held pursuant to [legal] process—when, for example,
he is bound over by a magistrate or arraigned on charges.” (quoting Wallace v. Kato, 549
U.S. 384, 389 (2007) (alteration in original)).
- 18 -

Municipal Law § 50-i “takes precedence” in suits against a municipality’s officers “if the
municipality is required to indemnify the defendant”). “The obligation to indemnify in
turn depends upon the resolution of the fact-sensitive question of whether [the individual
defendants] were acting within the scope of their employment . . . in committing the alleged
tortious acts.” Conte, 596 F. App’x at 5 (quoting Int’l Shared Servs., Inc. v. Cnty. of
Nassau, 222 A.D.2d 407, 408 (2d Dep’t 1995)).
For the purpose of this limited analysis, the determination of whether the John Doe
defendants were acting within the scope of employment is not determinative as both
limitation periods under C.P.L.R. 215(3) and New York General Municipal Law § 50-i
have lapsed. “[I]n malicious prosecution suits under Section 1983, the statute of limitations
begins to run when the prosecution terminates in the plaintiff’s favor.” Spak, 857 F.3d at
462 (2d Cir. 2017) (internal quotation omitted). Plaintiff’s criminal prosecution in this
matter was terminated in his favor on August 11, 2021. (Dkt. 69-16 at 1). Applying the
more generous limitations period of one year and ninety days under New York’s General
Municipal Law § 50-i, the limitation period for Plaintiff’s malicious prosecution claim
ended on November 9, 2022.
Finally, Plaintiff’s state-law claims against the John Doe defendants are subject to
a similar analysis as the malicious prosecution claim. N.Y. C.P.L.R. 215(3) also provides
a one-year statute of limitations for assault and battery. As explained above, the limitations
period is one-year and ninety-days if Wayne County is required to indemnify the individual
John Doe defendants. See Rentas, 816 F.3d at 226; N.Y. Gen. Mun. Law § 50-i. The
alleged assault and battery occurred on August 29, 2020. (Dkt. 1 at ¶¶ 16, 21; Dkt. 69-20
- 19 -

at ¶¶ 4, 12). Applying the one-year and ninety-day period set forth in New York’s General
Municipal Law § 50-i, the limitation period for Plaintiff’s assault and battery claims ended
on November 27, 2021.
Thus, the statute of limitation has run on all claims asserted against the John Doe
defendants. Because Plaintiff failed to substitute actual defendants for the John Does
before the limitations period ended, his claims against the John Does must be dismissed.
F. Fifth Amendment Claims
In Plaintiff’s first cause of action, he alleges, in part, that Defendant Wayne County,
Deputy D’Amato, and Deputy Scribner violated his Fifth Amendment equal protection and
due process rights. (Dkt. 1 at ¶¶ 34-35, 40). “It is well-established that ‘the Fifth
Amendment appl[ies] to and restrict[s] only the Federal Government.’” Griffin v. City of
New York, 880 F. Supp. 2d 384, 404 (E.D.N.Y. 2012) (quoting Pub. Utils. Comm’n of D.C.
v. Pollak, 343 U.S. 451, 461 (1952)) (alterations in original). Plaintiff has not alleged that
any of the defendants are federal employees or otherwise subject to the Fifth Amendment.
Accordingly, Plaintiff’s Fifth Amendment claims are dismissed.
G. False Arrest
Plaintiff’s first cause of action asserts, in part, a § 1983 claim for false arrest. (Dkt.
1 at ¶ 34). Defendants argue that Plaintiff’s false arrest claim must be dismissed because
Defendants had probable cause to arrest him. The Court disagrees that the presence of
probable cause can be resolved as a matter of law.
“A § 1983 claim for false arrest is substantially the same as a claim for false arrest
under New York law.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013)
- 20 -

(citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). Under New York law, a plaintiff
asserting a false arrest claim must prove that “(1) the defendant intended to confine the
plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent
to the confinement and (4) the confinement was not otherwise privileged.” Liranzo v.
United States, 690 F.3d 78, 95 (2d Cir. 2012) (emphasis and quotation omitted). “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 under § 1983.”
Gonzalez, 728 F.3d at 155 (quoting Weyant, 101 F.3d at 852).
1. Probable Cause
Defendants argue that Deputy D’Amato and Deputy Scribner had probable cause to
arrest Plaintiff based, in part, on Deputy D’Amato’s observations of “plaintiff’s driving,
odor of alcoholic beverage, and impaired speech. . . . ” (Dkt. 69-21 at 16).10 Indeed, when
Plaintiff asks why he is being arrested, Deputy D’Amato tells him multiple times he is
being arrested for driving while intoxicated. (Dkt. 69-6 (D’Amato) at 4:51-5-45; Dkt. 6920 at ¶ 36). Defendants produced multiple forms of admissible evidence that corroborate
Deputy D’Amato’s account, including his sworn declaration (Dkt. 69-11), Defendant’s
710.30 Notice (Dkt. 69-17), and the Subject Resisting Report (Dkt. 69-8). Each of these
forms of evidence is based on Deputy D’Amato’s own account. There were no other

10

Defendants also argue that Plaintiff’s “screening test refusal, chemical test refusal .
. . his resistance to apprehension” and “the presence of marijuana [in the white vehicle]
contributed to the defendants’ probable cause.” (Dkt. 69-21 at 16). However, the record
does not support the conclusion that those factors were known to Defendant D’Amato at
the time he arrested Plaintiff.
- 21 -

officers present with Deputy D’Amato when he saw the white vehicle allegedly speeding
or when he followed it to the residential lawn. Deputy Scribner arrived after Deputy
D’Amato handcuffed Plaintiff and escorted him to his police vehicle. (Dkt. 69-12 at ¶¶ 78). Defendants concede that Deputy Scribner was involved in Plaintiff’s arrest. (Dkt. 6921 at 16).
Plaintiff rejects Deputy D’Amato’s account and contends that he was not driving
the vehicle prior to his arrest. (Dkt. 81 at 6, 8; Dkt. 1 at ¶¶ 16-19). While Plaintiff did not
produce or point to any admissible evidence to support this argument in his opposition to
the summary judgment motion, the Court may consider Plaintiff’s verified complaint,
which was sworn under penalty of perjury and notarized, as an affidavit for the purpose of
the summary judgment motion. See Brandon v. Kinter, 938 F.3d 21, 26 n.5 (2d Cir. 2019)
(“[The plaintiff’s] Amended Complaint was sworn under penalty of perjury. Therefore,
his allegations in the complaint can be considered as evidence for summary judgment
purposes.”); Bailey v. Weckesser, No. 18-CV-6292-FPG, 2021 WL 5086394, *1 n.2
(W.D.N.Y. Nov. 2, 2021) (“The Court may consider the allegations in [the plaintiff’s]
complaint as evidence because he signed the complaint under penalty of perjury.”). In his
complaint, Plaintiff states that he “was a lawful pedestrian and was not operating a motor
vehicle at the time of [Deputy] D’Amato and [Deputy] Scribner[’s] unlawful seizure.”
(Dkt. 1 at ¶ 17). Plaintiff’s account that he was a lawful pedestrian conflicts with Deputy
D’Amato’s account that he was driving. Viewing Plaintiff’s argument in a light most
favorable to him as the non-moving party, the Court concludes that he raises a dispute as
to a material fact, i.e. whether Deputy D’Amato saw Plaintiff driving the white vehicle and
- 22 -

had probable cause to arrest him and indeed, whether Plaintiff was even driving the vehicle
prior to his apprehension.
The body worn camera video produced by Defendants is not helpful in settling this
dispute. Deputy D’Amato’s body worn camera video begins when he is already out of his
police vehicle and ordering Plaintiff to lie on the ground. (Dkt. 69-6 (D’Amato) at 0:010:09). When the video starts, Plaintiff is standing far away from the white vehicle. (Id.).
Essentially, the record shows two competing accounts of what happened before Deputy
D’Amato’s body worn camera video begins. A reasonable juror could choose to accept
Plaintiff’s testimony over that of Deputy D’Amato, and conclude that Plaintiff was not
driving the vehicle—thus negating probable cause for the arrest. See, e.g., Garnett v. City
of New York, No. 1:13-CV-7083-GHW, 2014 WL 3950904, at *9 (S.D.N.Y. Aug. 13,
2014) (denying summary judgment on false arrest claim where officer’s account of the
plaintiff’s involvement in drug transaction differed from the version provided by the
plaintiff).
2. Qualified Immunity
Defendants argue that Deputy D’Amato and Deputy Scribner are entitled to
qualified immunity on Plaintiff’s false arrest claim as a matter of law even if the facts do
not definitely establish probable cause. (Dkt. 69-21 at 16-17). The Court denies summary
judgment regarding qualified immunity for Deputy D’Amato, but grants summary
judgment in favor of Deputy Scribner finding that he is entitled to qualified immunity.
“Qualified immunity ‘shields officers from civil liability so long as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable
- 23 -

person would have known.’” Singletary v. Allen, 588 F. Supp. 3d 359, 371 (W.D.N.Y.
2022) (quoting City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021)). To constitute a clearly
established right, courts look at prior precedent to determine whether is “it is ‘sufficiently
clear that every reasonable official would have understood that what he is doing violates
that right.’” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (quoting Mullenix v. Luna,
577 U.S. 7, 11 (2015)).
“Without a doubt, the right not to be arrested without probable cause is clearly
established.” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000). In the false arrest
context, an officer will still be entitled to qualified immunity if “arguable probable cause”
existed. Cerrone v. Brown, 246 F.3d 194, 202-03 (2d Cir. 2001). “Arguable probable
cause exists if either (a) it was objectively reasonable for the officer to believe that probable
cause existed, or (b) officers of reasonable competence could disagree on whether the
probable cause test was met.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quotation
omitted).
As outlined above, there is a dispute of material fact regarding whether Deputy
D’Amato had probable cause to arrest Plaintiff. Because of this dispute, the Court cannot
conclude that it was objectively reasonable for Deputy D’Amato to believe that probable
cause existed. Similarly, based on the current record, the Court cannot say that officers of
reasonable competence could find that there was probable cause for Deputy D’Amato to
arrest Plaintiff. In other words, if as Plaintiff claims, Deputy D’Amato did not observe him
operating the vehicle, then it would have been unreasonable as a matter of law for him to
arrest Plaintiff. No reasonable officer could conclude otherwise.
- 24 -

However, a different outcome is required for Deputy Scribner. By the time Deputy
Scribner arrived at the Glasgow Street address, Plaintiff was already in handcuffs and
standing with Deputy D’Amato at the rear driver’s side door of Deputy D’Amato’s patrol
vehicle, refusing to comply with his directions to get into the vehicle. (Dkt. 69-12 at ¶¶ 67). Deputy Scribner did not observe any of the underlying disputed facts regarding the
vehicle chase. At the time Deputy Scribner arrived at the Glasgow Street address, it was
objectively reasonable for Deputy Scribner to believe that Deputy D’Amato had probable
cause to arrest Plaintiff based on the circumstances confronting him at the scene when he
arrived. See Guerrero v. Scarazzini, 274 F. App’x 11, 13 (2d Cir. 2008) (summary order)
(holding that officers were entitled to qualified immunity based on arguable probable cause
as the plaintiff “was lying on the ground in handcuffs, having already been apprehended
by other members of [law enforcement]” when the defendant officers arrived on the scene).
In other words, even construing the facts in the light most favorable to Plaintiff, at best
Deputy Scribner was mistaken as to the existence of probable cause to arrest Plaintiff,
based on the situation he confronted when arriving at the scene. See McMahon v. Judkins,
No. 3:22-CV-00613 (SVN), 2024 WL 21653, at *7 (D. Conn. Jan. 2, 2024) (“[I]n situations
where an officer may have reasonably but mistakenly concluded that probable cause
existed, the officer is nonetheless entitled to qualified immunity.”). As a result, the Court
grants summary judgment dismissing Plaintiff’s false arrest claim against Deputy Scribner,
finding that he is entitled to qualified immunity as a matter of law. Plaintiff’s claim against
Deputy D’Amato may proceed to trial.

- 25 -

H. Malicious Prosecution
Plaintiff asserts a § 1983 malicious prosecution claim against all Defendants. (Dkt.
1 at ¶¶ 73-83). To prevail on a § 1983 claim for malicious prosecution, “a plaintiff must
show a violation of his rights under the Fourth Amendment, and must establish the
elements of a malicious prosecution claim under state law.” Manganiello v. City of New
York, 612 F.3d 149, 160-61 (2d Cir. 2010) (internal citations omitted). To establish the
elements of a malicious prosecution claim under New York law, a plaintiff must
demonstrate that: “(1) the defendant initiated a prosecution against plaintiff, (2) without
probable cause to believe the proceeding can succeed, (3) the proceeding was begun with
malice, and (4) the matter terminated in plaintiff’s favor.” Rentas, 816 F.3d at 220 (2d Cir.
2016). In addition, a plaintiff must show that there was “a sufficient post-arraignment
liberty restraint to implicate the plaintiff’s Fourth Amendment rights.” Rohman v. N.Y.C.
Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000).
To demonstrate that a proceeding was begun with malice, Plaintiff must show that
the “prosecution complained of was undertaken from improper or wrongful motives, or in
reckless disregard of [his rights].” Manganiello, 612 F.3d at 163-64 (quoting Pinsky v.
Duncan, 79 F.3d 306, 313 (2d Cir. 1996)). A “lack of probable cause generally creates an
inference of malice.” Id. (quotation omitted). “The probable cause determination relevant
to a malicious prosecution claim differs from that relevant to a false arrest claim, and the
two determinations play different roles in the two causes of action.” Mejia v. City of New
York, 119 F. Supp. 2d 232, 254 (E.D.N.Y. 2000). “[I]n a malicious prosecution action, the
relevant probable cause determination is whether there was probable cause to believe the
- 26 -

criminal proceeding could succeed and, hence, should be commenced.” Id. (citation
omitted). Therefore, “the existence, or lack, of probable cause is measured at a different
point in time in a malicious prosecution action than a false arrest action, where the
prosecution follows a warrantless arrest.” Id. In a malicious prosecution action, “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 preceding warrantless arrest.” Id. (citation omitted).
Accordingly, “information discovered . . . after the arrest, but before the commencement
of proceedings, is relevant to the determination of probable cause in” a malicious
prosecution claim. Id.
Here, the judicial proceedings commenced the same night that Plaintiff was arrested.
(Dkt. 69-5). Plaintiff’s criminal charges were terminated in his favor when they were
dismissed. (Dkt. 69-21 at 13; Dkt. 69-16).11 Defendants argue that Plaintiff’s malicious

11

Defendants argue that they are entitled to qualified immunity on Plaintiff’s
malicious prosecution claim because Plaintiff’s charges were dismissed in the interest of
justice. (Dkt. 69-21 at 31-32). Defendants contend:
[P]laintiff obtained a dismissal due to a lack of speedy trial. This is not a
clearly established affirmative indication of innocence. Qualified immunity
applies as the Supreme Court’s ruling in Thompson v. Clark (142 S. Ct. 1332)
was issued in 2022 prior to the involved 2020 arrest. The qualification for a
favorable termination of a criminal proceeding was not clearly established in
2020.

(Id.). Defendants appear to conflate the requirement that a right be clearly established for
purposes of the qualified immunity analysis, and the development of the law as to what a
plaintiff must establish to prove the elements of a malicious prosecution claim. The
Supreme Court held in Thompson v. Clark that “a Fourth Amendment claim under § 1983
for malicious prosecution does not require the plaintiff to show that the criminal
prosecution ended with some affirmative indication of innocence. A plaintiff need only
show that the criminal prosecution ended without a conviction.” 596 U.S. 36, 49 (2022).
- 27 -

prosecution claim should be dismissed because there was probable cause to arrest Plaintiff.
(Dkt. 69-21 at 30-31). But because there is an issue of fact as to whether Plaintiff was
operating the vehicle and whether there was probable cause to arrest Plaintiff, an issue of
fact also exists as to whether there was probable cause to believe the criminal proceeding
against Plaintiff could succeed.12 Thus, a reasonable jury could find in favor of Plaintiff’s
malicious prosecution claim against Deputy D’Amato, but because the record does not
support a finding that Deputy Scribner was personally involved in the prosecution,
summary judgment is granted in favor of Deputy Scribner. See Kravitz, 87 F.4th at 129;
Tangreti, 983 F.3d at 618.
And on this record, the Court cannot conclude that Deputy D’Amato is entitled to
qualified immunity on the malicious prosecution claim. “Similar to a false arrest claim, a
police officer likewise is entitled to qualified immunity on a malicious prosecution claim
if there was arguable probable cause at the time the criminal proceeding commenced and

This holding did not alter the scope of qualified immunity. Rather, it dealt with what a
Plaintiff must prove in terms of favorable termination of a criminal proceeding to establish
the elements of a malicious prosecution claim.
12

Although not raised by Defendants, the additional charges against Plaintiff outside
the vehicle and traffic law violations, do not alter the analysis. First, if Plaintiff was not
operating the vehicle, that would also call into question any finding of probable cause
related to the marijuana in the vehicle (which was owned by “EAN Holdings, LLC” (see
Dkt. 69-19)), and the record is not clear as to the basis for the obstruction of government
administration charge. Second, even if some of the charges against Plaintiff were valid,
that will not defeat a Fourth Amendment malicious prosecution claim if at least some of
the charges lacked probable cause. Chiaverini v. City of Napoleon, 602 U.S. 556, 558-59
(2024) (“Do the valid charges insulate the official from a Fourth Amendment maliciousprosecution claim relating to the invalid charge? The answer is no: The valid charges do
not create a categorical bar.”).
- 28 -

continued.”

Reeder v. Vine, No. 6:20-CV-06026 EAW, 2023 WL 2044126, at *9

(W.D.N.Y. Feb. 16, 2023) (quotation and alteration omitted). As with Plaintiff’s false
arrest claim, whether Deputy D’Amato had probable cause is a disputed material fact that
precludes the Court from ruling that Deputy D’Amato is entitled to qualified immunity as
a matter of law. See Jackson v. City of New York, 939 F. Supp. 2d 235, 256-57 (E.D.N.Y.
2013) (holding on summary judgment motion that defendant officers were not entitled to
qualified immunity on false arrest and malicious prosecution claims where there was a
dispute as to whether the defendants had probable cause to arrest the plaintiff).
I. Excessive Force
Plaintiff alleges that Deputy D’Amato and Deputy Scribner used excessive force
during his arrest because they “assaulted Plaintiff and smashed Plaintiff’s head on top of
the [p]olice cruiser.” (Dkt. 1 at ¶¶ 46-47). Defendants contend that only reasonable force
was used in the arrest. (Dkt. 69-21 at 23). On the record before it, the Court cannot resolve
whether the force used was objectively unreasonable as a matter of law. Similarly, issues
of fact preclude a finding that either Deputy D’Amato or Deputy Scribner are entitled to
qualified immunity.
“The Fourth Amendment, which protects against unreasonable seizures, governs a
claim that excessive force was used in connection with an arrest.” Mickle v. Morin, 297
F.3d 114, 120 (2d Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 388, 391-95 (1989)).
“Claims that police officers used excessive force during an arrest are analyzed under the
Fourth Amendment’s reasonableness standard.” Brooks v. Whiteford, 384 F. Supp. 3d 365,
369 (W.D.N.Y. 2019) (citing Graham, 490 U.S. at 395). “In order to establish a Fourth
- 29 -

Amendment excessive-force claim, the plaintiff must show that the actions of the arresting
officer were objectively unreasonable in light of the surrounding circumstances.” Id.
(citing Graham, 490 U.S. at 395). “This inquiry is fact specific and requires ‘balancing
the nature and quality of the intrusion on the plaintiff’s Fourth Amendment interests against
the countervailing governmental interests at stake.’” Jackson v. City of New York, 939 F.
Supp. 2d 235, 253 (E.D.N.Y. 2013) (quoting Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir.
2010)).
The body worn camera video from the three deputies present when Deputy
D’Amato and Deputy Scribner forced Plaintiff into the back of the police vehicle does not
show Deputy D’Amato and Deputy Scribner “smashing Plaintiff’s head on the patrol car,”
as alleged by Plaintiff, (see Dkt. 1 at ¶ 21). When Plaintiff is forced into the police vehicle,
Deputy D’Amato’s body worn camera appears to be knocked to the ground during the
altercation and only shows black. (Dkt. 69-6 (D’Amato) at 9:48-10:25). Deputy Scribner’s
body worn camera also does not clearly show what happened as he assisted Deputy
D’Amato force Plaintiff into the police vehicle. (Id. (Scribner) at 2:14-2:23). Deputy
Munzert’s body worn camera is similarly unhelpful because as he reaches through the rear
passenger side of the vehicle to pull Plaintiff into the vehicle, the camera only shows the
rear seat and vehicle doorway. (Id. (Munzert) at 1:06-1:17).
Before Deputy D’Amato and Deputy Scribner forced Plaintiff into the police
vehicle, Plaintiff persistently refused Deputy D’Amato’s instructions to get in the vehicle
for approximately five minutes. (Id. (D’Amato) at 4:50-9:48). Early in this exchange,
Plaintiff asked what he is being arrested for and Deputy D’Amato told him it was for
- 30 -

driving while intoxicated. (Id. (D’Amato) at 4:50-5:30). Plaintiff said he was not driving
and asked to be read his Miranda rights. (Id. (D’Amato) at 5:39-5:50). Deputy D’Amato
grabbed Plaintiff’s jacket and told him to “stop fucking around and get in the car.” (Id.
(D’Amato) at 5:54-5:57). Plaintiff repeated that he is not going to get in the police car.
(Id. (D’Amato) at 5:56-6:08). Deputy D’Amato asked Plaintiff to sit in the police car and
Plaintiff continued to refuse. (Id. (D’Amato) at 6:20-6:30). Deputy D’Amato then
answered a series of Plaintiff’s questions, explaining that he is under arrest for driving
while intoxicated. (Id. (D’Amato) at 6:40-6:50). Deputy D’Amato warned Plaintiff that
he will “throw” Plaintiff into the car if he did not get into the vehicle. (Id. (D’Amato) at
6:52-6:56). Plaintiff continued to refuse to get in the vehicle and Deputy D’Amato warned
him again that he will “throw” him into the car. (Id. (D’Amato) at 8:30-8:36). Deputy
D’Amato grabbed Plaintiff and tried to put him in the car. (Id. (D’Amato) at 8:45-8:50).
Plaintiff asked a third-party bystander to come closer and Deputy D’Amato told the
bystander to “stay right there.” (Id. (D’Amato) at 8:46-8:51). Plaintiff called Deputy
D’Amato a “bitch.” (Id. (D’Amato) at 9:26-9:29). At the end of the standoff, Plaintiff
asked, “So what are you going to do?” and Deputy D’Amato responds, “I’m going to put
you in the car.” (Id. (D’Amato) at 9:44-9:45). Plaintiff told Deputy D’Amato, “Put me in
the fucking car.” (Id. (D’Amato) at 9:45-9:47). At that point, Deputy D’Amato’s body
worn camera appears to be knocked to the ground. Plaintiff was handcuffed with his hands
behind his back throughout the entire altercation.
It is clear from the body worn camera video that Plaintiff consistently refused to get
in the police vehicle after being told several times that he was under arrest and was
- 31 -

instructed to get into the vehicle. (Id. (D’Amato) at 4:50-9:48). The body worn camera
video does not conclusively show how Plaintiff was forced into the vehicle. In his
complaint, Plaintiff alleges that his head was smashed on top of the patrol car. (Dkt. 1 at
¶¶ 21, 47). Defendants’ sworn affidavits submitted in support of the summary judgment
motion paint a much gentler picture. (See Dkt. 69-11; Dkt. 69-12; Dkt. 69-13). Deputy
D’Amato states that he “placed [Plaintiff] inside the squad car by physically pushing him
inside.” (Dkt. 69-11 at ¶ 15). Deputy Scribner states that he “assisted Deputy D’Amato
in guiding [Plaintiff] into the backseat.” (Dkt. 69-12 at ¶ 9). Deputy Munzert similarly
states that he observed “Deputy D’Amato then guide[] [Plaintiff] into the driver side
backseat.”
Although Plaintiff need not show “a certain quantum of injury to establish a Fourth
Amendment excessive force claim,” Brooks, 384 F. Supp. 3d at 369, “it is relevant because
it is probative of the amount and type of force actually used by the arresting officers,”
Rolkiewicz v. City of New York, 442 F. Supp. 3d 627, 644 (S.D.N.Y. 2020) (quotation
omitted). Plaintiff alleged that the night of his arrest he had a “swollen soft ball size bump
on the right side of [his] head. . . .” (Dkt. 1 at ¶ 88). Generally, “[i]njuries held to be de
minimis for purposes of defeating excessive force claims include short-term pain, swelling,
and bruising. . . .” Lemmo v. McKoy, No. 08-CV-4264 RJD, 2011 WL 843974, at *5
(E.D.N.Y. Mar. 8, 2011) (citing Richardson v. New York City Health and Hospitals Corp.,
05 Civ. 6278, 2009 WL 804096, at *10 (S.D.N.Y. Mar. 25, 2009)). However, courts have
permitted excessive force claims to proceed where the injury caused was not permanent or
severe. See e.g., Maxwell v. City of New York, 380 F.3d 106, 108-09 (2d Cir. 2004),
- 32 -

supplemented, 108 F. App’x 10 (2d Cir. 2004) (overturning district court’s determination
that the plaintiff’s injury was “insufficiently serious” for her excessive force claim where
she “allegedly scraped her head when being shoved into the car”); Robison v. Via, 821 F.2d
913, 924 (2d Cir. 1987) (“[A defendant] pushed [the plaintiff] up against the door and
yanked [her] out, and threw [her] up against the fender . . . . causing bruises that lasted a
[c]ouple weeks, maybe.”) (quotations omitted); but see Brooks, 384 F. Supp. 3d. at 368-70
(holding that the plaintiff’s allegation that he was “tossed . . . into the police car where
Plaintiff hit his head, shoulder and back” was not enough to survive summary judgment on
his excessive force claim). Neither party has submitted any further proof of Plaintiff’s
injuries or lack of injuries.
Based on this record, the Court cannot hold as a matter of law that Deputy D’Amato
and Deputy Scribner’s actions were “‘objectively reasonable’ in light of the facts and
circumstances facing [them],” see Graham, 490 U.S. at 397. The body worn camera video
is inconclusive and the parties present conflicting accounts regarding the level of force
applied. Although Plaintiff refused to get into the police vehicle for several minutes, he
was handcuffed throughout the encounter and otherwise complied with Deputy D’Amato’s
initial direction to get on the ground. If, as Plaintiff contends, his head was “smashed” into
the patrol car, a reasonable jury could conclude that the amount of force violated Plaintiff’s
Fourth Amendment rights. Furthermore, as discussed above, there is a dispute of material

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fact regarding whether Deputy D’Amato had probable cause to arrest Plaintiff in the first
place.13
Defendants also argue that “[s]ummary judgment is warranted as to plaintiff’s
excessive force claims [against Deputy D’Amato and Deputy Scribner] because of the
doctrine of qualified immunity.” (Dkt. 69-21 at 23). In this regard, Defendants contend
that because Plaintiff “attempted to run from the police first through a car chase and then
on foot,” (id. at 24), qualified immunity protects the officers from any excessive force
claim. But as discussed above, there are genuine issues of material fact as to whether
Plaintiff was even operating the vehicle that Deputy D’Amato attempted to apprehend.
And as also discussed above, the video evidence does not shed light on the degree of force,
if any, used when forcing Plaintiff into the police vehicle. Similarly, the extent of
Plaintiff’s injuries, if any, remains unclear based on the current record.
“[I]t [is] well established that the use of excessive force in the course of an arrest is
constitutionally prohibited and ‘proper application [of the Fourth Amendment’s objective
reasonableness test] requires careful attention to the facts and circumstances of each
particular case. . . .’” Mickle, 297 F.3d at 122 (2d Cir. 2002) (internal citation omitted)
(quoting Graham, 490 U.S. at 396-97 (1989)). “Where the circumstances are in dispute,

13

Although “[w]hether probable cause for the arrest existed is not dispositive of an
excessive-force claim,” see Ivery v. Baldauf, 284 F. Supp. 3d 426, 437 (W.D.N.Y. 2018)
(citing Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 428 (2017)), the disputed facts
underlying the arrest are relevant to understanding whether the force used by the deputies
was “objectively reasonable in light of the facts and circumstances confronting them,” see
Graham, 490 U.S. at 397. Accepting Plaintiff’s version of events, a reasonable jury may
find that the force used by the deputies was objectively unreasonable under the
circumstances. See Maxwell, 380 F.3d at 108-09.
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and ‘contrasting accounts present factual issues as to the degree of force actually employed
and its reasonableness,’ a defendant is not entitled to judgment as a matter of law on a
defense of qualified immunity.” Id. (quoting Kerman v. City of New York, 261 F.3d 229,
239 (2d Cir. 2001); see also Curry v. City of Syracuse, 316 F.3d 324, 334-35 (2d Cir. 2003)
(“Because summary judgment based either on the merits or on qualified immunity requires
that no dispute about material factual issues remain, the district court erred by entering
summary judgment in favor of [the defendant].”). While “the right to make an arrest
accompanies with it the right to use some degree of physical coercion,” Esmont v. City of
New York, 371 F. Supp. 2d 202, 214 (E.D.N.Y. 2005) (citing Graham, 490 U.S. at 396),
the amount of physical coercion and force used cannot be resolved on the current record.
Thus, the Court denies summary judgment in favor of either Deputy D’Amato or Deputy
Scribner on the excessive force claim.
J. Equal Protection
Plaintiff’s first cause of action also asserts an equal protection claim. (Dkt. 1
at ¶ 34). Because Plaintiff failed to allege a similarly situated person who was treated
differently, the Court dismisses his equal protection claim.
“The Equal Protection Clause of the Fourteenth Amendment requires the
government to treat all similarly situated individuals alike.” Young v. Suffolk Cnty., 705 F.
Supp. 2d 183, 204 (E.D.N.Y. 2010) (citing City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 439 (1985)). Plaintiff does not allege a violation of equal protection due to
membership in a protected group or class. Nevertheless, “an individual not alleging
invidious discrimination on the basis of membership in some group may [still] prevail on
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an equal protection claim under the ‘class of one’ theory. . . .” Id. at 204-05 (citing Vill. of
Willowbrook v. Olech, 528 U.S. 562 (2000)). “Under a ‘class of one’ equal protection
claim, a plaintiff must allege that (1) ‘[he] has been intentionally treated differently from
others similarly situated’ and (2) ‘there is no rational basis for the difference in treatment.’”
Id. at 205 (quoting Vill. of Willowbrook, 528 U.S. at 564). Plaintiff does not allege a
similarly situated individual in his complaint to support his equal protection claim.
Therefore, Plaintiff’s equal protection claim fails and is accordingly dismissed.
K. Substantive Due Process
In his substantive due process claim, Plaintiff alleges that Defendants Wayne
County, Deputy D’Amato, Deputy Scribner, and Deputy John Does “trumped up” false
charges intended to cover up their alleged excessive force and assault. (Dkt. 1 at ¶ 66). He
contends that “[a]s a result of his arrest, Plaintiff was denied his substantive rights under
the United States Constitution and the New York State Constitution.” (Id. at ¶ 67).
“Substantive due process protects individuals against government action that is
arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against
government action that is ‘incorrect or ill-advised.’” Lowrance v. Achtyl, 20 F.3d 529, 537
(2d Cir. 1994) (internal quotations and citations omitted). “To establish a violation of
substantive due process rights, a plaintiff must demonstrate that the state action was ‘so
egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’”
Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 431 (2d Cir. 2009)
(quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)).

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“Because the Fourth Amendment provides the source for a claim under Section
1983 premised upon an allegedly false arrest, false imprisonment, or malicious
prosecution, plaintiffs cannot state a substantive due process claim against defendants
based on such conduct.” Jackson ex rel. Jackson v. Suffolk Cnty., 87 F. Supp. 3d 386, 399
(E.D.N.Y. 2015); see Green-Page v. United States, No. 1:20-CV-00837, 2024 WL
3584194, at *13 (W.D.N.Y. July 30, 2024) (dismissing substantive due process claim
because the claim could be characterized as a violation of the Fourth Amendment).
Here, Plaintiff’s substantive due process claim is based solely on his Fourth
Amendment claims for false arrest and excessive force. (Dkt. 1 at ¶¶ 66-67). Accordingly,
Plaintiff’s substantive due process claims are dismissed. See Ying Li, 246 F. Supp. 3d at
633 (dismissing the plaintiff’s substantive due process claim where it was “subsumed by
all of her other Section 1983 claims”).
L. Procedural Due Process
In his procedural due process claim, Plaintiff makes two allegations regarding
purported violations of his procedural rights. First, Plaintiff claims without explanation or
elaboration that his procedural rights were violated as a result of his arrest. (Dkt. 1 at ¶ 70).
Second, he alleges that Wayne County Sheriff’s Office, the Wayne County District
Attorney, and ADA John Does withheld Deputy D’Amato’s body worn camera video
footage, thereby violating his procedural rights. (Dkt. 1 at ¶ 71).
The Fourteenth Amendment to the United States Constitution provides in part that
“[n]o State shall . . . deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1. To plead a violation of procedural due process, “a
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plaintiff must first identify a property right, second show that the government has deprived
him of that right, and third show that the deprivation was effected without due process.”
J.S. v. T’Kach, 714 F.3d 99, 105 (2d Cir. 2013) (internal quotation and citation omitted)
First, Plaintiff’s mere conclusory allegation that his arrest denied him his procedural
rights is insufficient to maintain a procedural due process claim. See Cifarelli v. Village of
Babylon, 93 F.3d 47, 51 (2d Cir. 1996)) (“[M]ere conclusory allegations, speculation or
conjecture will not avail a party resisting summary judgment.”). Defendants argue that
Plaintiff was afforded all process that he was due and cite to Plaintiff’s successful dismissal
of the criminal charges. (Dkt. 69-21 at 29; Dkt. 69-16). Plaintiff neither produced nor
points to any evidence to indicate what process was denied to him other than his mere sayso. Moreover, like Plaintiff’s substantive due process claim, his procedural due process
claim is encompassed by his Fourth Amendment claims. Oudekerk v. Lehoisky, No. 1:24CV-0311 (AMN/TWD), 2024 WL 1693850 at *6 (N.D.N.Y. Apr. 19, 2024), report and
recommendation adopted, No. 1:24-CV-0311 (AMN/TWD), 2024 WL 3385014
(N.D.N.Y. July 12, 2024) (“Because Plaintiff's due process claims are merely duplicative
of his other claims that are explicitly covered by the Fourth Amendment, he cannot bring
an additional claim for violation of his right to substantive or procedural due process under
the Fourteenth Amendment.”).
Second, the Court construes Plaintiff’s allegation that certain Defendants withheld
body worn camera video as an alleged Brady violation. “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
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State, either willfully or inadvertently; and prejudice must have ensued.” Ying, 246 F.
Supp. 3d at 627 (quoting Fappiano v. City of New York, 640 Fed. App’x 115, 118 (2d Cir.
2016)). “To establish prejudice, a plaintiff must show the evidence was material; i.e.,
whether the evidentiary suppression undermines confidence in the outcomes of the trial.”
Id. (quoting, Fappiano, 640 Fed. App’x at 118). As noted above, Plaintiff’s criminal
charges in the underlying matter were dismissed and therefore he suffered no prejudice
from the alleged Brady violation. (See Dkt. 69-16). Furthermore, as discussed above,
Plaintiff is unable to maintain this cause of action against each of the Defendants identified
in the complaint. Wayne County Sheriff’s Office is not an entity capable of being sued,
and Wayne County District Attorney and ADA John Does are shielded by absolute
immunity for conduct taken within the scope of their prosecutorial function. The Court
therefore dismisses Plaintiff’s procedural due process claims.
M. Monell Liability
Plaintiff asserts several claims against Defendant Wayne County, including a
freestanding Monell claim. (See Dkt. 1).14 Defendants argue that Plaintiff failed to

14

Although Plaintiff’s third cause of action purports to be a freestanding Monell claim,
“Monell does not provide an independent separate cause of action against a municipality;
‘it extends liability to a municipal organization where that organization’s failure to train,
or the policies or customs that it has sanctioned, led to an independent constitutional
violation,’” Gem Fin. Serv., Inc. v. City of New York, 298 F. Supp. 3d 464, 490 (E.D.N.Y.
2018) , as amended (June 27, 2018) (quoting Segal v. City of New York, 459 F.3d 207, 219
(2d Cir. 2006)). “In other words, Monell is not a cause of action, but is rather a form of
liability.” Watkins v. Town of Webster, 592 F. Supp. 3d 96, 118-19 (W.D.N.Y. 2022).
Accordingly, the Court dismisses Plaintiff’s third cause of action as a standalone claim but
considers the allegations against Wayne County contained therein in the context of
Plaintiff’s other substantive claims.
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plausibly allege Monell liability, thereby warranting dismissal of Wayne County pursuant
to Rule 12(c). (Dkt. 69-21 at 24-28). The Court agrees and accordingly dismisses Wayne
County as a Defendant.
“A plaintiff cannot allege a Monell claim where he has not alleged a valid underlying
constitutional deprivation.” Lacey v. Yates Cnty., 30 F. Supp. 3d 213, 228 (W.D.N.Y.
2014) (citing Johnson v. City of New York, 551 Fed. App’x. 14, 15 (2d Cir. 2014)). As
discussed above, Plaintiff’s surviving constitutional causes of action are the false arrest and
malicious prosecution claims against Deputy D’Amato and the excessive force claim
against both Deputy D’Amato and Deputy Scribner. In order to hold Wayne County liable
for these alleged constitutional deprivations, Plaintiff must “demonstrate[] that the
constitutional violation complained of was caused by a municipal ‘policy or custom.’” Id.
(citing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694-95 (1978)).
“To allege the existence of an affirmative municipal policy, a plaintiff must make factual
allegations that support a plausible inference that the constitutional violation took place
pursuant either to a formal course of action officially promulgated by the municipality’s
governing authority or the act of a person with policymaking authority for the
municipality.” Id. (quoting Missel v. Cnty. of Monroe, 351 F. App’x 543, 545 (2d Cir.
2009)). “Mere boilerplate assertions that a municipality has such a custom or policy, which
resulted in a deprivation of the plaintiff's rights, do not rise to the level of plausibility.” Id.
(quotations omitted).
Furthermore, “isolated acts . . . by non-policymaking municipal employees are
generally not sufficient to demonstrate a municipal custom, policy, or usage that would
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justify liability.” Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012) (citation
omitted). Indeed, the acts and practices must be “so persistent and widespread as to
practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011); see also
Giaccio v. City of New York, 308 Fed. App’x. 470, 472 (2d Cir. 2009) (affirming summary
judgment in favor of defendants dismissing Monell claim where plaintiff identified, “at
most, only four examples” of constitutional violations, because “[t]his evidence falls far
short of establishing a practice that is so persistent and widespread as to justify the
imposition of municipal liability.”) (summary order) (internal quotations omitted).
Here, Plaintiff’s allegations of municipal liability do not rise above “mere
boilerplate assertions.” In conclusory fashion, Plaintiff alleges that “it was the custom,
policy and practice of Wayne [County], to tolerate, condone, and encourage constitutional
violations, such as those alleged by Plaintiff herein. . . .” (Dkt. 1 at ¶ 53). Plaintiff similarly
asserts that “it was the custom, policy and practice of Wayne [County] to authorize and
permit certain Deputy Sheriffs, including the individual Defendants, to cause the search
and seizure of Plaintiff’s person despite the lack or a warrant or any other justification that
would justify the search and seizure.” (Id. at ¶ 56). Plaintiff alleges that Deputy D’Amato
only engaged in one similar incident in 2020 and that this was the second time Plaintiff had
been subjected to a false arrest, excessive force, and assault. (Id. at 58-59). Two incidents
are not sufficient to establish a persistent and widespread practice necessary to maintain a
Monell claim. Plaintiff’s allegations are wholly conclusory and he fails to set forth facts
supporting his allegations. Accordingly, Plaintiff’s claims against Wayne County are
dismissed.
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N. State Law Claims
Plaintiff asserts claims pursuant to the New York State Constitution, in addition to
common law tort claims of assault and battery, and negligent hiring, supervision, and
retention. (Dkt. 1 at ¶¶ 65-72, 84-103). For the reasons discussed below, only Plaintiff’s
state-law assault and battery claim may proceed to trial.
1. New York State Constitution
Plaintiff asserts substantive and procedural due process claims pursuant to the New
York State Constitution. (Dkt. 1 at ¶¶ 65-72). These claims must be dismissed as courts
in this Circuit “have consistently held that there is no private right of action under the New
York State Constitution where, as here, remedies are available under [Section] 1983.”
Talarico v. Port Auth. of New York & New Jersey, 367 F. Supp. 3d 161, 171 (S.D.N.Y.
2019) (alteration in original) (citations omitted).
“Accordingly, where a complaint alleges no theories of liability that are cognizable
exclusively under the New York State Constitution, any claims brought under the state
constitution are ordinarily dismissed.” Id.; see also Gounden v. City of New York, No. 14
Civ. 7411(BMC), 2015 WL 5793625, at *5 n.3 (E.D.N.Y. Oct. 2, 2015) (“It is a common
view among District Courts in this Circuit, however, that there is no right of action under
the New York State Constitution for claims that can be brought under § 1983.”) (citation
omitted). Plaintiff asserted substantive and procedural due process violations under both
the New York State Constitution and the United States Constitution. (Dkt. 1 at ¶¶ 67, 70).
Consequently, because Plaintiff’s complaint alleges no theories of liability that are
“cognizable exclusively under the New York State Constitution,” his claims brought under
- 42 -

the New York State Constitution are dismissed. Talarico, 367 F. Supp. 3d at 172
(concluding that plaintiff’s “state-law claims rise or fall with her Section 1983 claims”).
2. Assault and Battery
Plaintiff asserts a state law claim for assault and battery against Wayne County,
Deputy D’Amato, Deputy Scribner, and the Deputy John Does. (Dkt. 1 at ¶¶ 84-96).
Defendants argue that this claim must be dismissed for the same reasons as Plaintiff’s
excessive force claim. (Dkt. 69-21 at 33).15 To the extent the claim is asserted against
Deputy D’Amato and Deputy Scribner, the Court disagrees. And because the theory of
municipal liability is different with respect to the assault and battery claims as opposed to
the § 1983 claims, the claim may also proceed against Wayne County.
“Except for § 1983’s requirement that the tort be committed under color of state
law, the essential elements of excessive force and state law assault and battery claims are
substantially identical.” Humphrey v. Landers, 344 Fed. App’x. 686, 688 (2d Cir. 2009)
(summary order) (quoting Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir. 1991) (alterations
omitted); see also Benson v. Yaeger, No. 05–CV–784S, 2009 WL 1584324, at *4 n.6

15

Defendants also argue that the assault and battery claim must be dismissed because
Plaintiff has only alleged negligent conduct. (Dkt. 69-21 at 32-33). The Court disagrees.
Although unartfully pled, Plaintiff alleges in his assault and battery claim that “Defendant’s
actions were intentionally, recklessly and/or negligently done to intimidate and did cause
physical pan and emotional distress to Plaintiff.” (Dkt. 1 at ¶ 90). Construing his complaint
liberally, Plaintiff plainly alleges that Defendants actions were intentional—especially
when one considers that Plaintiff is proceeding pro se and therefore not held to the same
standard as an attorney. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir. 2006) (“It is well established that the submissions of a pro se litigant must be construed
liberally and interpreted to raise the strongest arguments that they suggest.” (quotations
omitted)).
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(W.D.N.Y. June 3, 2009) (“The test for whether a plaintiff can maintain a New York State
law assault and battery cause of action against law enforcement officials is the exact same
test as the one used to analyze a Fourth Amendment excessive force claim . . . .”) (quotation
omitted). In fact, a state-law claim for assault and battery is “more plaintiff friendly,
because under New York law ‘[i]f an arrest is determined to be unlawful, any use of force
against a plaintiff may constitute an assault and battery, regardless of whether the force
would be deemed reasonable if applied during a lawful arrest.’” Graham v. City of New
York, 928 F. Supp. 2d 610, 624-25 (E.D.N.Y. 2013) (quoting 5 Borough Pawn, LLC. v.
Marti, 753 F. Supp. 2d 186, 201 (S.D.N.Y. 2010)). Because there is a question of fact
regarding whether Defendant D’Amato had probable cause to arrest Plaintiff, and because
the record is not at all clear on the extent of any force used and amount of any injuries
inflicted, summary judgment is denied as to Deputy D’Amato and Deputy Scribner. See
id. at 625; Mesa v. City of New York, No. 09 CIV. 10464 JPO, 2013 WL 31002, at *32
(S.D.N.Y. Jan. 3, 2013) (“[Plaintiff’s] assault and battery claims also survive summary
judgment, as there are issues of material fact related to the probable cause for her arrest.”).16

16

Defendants do not expressly argue that Deputy D’Amato or Deputy Scribner are
entitled to qualified immunity on Plaintiff’s state-law assault and battery claim. But even
if they had, the Court would decline to find those defendants entitled to qualified immunity
for the same reasoning discussed in connection with the excessive force claim. Graham,
928 F. Supp. 2d at 625 (“The standard for determining whether police officers enjoy
immunity for false arrest and assault and battery actions is the same under state law as it is
under federal law.”).

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Furthermore, “[a]lthough a municipality cannot be held vicariously liable on a
section 1983 claim, under New York state law, a municipality may be held vicariously
liable on state law claims asserted against individual officers under a theory of respondeat
superior.” Marcano v. City of Schenectady, 38 F. Supp. 3d 238, 267 (N.D.N.Y. 2014).
“This includes claims against a municipality for the actions of its officers in committing
assault and battery.” Id. Defendants do not address this issue in their motion papers.
Because issues of fact preclude summary judgment in favor of Deputy D’Amato or Deputy
Scribner on the assault and battery claims, Wayne County is also not entitled to summary
judgment as it may be held liable under a theory of respondeat superior. See Warr v.
Liberatore, 270 F. Supp. 3d 637, 654 (W.D.N.Y. 2017).
3. Negligent Hiring, Supervision, and Retention
Defendants argue that Plaintiff’s claim against Wayne County for negligent hiring,
improper supervision, and improper retention must be dismissed because Plaintiff failed to
state a cognizable claim and that the claim is unsupported by the record. (Dkt. 69-21 at
33-34). The Court agrees with Defendants and accordingly dismisses Plaintiff’s claim for
negligent hiring, improper supervision, and improper retention.
“A claim for negligent hiring, retention, [and] supervision . . . is based on the
employer’s direct negligence.” Cruz v. New York, 24 F. Supp. 3d 299, 311 (W.D.N.Y.
2014) (quotation omitted). Negligent hiring and retention claims “arise from an employer
having placed the employee in a position to cause foreseeable harm, harm which the injured
party most probably would have been spared had the employer taken reasonable care in
making its decision concerning the hiring and retention of the employee.” Id. (quotation
- 45 -

omitted). “Similarly, claims for negligent supervision and training arise when an employer
has notice of the employee’s tendency for the bad conduct and its lack of supervision or
inadequate training is the proximate cause of a plaintiff’s injuries.” Id. (quotation and
alterations omitted). “[A]n essential element of a cause of action in negligent hiring,
retention, supervision, and training is that the employer knew or should have known of the
employee’s propensity for the conduct which caused the injury.” Bouche v. City of Mount
Vernon, No. 11-CV-5246, 2012 WL 987592, at *9 (S.D.N.Y. Mar. 23, 2013). Furthermore,
a “cause of action for negligent hiring or retention requires allegations that the employer
failed to investigate a prospective employee notwithstanding knowledge of facts that would
lead a reasonably prudent person to investigate that prospective employee.” Tsesarskaya
v. City of New York, 843 F. Supp. 2d 446, 464 (S.D.N.Y. 2012) (quotation and alteration
omitted).
Here, Plaintiff’s negligent hiring, supervision, and retention claim is akin to his
freestanding Monell claim. Plaintiff asserts that “[u]pon information and belief, it was the
custom, policy and practice of Wayne [County] to hire certain Deputy Sheriff’s [sic] . . .
without conducting the appropriate background checks, investigations, and psychological
evaluations.” (Dkt. 1 at ¶ 98). Plaintiff similarly asserts that it was Wayne County’s
custom, policy, and practice to conduct inadequate investigations and to continue to
employ deputies after they commit constitutional rights violations. (Id. at ¶¶ 99-100). To
support these conclusory assertions, Plaintiff alleges that he previously filed a complaint
with the Wayne County Sheriff’s Office against Deputy D’Amato due to a “similar incident

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that occured [sic] on June 13, 2020” and that Deputy D’Amato was not disciplined. (Dkt.
1 at ¶ 58).
However, Plaintiff did not submit any evidence of Wayne County’s hiring, training,
supervision or retention policies generally or as applied to the individual defendants.
Plaintiff also did not submit any evidence of the complaint he alleged that he previously
filed against Deputy D’Amato. Without the complaint or any additional sworn testimony
from Plaintiff regarding the prior “similar incident” it is impossible to conclude that issues
of fact exist as to whether Wayne County had “notice of the employee’s tendency for the
bad conduct,” see Cruz, 24 F. Supp. 3d at 311. Similarly, without any evidence of the
Defendants’ policies and procedures, Plaintiff’s assertions are based purely on speculation.
Accordingly, Plaintiff’s negligent hiring, supervision, and retention claim does not rise
above “conclusory allegations or unsubstantiated speculation” necessary to defeat
Defendants’ summary judgment motion, see Robinson, 781 F.3d at 44, and must therefore
be dismissed.
Additionally, Plaintiff’s claim for negligent hiring, supervision, and retention also
fails because he alleges that the individual defendants were acting within their scope of
employment. “To maintain a claim against a municipal employer for the negligent hiring,
training, and retention of a tortfeasor under New York law, a plaintiff must show that the
employee acted outside the scope of her employment.” Velez v. City of New York, 730 F.3d
128, 136-37 (2d Cir. 2013) (quotations and citation omitted). Plaintiff alleges in his
seventh cause of action that “[a]t all times mentioned, Defendants were acting within the
scope of employment as Deputy Sheriffs.” (Dkt. 1 at ¶ 91). He also asserts that “[a]t all
- 47 -

times mentioned, all officers and employees of Wayne [County] were acting within the
scope of their employment.” (Id. at ¶ 92). As Plaintiff concedes that the individual
defendants were acting within the scope of employment, his negligent hiring, supervision,
and retention claim must be dismissed against Wayne County. See Velez, 730 F.3d at 137
(dismissing negligent training claim where the plaintiff “conceded that the defendants were
acting within the scope of their employment”).
O. Punitive Damages
Plaintiff asserts that he is entitled to an award of punitive damages for each of his
causes of action except for his freestanding Monell claim. (Dkt. 1 at ¶¶ 44, 51, 68, 72, 83,
103). Defendants argue that there is no basis for punitive damages in this matter. (Dkt.
69-21 at 36).
“Punitive damages may be awarded in a § 1983 action ‘when the defendant’s
conduct is shown to be motivated by evil motive or intent, or when it involves reckless or
callous indifference to the federally protected rights of others.’” New Windsor Volunteer
Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 121 (2d Cir. 2006) (quoting Smith v.
Wade, 461 U.S. 30, 56 (1983)). “The purpose of punitive damages is ‘to punish the
defendant and deter him and others from similar conduct in the future.’” Lin v. Cnty. of
Monroe, 66 F. Supp. 3d 341, 362 (W.D.N.Y. 2014) (quoting Lee v. Edwards, 101 F.3d 805,
809 (2d Cir. 1996)). “Although punitive damages are not available against municipalities
or against individuals sued in their official capacities, punitive damages may be awarded
against defendants sued in their individual capacities.” Id. (quotation omitted).

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Based on the record before the Court, it is premature to preclude Plaintiff from
pursuing punitive damages at this time. “Generally, the issue of whether to award punitive
damages is an issue for the jury to decide based on an evaluation of the plaintiff[’s] proof
of sufficiently serious misconduct.” Id. (quotation omitted); see Picciano v. McLoughlin,
723 F. Supp. 2d 491, 506 (N.D.N.Y. 2010) (“Where the plaintiff has provided sufficient
evidence to overcome summary judgment with respect to excessive force, the Court cannot
state as a matter of law that the [plaintiff] is not entitled to punitive damages.”) (quotation
omitted). Plaintiff has provided sufficient evidence to overcome summary judgment on
several of his claims. It will be left to the trier of fact to determine if Plaintiff’s proof meets
the sufficiency of serious misconduct to merit an award of punitive damages. See Lin, 66
F. Supp 3d. at 362-63 (permitting the plaintiff to pursue a punitive damages award against
the defendant in his individual capacity related to excessive force claim).
CONCLUSION
For the foregoing reasons: (1) Defendants’ motion for judgment on the pleadings
and summary judgment (Dkt. 69) is granted in part and denied in part; (2) Plaintiff’s motion
to file a sur-reply (Dkt. 86) is denied; (3) Plaintiff’s motion to reopen discovery (Dkt. 88)
is denied; and (4) Defendants’ motion to reject Plaintiff’s motions (Dkt. 90) is denied as
moot. Plaintiff may proceed to trial on the following claims against the following
defendants: (1) his false arrest claim under § 1983 against Deputy D’Amato; (2) his
malicious prosecution claim under § 1983 against Deputy D’Amato; (3) his excessive
force claim under § 1983 against Deputy D’Amato and Deputy Scribner; and (4) his assault
and battery claim under state law against Deputy D’Amato, Deputy Scribner, and Wayne
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County. All other claims and defendants not referenced are hereby dismissed with
prejudice.
SO ORDERED.

________________
_
_______
_____________
_________________________________
ELIZABE
ETH A.
A. WOLFORD
WOL
LFORD
ELIZABETH
Juddge
Chief Judge
United States District Court
Dated:

March 10, 2025
Rochester, New York

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